"The Record Reflects Defendants Have Done Nothing at All"
On Tuesday, a federal judge in Maryland, Paula Xinis, took up Kilmar Armando Abrego Garcia’s motion for “additional relief.” The motion asked the Judge to:
Order the Government to take specific steps by Monday, April 14, 2025, including requesting Abrego Garcia’s release under the contract the U.S. has with El Salvador and returning him safely to the United States.
Order expedited discovery of the Government’s actions (or failure to act) to facilitate Abrego Garcia’s return to the United States.
Begin contempt proceedings against the government for “failure to comply with the Court’s prior orders.”
This post is going to be a little bit long, but I think it’s worth it if you want to make sure you understand both the Abrego Garcia case and why it matters for all of us and for the future of our country, as well as for him and his family. So, stick with me.
Judge Xinis put Abrego Garcia’s first and third requests on a brief hold, while ordering the government to divulge information about its agreement with El Salvador to house U.S. deportees and the specific steps it has taken in Abrego Garcia’s case to facilitate his return to the United States. The “expedited discovery” procedure she established gives the government two weeks to respond to a series of questions (called “interrogatories”) and requests for production of documents. Abrego Garcia’s lawyers can also take depositions of four specified government officials and two players to be named based on what they learn in discovery. The entire process has to be completed by Monday, April 28, when Abrego Garcia’s lawyers are directed to supplement their original motion for additional relief.
The delay of two weeks is designed to level the playing field and give Abrego Garcia’s lawyers access to information the government has refused to provide that will permit them to marshal the facts to best support their requests for both his return to the United States and the contempt process. It also gives the government two weeks to find some way to save face by defusing the situation and the constitutional confrontation the country is in, by simply returning the man for due process proceedings in this country.
So far, the Trump administration’s approach has been characterized by the same personal failing the president who leads it has: the inability to acknowledge and correct mistakes. There has been no suggestion in the administration’s public comments, which have been aggressive, to suggest they might do so. Attorney General Pam Bondi has said Abrego Garcia is a dangerous and violent man, a leader of the MS-13 gang, although no court appears to have countenanced that finding. He appears to be, like so many others, a person who is present in this country without legal immigration status, a husband and father whose family misses him. But regardless of where the truth lies, criminal or not, Abrego Garcia is entitled to due process before he is deported, and the government that denied him that right is obligated, per decision of the Supreme Court, to return him to this country so he can receive it.
In her order, Judge Xinis wrote, “Defendants therefore remain obligated, at a minimum, to take the steps available to them toward aiding, assisting, or making easier Abrego Garcia’s release from custody in El Salvador and resuming his status quo ante. But the record reflects that Defendants have done nothing at all.” Any party other than the government would already be in contempt proceedings, if not the U.S. Marshal’s lockup.
There are questions ahead as to how the courts will enforce their orders against a president who has little regard for them and seemingly none at all for the rule of law when it runs contrary to his objectives. But before we get there, Judge Xinis is doing her level best to create a factual record for the courts to base their decisions on. That’s what the judiciary is supposed to do—determine the law based on the facts.
Even before expedited discovery commences, she has laid down some facts on her own, objecting to the government’s argument that “facilitate” is limited to “taking all available steps to remove any domestic obstacles that would otherwise impede the alien’s ability to return here.” She notes that “facilitating return of those wrongly deported can and has included more extensive governmental efforts, endorsed in prior precedent and DHS publications.” The details come in a lengthy footnote:
She cited a 2014 case where “the litigation centered entirely on the Government’s practices and policies for returning wrongly removed noncitizens to the United States for further immigration proceedings in connection with that litigation” and the government “clarified for the Supreme Court the Government’s ‘policy and practice’ of ‘facilitating’ return after removal.” In other words, when Judge Xinis ordered the government to “facilitate” Abrego Garcia’s return to the United States, she wasn’t just pulling the word out of thin air. She was relying on long-established practices that have content and meaning for the federal government’s immigration authorities and operations.
In that case, the government had acknowledged that its “ultimate objective was ‘[t]o effectuate return,’ which could include steps such as ‘grant[ing] parole and send[ing] a cable to the consulate or embassy nearest to the alien with instructions to issue a travel document….’”
She also noted specific instances where the government had facilitated returns, including one where the ICE attaché in South Africa facilitated “the return of a removed noncitizen in Ethiopia” and another where “the Government worked with the U.S. Embassy in Tokyo to secure a return.” She also noted “the return of Jo Desire from Haiti with assistance from the United States Marshal Service, which manned the Government airplane that flew to Haiti to retrieve Desire.”
