In the wake of a U.S. Supreme Court decision directing the federal government to facilitate the return of man mistakenly sent to El Salvador, a lower federal court and the Justice Department have clashed over next steps in the case.
In a unanimous order issued on Thursday, the Supreme Court instructed a district court to facilitate the return of Kilmar Armando Abrego Garcia to the United States from El Salvador. However, Abrego Garcia’s future remains uncertain after a disagreement between a federal judge and government officials arose on Friday over how to implement the Supreme Court’s directive.
On March 15, 2025, the United States had removed Abrego Garcia from the United States to El Salvador, where he is currently detained in the Center for Terrorism Confinement (CECOT). The government later acknowledged that Abrego Garcia was subject to a withholding order forbidding his removal to El Salvador, and that his removal to El Salvador was in error.
After orders and opinions on Thursday from the Supreme Court and a federal district court, the fate of Abrego Garcia was back in the district court in Maryland, where a judge asked for a response from the federal government by Friday morning about Abrego Garcia’s current status. As reported in The Washington Post, the Justice Department said it could not meet the two deadlines set by the district court until Tuesday, and it questioned whether the judge had considered the Supreme Court’s decision completely.
The Supreme Court’s Decision
On Friday, April 4, 2025, the U.S. District Court for the District of Maryland ordered the government to “facilitate and effectuate the return of [Abrego Garcia] to the United States by no later than 11:59 PM on Monday, April 7.” On April 7, Chief Justice John Roberts had referred to the full Supreme Court a Trump administration request to stay the district court decision on Abrego Garcia’s fate.
On April 10, 2025, Chief Justice Roberts issued a four-page decision in Noem v. Abrego Garcia. Roberts found the district court order “properly requires the government to ‘facilitate’ Abrego Garcia’s release from custody in El Salvador and to ensure that his case is handled as it would have been had he not been improperly sent to El Salvador.” However, the Court also found that the word “effectuate” in the District Court’s order was unclear, and its requirements could exceed the District Court’s authority depending on how the lower court defines the term.
“The District Court should clarify its directive, with due regard for the deference owed to the Executive Branch in the conduct of foreign affairs. For its part, the government should be prepared to share what it can concerning the steps it has taken and the prospect of further steps,” Roberts wrote.
There were no dissents in the Court’s order, although Justice Sonia Sotomayor issued a separate statement, joined by Justices Elena Kagan and Ketanji Brown Jackson, noting: “I would have declined to intervene in this litigation and denied the application in full. Nevertheless, I agree with the Court’s order that the proper remedy is to provide Abrego Garcia with all the process to which he would have been entitled had he not been unlawfully removed to El Salvador.”
The Justice Department has claimed the use of the word “effectuate” in the district court’s order conflicted with foreign policy powers granted by the Constitution to the president. “There can be no question about what ‘effectuating’ Abrego Garcia’s ‘return’ means: It means that the government must ‘return Abrego Garcia to the United States,’” stated Solicitor General Counsel of Record D. John Sauer in a brief filed on April 8 seeking to vacate the district court injunction.
“Abrego Garcia is a citizen of El Salvador being detained in El Salvador by the government of El Salvador. To demand Abrego Garcia’s return is thus to demand that a foreign nation release one of its own citizens from one of its own detention centers and return him to the United States,” Sauer said. “Ordering Abrego Garcia’s return offends the separation of powers, which forbids one branch from dictating to another how that branch should exercise its core and exclusive powers.”
In a separate brief, Abrego Garcia’s attorneys dismissed that argument. “The government’s contentions that the district court’s order improperly encroached on the Executive’s prerogative to manage foreign affairs are unavailing. Courts routinely exercise jurisdiction to protect individual rights, including in immigration cases, without impinging on the Executive’s ability to conduct foreign affairs.”
“The district court’s order requiring the government to ‘facilitate and effectuate’ the return of Abrego Garcia merely requires the government to correct its own admitted error, thereby ensuring that the president fulfills his obligation to ‘take care that the Laws be faithfully executed,’” Abrego Garcia’s attorneys claimed.
Next Steps in the Case
After the Supreme Court’s decision, the case headed back to the federal court in Maryland, where U.S. District Court Judge Paula Xinis on April 10 had ordered the government “to take all available steps to facilitate the return of Abrego Garcia to the United States as soon as possible.” In her order, Judge Xinis, addressed the Supreme Court’s order to clarify what the word “effectuate” meant on remand.
“To this end, the Court hereby amends the Order to DIRECT that Defendants take all available steps to facilitate the return of Abrego Garcia to the United States as soon as possible,” Xinis wrote, with the word “direct” in upper-case letters.
Xinis then directed the government to file, by 9:30 a.m. on Friday, April 11, a supplemental declaration addressing: the current physical location and custodial status of Abrego Garcia; what steps, if any, it has taken to facilitate Abrego Garcia’s immediate return; and what additional steps the government will take, and when, to facilitate his return. Xinis said the government could supply the information under seal, if needed. Xinis also told the Justice Department to provide her with daily updates on what actions is taking to facilitate Abrego Garcia’s return to the United States.
On Friday morning, the Justice Department said it could not meet the 9:30 a.m. deadline set by Xinis or a two-hour extension from the judge, arguing that the deadline set was “impracticable.” Instead, the Justice Department asked the court for a deadline of 5 p.m. on Tuesday. It also claimed that Xinis had misconstrued the Supreme Court’s requirement to define the word “effectuate.”
“It is unreasonable and impracticable for Defendants to reveal potential steps before those steps are reviewed, agreed upon and vetted,” the Justice Department told Xinis in a written statement. “Foreign affairs cannot operate on judicial timelines, in part because it involves sensitive country-specific considerations wholly inappropriate for judicial review.”
Among its other arguments, the government now claims that Abrego Garcia has been found to be a member of the gang MS-13, and that his return to the United States would pose a threat to the public. Abrego Garcia and his attorney’s deny that he is a member of MS-13, and that he has lived in the United States with his family for a decade without being charged with a crime.
Abrego Garcia’s attorneys also referenced another recent immigration decision in its court briefs, Trump v. J.G.G, where the Court said on Monday that a case involving a deportation under the Alien Enemies Act (AEA) should be sent to a federal court in Texas as a proper jurisdiction under the constitutional right of habeas corpus.
“Although this case does not implicate the AEA, J.G.G.’s due process holding supports Abrego Garcia’s position that the government violated his due process rights by removing him to El Salvador,” said attorney Andrew J. Rossman.
Scott Bomboy is the editor in chief of the National Constitution Center.
