GREENBELT, Md.—U.S. District Judge Paula Xinis on April 15 ordered two weeks of expedited discovery, including depositions of government officials and document requests, to determine whether the Trump administration acted to comply with her order to facilitate the return of Kilmar Abrego Garcia, an illegal immigrant who was mistakenly deported to El Salvador last month.
Xinis issued her order after a hearing in Maryland, where protesters could be seen with signs criticizing the administration and supporting Abrego Garcia outside the courthouse in Greenbelt.
During the somewhat tense hearing, Xinis went back and forth with Department of Justice (DOJ) attorney Drew Ensign on the best way to proceed with the case. Ensign told Xinis that discovery was unnecessary and that she should instead focus on the question of what the word facilitate meant in the law and what that meant for the administration’s compliance with her order.
Echoing Attorney General Pam Bondi’s comments in the Oval Office this week, Ensign said that “facilitate” in the immigration context meant removing domestic barriers to Abrego Garcia’s return.
Xinis told Ensign that his interpretation of the word flew in the face of its plain meaning. On April 9, the Supreme Court issued an order stating Xinis was right to require the facilitation of Abrego Garcia’s return and “to ensure that his case is handled as it would have been had he not been improperly sent to El Salvador.”
Xinis quoted that portion of the opinion when talking with Ensign. When Ensign asked her to allow a stay of her decision pending appeal, Xinis said there was “nothing in my view to appeal” and that the Supreme Court had “spoken.” In her written order, she said that “facilitating return of those wrongly deported can and has included more extensive governmental efforts.”
The administration has said Abrego Garcia was removed due to an administrative error.
In her written order, Xinis said Abrego Garcia seemed to be “inexplicably detained in CECOT,” which is a high-security Salvadoran prison where violent gang members are held. She has been seeking information on what actions the government took and would take in response to her prior order.
Xinis refrained from directing any particular action by the federal government and wanted to proceed with discovery to determine whether the government had complied with her order directing some kind of facilitation.
She also indicated she was considering contempt for the administration and that she wanted more information on whether it was acting in bad faith in response to her order.
The hearing came after an Oval Office meeting in which Salvadoran President Nayib Bukele said he wouldn’t return Abrego Garcia to the United States.
Abrego Garcia’s legal team filed a motion on April 12 with multiple requests, including expedited discovery and a request that the court order specific actions to facilitate their client’s return, the latter of which Xinis refrained from ruling on in her written order. More specifically, his legal team sought the court to order the government to provide air transportation for Abrego Garcia, as well as parole, and that the government request its agents and contractors release Abrego Garcia from custody in El Salvador.
Just prior to the April 15 hearing, the Trump administration filed a declaration from the acting general counsel for the Department of Homeland Security, Joseph Mazzara, which told the court that “DHS does not have authority to forcibly extract an alien from domestic custody of a foreign sovereign nation.”
Mazzara, who was present at the courthouse, also said that because MS-13 is considered a foreign terrorist organization, Abrego Garcia is no longer eligible for withholding from removal. In 2019, an immigration judge granted withholding from removal to El Salvador.
Besides Mazzara, three other officials—ICE Acting Field Office Director of Enforcement and Removal Operations Robert Cerna, State Department official Michael Kozak, and another ICE official, Evan Katz—were listed in Xinis’s order as individuals that the plaintiffs may depose by April 23. Her order also provided for two additional depositions.
During the hearing, Xinis told Ensign that there would be “no tolerance” for “gamesmanship or grandstanding” in the process of discovery and that there were no business hours in the case—meaning that she was willing to work on the weekend and outside of normal hours. She said that the record before the court didn’t show evidence that the administration complied with her order.
“I’ve gotten very little information of any value,” she said.
Ensign pointed to Salvadoran President Nayib Bukele’s comments in the Oval Office, but Xinis said that what happened there was not before the court.
The case has become yet another flashpoint in the administration’s ongoing struggles with the judiciary—including over the proper separation of powers between the second and third branches of government. Abrego Garcia was removed last month as part of a group of flights that departed on the day of a hearing over Trump’s use of the Alien Enemies Act to deport members of the Venezuelan Tren de Aragua gang.
Like Xinis’s case, that case similarly saw the executive suggesting the judiciary was encroaching on its authority. U.S. District Judge James Boasberg’s orders blocking the administration were ultimately vacated by the Supreme Court, but he too considered contempt for potential noncompliance by the administration.
On April 10, the administration asserted its ability to conduct foreign affairs and suggested Xinis was being unreasonable in her demands for information about Abrego Garcia and their steps to comply with her order.
“It is unreasonable and impracticable for Defendants to reveal potential steps before those steps are reviewed, agreed upon, and vetted,” DOJ said in a filing. “Foreign affairs cannot operate on judicial timelines, in part because it involves sensitive country-specific considerations wholly inappropriate for judicial review.”