Finally, in a move highly relevant to this case, where the government has done little more than wink at the court’s order requiring it to give her daily reports on its efforts to facilitate Abrego Garcia’s return, she noted that discovery in an earlier case “reflected the Government’s practice of ‘log[ging] all efforts’ to facilitate return as a matter of course.”
While the courts compile evidence of the Trump government’s failures to live up to what the Constitution and the rule of law require of it, the importance of this issue and the denial of Abrego Garcia’s due process rights seem to be breaking through to the public. In a town hall held by a conservative Trump ally in Fort Madison, Iowa, Senator Chuck Grassley found himself facing angry constituents.
Grassley visits every county in his state annually. Iowa is a deep-red state, and the hostility from this audience was unusual. “You going to bring that guy back from El Salvador?” someone shouted at him.
Grassley: “That’s not a power of Congress.”
An older gentleman in the room shouted, “If I get an order to pay a ticket to pay $1200 and I just say ‘no’, does that stand up? Because he just got an order from the Supreme Court and he just said ‘screw it.’”
In other words, Americans understand due process. They get what it means. They get what Trump is trying to take away from them, while Republicans in Congress merely roll over and show him their belly.
Another constituent pushed Grassley: “We would like to know what you, as the people, the Congress, who are supposed to rein in this dictator, what are you going to do about these people who have been sentenced to life imprisonment in a foreign country with no due process?” As the senator hesitated, others shouted at him, “Trump’s not obeying the Supreme Court. He just ignores them!” “You’re allowing it to happen!”
They may not know his name, but Abrego Garcia’s case has broken through. The Trump administration has made him the face of its mass deportation policy. He doesn’t come across as the kind of scary, violent criminal they promised to remove from American cities. Instead, Americans are waking up to the possibility that “illegal immigrants” might mean their beloved friends and neighbors. They can be parents whose kids love them. The problem is nuanced, and whisking people away to a facility for terrorists in El Salvador is hardly in line with Americans’ ideas about justice, fair play, and who we want to be. We are a country steeped in the principle that we should prevent innocent people from going to prison, and without due process, anyone, even an American citizen, could fall into the trap the Trump government has set.
Our immigration system is broken. But the fix we need should come from Congress, not a harsh dictator in El Salvador—a fix like the one Democrats offered in 2024, one that included virtually everything Republicans had asked for for over a decade, but that they rejected because Donald Trump ordered them to. Speaker Mike Johnson called it “dead on arrival” despite bipartisan efforts to get to a compromise bill. (We discussed that at length here and here at the time.)
At the time, it was openly acknowledged that Republicans rejected the measure to fix our immigration system because Donald Trump wanted to be able to run for the presidency on the issue. Senator Mitt Romney said, “…the fact that he [Trump] would communicate to Republican senators and Congress people that he doesn’t want us to solve the border problem—because he wants to blame Biden for it—is really appalling.” North Carolina Senator Thom Tillis commented, “It is immoral for me to think you looked the other way because you think this is the linchpin for President Trump to win.”
That’s why we are here. Political complicity and political failure. It’s time for Americans to open their eyes and see the truth. Donald Trump, it turns out, may have created that opportunity.
There was a final, telling exchange at the Iowa town hall:
“Are you proud of voting for Trump, what he’s doing in office? Are you proud of everything he’s doing right here?” one asked.
“There’s no president I agree with 100 percent,” Grassley replied.
“I didn’t say that—I said are you proud he’s in,” the constituent replied. Grassley moved to another part of the room to answer a different question.
The good people of Iowa are asking questions we all want answered.
We’re in this together,
Joyce
P.S. Your subscriptions to Civil Discourse help make sure I have the time and resources necessary for this sort of in-depth analysis, like access to the federal government’s pay-to-see courts website. Thanks for being here, for reading, for caring about the future of our democracy, and for making the newsletter possible.
Apparently the U.S. Government’s (unstated) position is, Hey it’s a Latino—who cares? Come back when you’ve got something important … like anti-Christian bias.
When government "lawyers" deliberately spurn "good faith" and "presumption of regularity", these presentations purposefully wrong-foot the courts, and throw the entire machinery of judicial hearings askew. So, now we have a few more weeks tacked onto an already shameful bit of foot-dragging, and one seriously wonders that after a month of incarceration in CECOT, what really is the status of Mr Abrego Garcià's wellbeing.
Will Sen. Van Hollen's fact-finding mission gain any insight to any of the above? Will he indeed be allowed "access" to Abrego Garcià, or simply be turned away by a barrage of bureaucratic snow-jobbing? One truly must fear for Abrego Garcià's life, at this point.