Calling Their Bluff

The clock is ticking on a federal judge’s order to return a migrant wrongfully deported to a notorious prison in El Salvador.

AP Photo/Jose Luis Magana

Update: Since publication of this piece this morning, a unanimous panel of the Fourth Circuit issued a ruling upholding the district court’s ruling.

"The United States Government has no legal authority to snatch a person who is lawfully present in the United States off the street and remove him from the country without due process," the judges said. "The Government's contention otherwise, and its argument that the federal courts are powerless to intervene, are unconscionable."

Before the ruling issued, the White House appealed the district court’s decision directly to the Supreme Court. Moments ago, Chief Justice Roberts issued an administrative stay on the order, requesting a response to the application be filed no later than tomorrow, April 8, 2025, at 5 p.m.

The moment our government began deporting and rendering migrants to prisons in foreign countries, I knew things would inevitably come to a head. Sooner or later, the government would make a mistake and deport someone who was completely innocent to one of these prisons. And then it would be sued to bring that person back.

In such a circumstance, I knew it would be helpful to have a clean and undisputed record. And in the case heard on Friday, with a follow-up written ruling issued Sunday, that is what we now have.

The government deported Kilmar Armando Abrego Garcia, a Salvadoran migrant, to a notorious prison camp in El Salvador called CECOT. It’s normally reserved for terrorists and the most dangerous of prisoners. But the deportation was a “clerical mistake”: Abrego Garcia’s case had already been adjudicated by an immigration judge, who had ruled six years ago that he could legally stay in the U.S. His deportation to CECOT was due to an “administrative error,” admits the government.

This nightmare sounds like something out of the movie Brazil. The government concedes all of the facts and its own error. But it now argues that the federal judiciary no longer has jurisdiction because Abrego Garcia is already in El Salvador.

Think about that for just a moment. The executive branch is claiming that it can deprive the judicial branch of jurisdiction simply by rushing people, even completely innocent ones, out of the U.S. and into foreign prisons.

Federal District Court Judge Paula Xinis saw right through this in her ruling. And she has now called the government’s bluff by demanding it return Garcia by midnight tonight.

Given how important this case is to what we understand our Constitution to be, I want to break this case into a few key discussion points.

Garcia had legal permission from a judge to remain

The victim Abrego Garcia’s story is full of challenges and tragedies, now compounded many times by the actions of our government.

His family had what Judge Xinis described as a “small and successful” business in El Salvador making pupuserias—a popular national dish made of thick corn tortillas stuffed with fillings. Like many businesses there, however, Abrego Garcia’s family’s was extorted, including via death threats, for many years by Barrio 18, a dangerous gang.

Wrote Judge Xinis,

“The gang used Abrego Garcia as a pawn in its extortion, demanding that his mother give Abrego Garcia over to the gang or he and others in their family would be killed. Attempting to escape the gang’s reach, the family moved three times without success. To protect Abrego Garcia, they ultimately sent him to the United States to live with his older brother, a U.S. citizen, in Maryland.”

Abrego Garcia was working as a day laborer when ICE arrested and detained him. It accused him of having ties to a rival gang known as MS-13, but a judge who heard his case ruled that he had a credible fear of persecution by Barrio 18 back home and granted him permission to stay. The Trump DHS did not appeal that ruling.

In 2019, he was released back into the U.S., per the judge’s order, where he lived his life without incident, criminal record or gang involvement for the next six years.

But his long nightmare was not over.

The government has no credible evidence of gang membership

Abrego Garcia was living in Maryland with his wife and son, who are both U.S. citizens, when immigration authorities once again detained him in 2025. They summarily deported him to a prison in El Salvador on March 15, due to what they now admit was an “administrative error.”

The Trump administration, through Attorney General Pam Bondi and Press Secretary Karoline Leavitt, is now on a mission to justify this error. The White House keeps telling the public that Abrego Garcia has ties to MS-13 and is a gang member—indeed, it claims, a “leader” of the gang—but this is wholly without factual basis. Abrego Garcia himself has long denied ever having any links to that gang.

Nevertheless Leavitt claimed on April 1, and not as some sick joke, that there’s “a lot of evidence” that Abrego Garcia was a convicted member of the gang MS-13, adding that “I saw it this morning.”

(It’s admittedly hard to watch all of that propaganda from Leavitt without smoke coming out of your ears.)

Her statement was a lie. Abrego Garcia has no criminal convictions. And if she saw evidence of gang membership that morning, where is it now? Where was it on Friday when the court held a hearing on the matter of Abrego Garcia?

