The Justice Department filed an application for an emergency stay of an order requiring an adjudicated MS-13 member be brought back the United States that stopped within inches of calling the district court judge who issued the order a moron. In a tersely worded brief that demolished the entire proceeding, the Justice Department's brief ridiculed the order by Obama-appointed Judge Paula Xinis to “facilitate and effectuate” Kilmar Abrego Garcia’s return to the US by Monday night, saying: "Because the United States has no control over Abrego Garcia, however, Defendants have no independent authority to “effectuate” his return to the United States—any more than they would have the power to follow a court order commanding them to “effectuate” the end of the war in Ukraine, or a return of the hostages from Gaza;" see Judge Orders Trump to Return Deported Man Sent to El Salvadoran Prison, Sets Up a Massive Showdown – RedState.

Garcia, a citizen of El Salvador, who is portrayed as a "Maryland father" in most news reports, entered the US illegally in 2011. In 2019, he was arrested on allegations of membership in the violent Salvadoran gang called Mara Salvatrucha, or MS-13. At that time, he applied for political asylum, which was denied. He was given an order of removal, but a judge put his deportation on hold on the grounds that he might be in danger if he returned to El Salvador. In early March, Garcia was arrested and put on a plane to El Salvador and the Terrorist Confinement Facility, CECOT. 

Last night, in a joint military operation with our allies from the United States, we transferred 17 extremely dangerous criminals linked to Tren de Aragua and MS-13.

All individuals are confirmed murderers and high-profile offenders, including six child rapists.

This operation… pic.twitter.com/Tk1Xq7vnuB

— Nayib Bukele (@nayibbukele) March 31, 2025

His attorneys sued, and a judge ordered the Trump administration to return Garcia to Maryland. In her order, the judge called the deportation “an illegal act.”

When White House spokeswoman Karoline Leavitt reacted by saying, “We suggest the Judge contact [El Salvador’s] President [Nayib] Bukele because we are unaware of the judge having jurisdiction or authority over the country of El Salvador,” it struck me, and many others, as the kind of remark you can make if you are in no danger of facing the judge in a courtroom. As it turned out, she perfectly captured the tone of the administration's request for a stay of her order.

High Points

The first response was that the judge's order is impossible to comply with.

The district court’s order—a command to “facilitate and effectuate” Abrego Garcia’s return from a foreign country by midnight on Monday—is unlawful.  There is no likelihood that it would survive review on appeal. 

...

The order below is neither possible nor proper. As noted, Abrego Garcia is an El Salvadoran national, being held in El Salvador, at the hands of the El Salvadoran government.

The conclusion is my favorite.

Because the United States has no control over Abrego Garcia, however, Defendants have no independent authority to “effectuate” his return to the United States—any more than they would have the power to follow a court order commanding them to “effectuate” the end of the war in Ukraine, or a return of the hostages from Gaza.

The government's argument is that Garcia had a final deportation order, so the district court judge erred in hearing the case because it was outside her jurisdiction.

Even putting aside these fundamental defects, the order below also runs into a statutory bar.  Section 1252(g) strips district courts of jurisdiction to review “any cause or claim by or on behalf of any alien arising from the decision or action by the Attorney General to … execute removal orders 11 against any alien” under the INA, except as otherwise provided in § 1252. 8 U.S.C. § 1252(g) (emphasis added).  This is such a suit.  The district court thus lacked jurisdiction over this case, and lacked authority to issue its order.

No one cares if Garcia had a previous order suspending his deportation, and his lawyers realize that even if the judge doesn't.

But as the Supreme Court has made clear, removal orders and withholding orders are “distinct.”   Johnson v. Guzman Chavez, 594 U.S. 523, 539 (2021).  And just as important, a withholding order does not “affect the validity of the underlying removal order.”  Id. at 540.  Accordingly, even if a removal runs afoul of some other legal bar (such as withholding relief), it is still the “execution” of a “removal order” under the very terms of § 1252(g).  The federal courts thus cannot act upon any “claim” challenging such an execution, “[e]xcept as provided” elsewhere § 1252—an exception not even Plaintiffs have argued applies here.

Garcia didn't ask to be returned to the United States; the order demanding such is illegal.

He did not claim an entitlement to be in the United States; nor did he raise any concerns with being sent to some third country.  In that light, ordering Abrego Garcia returned to the United States—and only the United States—was an invalid and untailored request.  And it further compounded the district court’s overreach.  As a matter of both sound immigration policy and responsible foreign policy, the United States regularly relies on being able to remove aliens to third countries, when there are issues with returning them to their place of origin.  The district court erred in interfering with that.

In theory, the government could honor Garcia's demand by sending him to Afghanistan, as he only objects to being held in El Salvador.

Already we can see that Judge Xinis was much more interested in burnishing her Resistance cred than dealing with a legal case.

There is no public interest served by bringing a member of a transnational terrorist group back to the United States.

Accordingly, while there is no doubt a “public interest in preventing aliens from being wrongfully removed,” Nken, 556 U.S. at 435, there is an overwhelming public interest in not importing members of violent transnational gangs into this country, see id. at 436 (noting a heightened “interest in prompt removal” if an “alien is particularly dangerous”).  

...

It is true that an immigration judge concluded six years ago that Abrego Garcia should not be returned to El Salvador, given his claims about threats from a different gang.  Final Removal Order 7–10.  That conclusion was dubious then (and increasingly so now).  But it has become totally untenable, given the Secretary of State’s designation of MS-13 as a Foreign Terrorist Organization in February.  90 Fed. Reg. at 10030–31. 

And finally, the Justice Department demolishes Garcia's claim that he will be subject to torture in El Salvador.

As for the latter, Plaintiffs have not come close to showing that Abrego Garcia will likely be tortured or killed in CECOT.  For starters, the Executive Branch has asserted that no such danger exists.  See generally 90 Fed. Reg. 14514 (Apr. 2 2025). That is virtually dispositive. See Kiyemba v. Obama, 561 F.3d 509, 515 (D.C. Cir. 2009) (“[S]eparation of powers principles . . . preclude the courts from second-guessing the Executive’s assessment of the likelihood a detainee will be tortured by a foreign sovereign.”). 

Indeed, the United States, as a party to the Convention Against Torture, is committed not to return a person to a country where that person is likely to be tortured. See 8 C.F.R. § 1208.18. And, as one of Plaintiffs’ declarants concedes: “El Salvador is a signatory to both the Convention Against Torture and the International Covenant on Civil and Political Rights.” Bishop Decl., ECF No. 10-3, ¶ 32. The United States has ensured that removed aliens will not be tortured, and Defendants would not have removed any alien to El Salvador for detention in CECOT if it believed that doing so would violate the United States’ obligations under the Convention.   And they did not do so here.

Final Word

The government's brief conclusively takes apart every aspect of Garcia's case. He had a deportation order; he had MS-13 connections that make him ineligible to enter the US; and the judge not only doesn't have the clout to make El Salvador send him back to the US, she isn't legally allowed to hear the case.

This case is headed to the Fourth Circuit, where we can hope they will give Judge Xinis's desire to possess magical powers short shrift.

READ THE STAY APPLICATION

Abrego Garcia vs. Noem by streiff on Scribd

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