A Maryland federal judge wants to find out if government officials are acting in "bad faith" in the case of Kilmar Armando Abrego Garcia, who was mistakenly sent to a notorious Salvadoran prison.
Judge Paula Xinis on Tuesday called for a two-week process of "expedited discovery," including questioning government officials under oath, to learn whether the government is doing enough to try to bring him back.
Abrego Garcia, a Salvadoran citizen, had lived in Maryland for about 15 years before he was deported to El Salvador last month, despite being granted protections by an U.S. immigration judge. He is in custody in Salvadoran President Nayib Bukele's mega-prison, known as CECOT. The Supreme Court said the Trump administration should facilitate his return.
"It is a fact now, of this record: every day he is detained in CECOT is a day of irreparable harm," Xinis said from the bench on Tuesday. "We have to give process to both sides but we are going to move. No tolerance for gamesmanship and grandstanding."
Lawyers for the Justice Department and those representing Abrego Garcia have one week to conduct depositions of Joseph Mazzara, the acting general counsel at the Department of Homeland Security, as well as of acting Immigration and Customs Enforcement field office director Robert Cerna, and of other officials who have filed declarations before the court.
The hearing is the first courtroom appearance about Abrego Garcia's case since Bukele met with President Trump in the Oval Office on Monday, and told reporters that he is not going to "smuggle a terrorist into the United States."
The U.S. government has accused Abrego Garcia of being a member of the MS-13 gang, which the Trump administration has since designated a Foreign Terrorist Organization. Abrego Garcia's lawyers dispute that he is a member of the gang, and say he doesn't have a criminal record.
In a court filing ahead of the hearing, Abrego Garcia's lawyers argued "the Government should at least be required to request the release of Abrego Garcia" — and that to date it has not done so.
The Department of Homeland Security said it "prepared to facilitate Abrego Garcia's presence in the United States in accordance with those processes if he presents at a port of entry," Mazzara said in a declaration filed minutes before the hearing began.
However, Mazarra said that if Abrego Garcia does appear at a port of entry to the U.S., he would be detained by DHS and either removed to a third country, or the government would go through a judicial process to try to send him back to El Salvador.
Oval Office meeting as evidence
The DOJ also filed a transcript of Monday's press conference in the Oval Office. Drew Ensign, a lawyer for the Justice Department, presented the transcript, arguing that the issue of Abrego Garcia was "raised at the highest level" and provided proof the government was trying to "facilitate" his return.
But Judge Xinis called references to the comments made at the White House "nonresponsive" in court about whether the administration is working to release Abrego Garcia from CECOT and ensure that his case is handled as it would have been in the U.S., were he not improperly sent abroad.
"If you were removing domestic barriers then there would be no smuggling, right?" Xinis said, referencing Bukele's "smuggling terrorists" remark.
"If I make a finding of contempt it will be based on the record before me," she added. "No, I don't consider the transcript you gave me to be answering the question."
The White House has argued its actions align with the court's orders.
"We're very confident that every action taken by this administration is within the confines of the law, and we continue to comply with the court's orders," White House Press Secretary Karoline Leavitt said on Tuesday.
El Salvador's Bukele says he lacks power to bring him back
The U.S. Supreme Court last week in an unsigned decision upheld Xinis' order that the federal government must "facilitate" Abrego Garcia's release from custody in El Salvador and "to ensure his case is handled as it would have been had he not been improperly sent to El Salvador."
However, the Supreme Court also said the judge should clarify her decision "with due regard for the deference owed to the Executive Branch in the conduct of foreign affairs."
Focusing on that line of "deference" over foreign policy, several administration officials have argued it's up to Bukele whether Abrego Garcia is returned.
"If they [El Salvador] wanted to return him, we would facilitate it – meaning provide a plane," Attorney General Pam Bondi said during the Oval Office press conference.
But in that same press conference, Bukele said he does not have the power to send Abrego Garcia back to the U.S.
Immigration and Customs Enforcement, as well as White House officials, admitted that an administrative error resulted in Abrego Garcia's deportation.
An immigration judge granted Abrego Garcia a withholding of removal in 2019, meaning that although he did enter the country illegally, the U.S. could not deport him to El Salvador.
His attorney told NPR he had applied and had been granted a work permit, which had been regularly renewed since then.
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