The Department of Justice's response to a request by the attorneys representing El Salvadoran national Kilmar Armando Abrego Garcia for a "show cause" holding the government in contempt didn't go exactly according to the script the plaintiffs had in mind. It served notice on Obama-appointed federal judge Paula Xinis that she was mistaken if she thought the Department of Justice or the White House were shaking in their boots. It is the philosophical follow-up to the last response the DOJ sent to the judge; see Trump Admin Respectfully Tells Judge Xinis to Pound Sand in Abrego Garcia Case – RedState.

This case started when Abrego Garcia was picked up by Immigration and Customs Enforcement agents in suburban Maryland and given a free plane trip to an anti-terrorism prison in El Salvador. What would have been an unremarkable deportation of an illegal immigrant with alleged gang ties and an active removal order became more complicated when it was discovered that the removal order said he couldn't be removed to El Salvador because the bad blood between his gang, MS-13, and another gang might make him a target. Since then, the administration has been locked in a battle of will with a federal judge who seems hellbent on bringing an illegal immigrant back to the US so she can demonstrate her power.

The government summarizes the demands made by the plaintiffs this way: "In response, Plaintiffs moved for three categories of relief: (1) an order superintending and micromanaging Defendants’ foreign relations with the independent, sovereign nation of El Salvador, (2) an order allowing expedited discovery and converting Tuesday’s hearing into an evidentiary hearing, and (3) an order to show cause for why Defendants should not be held in contempt. 

READ THE BRIEF

DOJ Response to Show Cause Request by streiff at redstate on Scribd

Points 1) and 2) are directed at the language of the Supreme Court order (New: Supreme Court Issues Order on the Removal of Salvadoran National Kilmar Abrego Garcia – RedState) that sent the case back to Judge Xinis with some very explicit guidance...though, as we've seen, not nearly explicit enough; see The Latest: District Court Amends Order Directing Trump Admin to 'Facilitate' Abrego Garcia's Return – RedState. 

"The relief sought by Plaintiffs is inconsistent with the Supreme Court’s instruction requiring this Court to respect the President’s Article II authority to manage foreign policy," says the DOJ brief, "The Court should therefore reject Plaintiffs’ request for further intrusive supervision of the Executive’s facilitation process beyond the daily status reports already ordered."  They also note, "Defendants object to the requirement of daily status reports and reserve the right to challenge that requirement further." So, we can expect another fight to erupt over the frequency of case updates to make its way to the Fourth Circuit. 

To make the point crystal clear to Judge Xinis, the brief goes on to say, "The Supreme Court explained that on remand, any new order must “clarify” the “scope of the term ‘effectuate,’” in a manner that did not “exceed the District Court’s authority.”  The Court instructed that any “directive” must give “due regard for the deference owed to the Executive Branch in the conduct of foreign affairs.”  And it made clear that any “directive” should concern “Abrego Garcia’s release from custody in El Salvador” and “ensure that his case is handled as it would have been had he not been improperly sent to El Salvador.” 

This is critical because Judge Xinis and the Abrego Garcia's legal team have framed "facilitate" as "bring back to the US." The clear reading of the SCOTUS order is that it was referring to getting him out of prison. The DOJ brief makes it very clear that the administration does not consider "facilitate" to have anything to do with bringing an illegal alien and alleged gang member back to the US: "Defendants understand “facilitate” to mean what that term has long meant in the immigration context, namely actions allowing an alien to enter the United States. Taking “all available steps to facilitate” the return of Abrego Garcia is thus best read as taking all available steps to remove any domestic obstacles that would otherwise impede the alien’s ability to return here. Indeed, no other reading of 'facilitate is tenable—or constitutional—here." Boom! as the kids on X say.

To make the matter more emphatic, the brief tells the judge that she is mucking about in areas where the Constitution tells her she cannot tread. "They [the plaintiffs] ask this Court to order Defendants to (i) make demands of the El Salvadoran government (A1), (ii) dispatch personnel onto the soil of an independent, sovereign nation (A2), and (iii) send an aircraft into the airspace of a sovereign foreign nation to extract a citizen of that nation from its custody (A3). All of those requested orders involve interactions with a foreign sovereign—and potential violations of that sovereignty. But as explained, a federal court cannot compel the Executive Branch to engage in any mandated act of diplomacy or incursion upon the sovereignty of another nation." All of this is true. Abrego Garcia is a Salvadoran citizen in the custody of the Salvadoran government. The US government has no authority to demand his release, even if it wants to do so. 

Signaling patience has run out on this case, the government said it will continue to provide updates so long as it amuses them but it will not take diplomatic action based on a court's directives: "Any further intrusion into this sensitive process—and any directive from the Court to take action against the nation of El Salvador—would be inconsistent with the care counseled by the Supreme Court."

They also explain why ordering the "discovery" requested by the plaintiffs will be more difficult than anticipated. Questions about the negotiations would "interfere with ongoing diplomatic discussions—particularly in the context of President Bukele’s ongoing trip to the United States." Also, the White House will probably invoke attorney-client and State Secrets privileges to contest providing more information about what is happening in the administration.

This was accompanied by a status update provided by Mr. Evan Katz, Assistant Director for the Removal Division, within the Department of Homeland Security, U.S. Immigration and Customs Enforcement (ICE) Enforcement and Removal Operations (ERO). 

READ THE STATUS REPORT

Katz Status Report by streiff at redstate on Scribd

In his update, he lays out the history of Abrego Garcia's case, and while acknowledging Abrego Garcia "should not have been removed to El Salvador," Katz throws a couple of live rhetorical grenades into the room. First, he says, contrary to leftist propaganda, that the immigration judge who ordered, and then stayed, Abrego Garcia's removal in 2019 found the evidence of his MS-13 connection “trustworthy” and “supported by other evidence,” and that Abrego Garcia “failed to present evidence to rebut that assertion.” As far as Katz is concerned, Abrego Garcia "is no longer eligible for withholding of removal because of his membership in MS-13 which is now a designated foreign terrorist organization."

This means Abrego Garcia has received all the due process he is likely to get, and the administration has fulfilled the charge given it by the Supreme Court to "ensure that his case is handled as it would have been had he not been improperly sent to El Salvador.”

And, by the way, "It is my understanding that Defendants have no updates for the Court beyond what was provided yesterday."

RedState is your leading source for news and views on administration, politics, culture, and conservatism. If you like our reporting and commentary, please become a member and support our efforts. Use promo code FIGHT to get 60% off your membership.