Just as it did when claiming publicly that there was “massive evidence of fraud” around a stolen 2020 election, when the Trump administration actually got to court, it offered up none of that evidence.

That’s because it doesn’t exist. If they had it, they’d have submitted it.

Indeed, the only evidence the government has ever proffered is wholly meaningless. As Judge Xinis wrote in her opinion in a footnote for the ages, “The ‘evidence’ against Abrego Garcia consisted of nothing more than his Chicago Bulls hat and hoodie and a vague, uncorroborated allegation from a confidential informant claiming he belonged to MS-13’s ‘Western’ clique in New York—a place he has never lived.”

In other words, someone somewhere said he was a gang member in a place he never even lived, and that was enough to get him sent to a top security prison in El Salvador.

The Justice Department claims its hands are tied

It gets worse. Not only did the government admit that it made a mistake sending Abrego Garcia to a prison in El Salvador, it now says, “Sorry, it’s too late, we can’t do anything about that.”

Two things to note here.

First, that’s simply outrageous. If the government can send people to foreign prisons and then claim there’s no way to get them back, we no longer have any real constitutional protections. Due process would give way to a race to spirit people away before any court can rule—something we already saw as this lawless White House raced to fly migrants out of Texas in defiance of a court’s direct order.

Second, that’s simply factually wrong. As Judge Xinis noted, there are plenty of instances where “Defendants can and do return wrongfully removed migrants as a matter of course.” Further, the administration has admitted that it outsourced part of our prison system to El Salvador, so the government can act to compel the contracting party to return migrants. “This is not about Defendants’ inability to return Abrego Garcia, but their lack of desire,” she concluded.

Even the government’s attorney had no answers for the judge on why a return of Abrego Garcia was impossible. There was this exchange, for example:

THE COURT: Can we talk about, then, just very practically, why can't the United States get Mr. Abrego Garcia back?

MR. REUVENI: Your Honor, I will say, for the Court's awareness, that when this case landed on my desk, the first thing I did was ask my clients that very question. I've not received, to date, an answer that I find satisfactory.

Any ruling by the appellate panel or SCOTUS that allows the government to wash its hands of a problem that it created would open the door wide to further, terrible abuse. The stakes here could not be higher.

Experienced immigration attorney sacked for not “following orders”

The government sent in one of its top immigration attorneys, Erez Reuveni, to argue on its behalf. But it didn’t give him any factual basis for opposing the judge’s order or even any legal reasoning for why the prisoner could continue to be held.

The result was predictable, and the admissions by Reuveni were remarkable. “We have nothing to say on the merits. We concede he should not have been removed to El Salvador,” Reuveni told Judge Xinis.

And when asked what grounds there were to hold Abrego Garcia in prison, Reuveni responded, “I don’t know. That information has not been given to me. I don’t know.”

Remember, Press Secretary Leavitt earlier claimed just days earlier that she personally had reviewed the evidence of Abrego Garcia’s criminal record and gang affiliations, and there was lots of it.

This led the judge to summarize the case quite sternly:

“Abrego Garcia’s case is categorically different—there were no legal grounds whatsoever for his arrest, detention, or removal. Nor does any evidence suggest that Abrego Garcia is being held in CECOT at the behest of Salvadoran authorities to answer for crimes in that country. Rather, his detention appears wholly lawless.”

The drubbing in open court then led the Justice Department to an eye popping decision: to discipline its own attorney for not having anything more to say in the government’s defense. After Reuveni expressed open frustration that he didn’t have answers to Judge Xinis’s questions, the Justice Department put him on indefinite leave for failing to follow orders.

“At my direction, every Department of Justice attorney is required to zealously advocate on behalf of the United States,” AG Bondi wrote in a statement to The Times. “Any attorney who fails to abide by this direction will face consequences.”

To sum up this shit show, the government sent an innocent man to a notorious prison due to an administrative error, lied to the public about his non-existent gang affiliations in order to tarnish his character, failed to submit any of that so-called evidence in actual court, then fired the attorney sent in to argue the case because he had zilch to go on.

If this is the case they want to take to the Supreme Court, I say we might as well roll the dice. We aren’t going to get a much clearer case of abuse, lies, incompetence and retribution by the Trump administration than this.

It’s time to bring Abrego Garcia—and all other unlawfully deported migrants—back to the U.S. and put an end to this practice, before more innocent lives are destroyed along with all semblance of constitutional rights and the rule of law.