The Trump administration is requesting a federal judge in Maryland to dismiss a lawsuit filed by the family of Kilmar Abrego Garcia, arguing that despite his alleged erroneous deportation to a Salvadoran work prison without due process, his current location in El Salvador means he is not legally under the custody of the U.S. government. Consequently, the administration contends that the court lacks the necessary jurisdiction to hear the case.
In a 13-page motion submitted on Tuesday to U.S. District Judge Paula Xinis, the Justice Department asserted that the court must dismiss the plaintiffs’ claims because the absence of subject matter jurisdiction renders Abrego Garcia’s alleged injury “not redressable by this court.”
The administration’s jurisdictional argument specifically targets Abrego Garcia’s initial habeas corpus claim, which challenges the legality of an individual’s detention and must be filed within the jurisdiction where the individual is being held.
The court filing states that the plaintiffs acknowledge Abrego Garcia “is being held in custody by the Government of El Salvador” and concede that the defendants lack the authority to produce him, even asking the court to order the defendants to “request that the Government of El Salvador release Plaintiff” into the defendants’ custody.
Despite allegations that “the Government of El Salvador is detaining Plaintiff Abrego Garcia at the direct request … and financial compensation of Defendants,” the plaintiffs do not claim that the United States can exert its authority over a foreign sovereign. Their request is limited to the court ordering the United States to “request” his release, which the government argues does not constitute “custody” under the relevant legal framework.
The government’s filing further claims that its jurisdictional stance does not contradict orders issued by the 4th U.S. Circuit Court of Appeals and the U.S. Supreme Court, both of which instructed the administration to “facilitate” Abrego Garcia’s return to the United States.
Notably, neither of these higher courts directly addressed the issue of jurisdiction. Judge Xinis is unlikely to grant the motion, as she previously rejected the same jurisdictional argument from the Trump administration last month, emphasizing that the government defendants “can and do return wrongfully removed migrants as a matter of course.”
In its motion to dismiss, the Trump administration does not fully address Abrego Garcia’s assertion that the alleged agreement between the U.S. government and El Salvador to house ICE detainees implies that the U.S. maintains “constructive custody” over individuals deported to Central America for detention at the administration’s behest.
Under the federal habeas statute, constructive custody extends to prisoners who are not in “actual, physical custody” if they are held by someone else “under or by color of the authority of the United States.” Examples of constructive custody include a petitioner on parole or an individual “imprisoned by a private party at the behest of the U.S. Government.”
The alleged agreement between the two nations is central to a separate case in Washington, D.C., where Chief U.S. District Judge James Boasberg has initiated the discovery process to determine if such an agreement exists, a development that could significantly impact the jurisdictional issue.
The government’s motion was filed shortly after Judge Xinis denied the administration’s request for a 30-day extension. In a brief order, the judge reviewed the case’s history and what she considers the government’s repeated disregard for her directives.
Despite President Trump stating earlier this month that he “could” simply call El Salvador to return Abrego Garcia, the DOJ said on Tuesday that the defendants “do not have the power to produce him.” Judge Xinis criticized the DOJ’s complaint about expending “significant resources” on expedited discovery, noting that these burdens were self-imposed due to their refusal to comply with court orders affirmed by higher courts. She also pointed out that the DOJ had never indicated a need for more time until the filing deadline.
Judge Xinis has previously reprimanded the administration for ignoring court orders to provide information on Abrego Garcia’s detention and return efforts, and for allegedly misrepresenting the Supreme Court’s April order. Abrego Garcia’s case has attracted international attention, becoming a prominent lawsuit amid numerous legal challenges against President Trump and his administration since he assumed office in January.
The government has conceded that his removal to El Salvador was an “administrative error” but has maintained that he is a member of MS-13 and refused to cooperate with court orders for his return. Notably, the government has provided limited evidence of his alleged gang membership; he has no criminal record in the U.S. or El Salvador and has submitted sworn statements claiming he fled El Salvador due to gang violence.
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