Attorneys for Kilmar Abrego Garcia have accused the Trump administration of continuing to pursue an alarming proposal in its effort to dismiss a lawsuit challenging his removal from the U.S. to a terrorist prison in El Salvador. The removal allegedly occurred without due process, despite Abrego Garcia being a protected resident.
In a 26-page response filed in Maryland federal court on Monday, Abrego Garcia’s legal team addressed the Justice Department’s recent motion to dismiss the case. The DOJ has repeatedly asserted that federal courts lack the jurisdiction to intervene in this matter.
The filing by Abrego Garcia’s attorneys states, “The Government asks this Court to accept a shocking proposition: that federal officers may snatch residents of this country and deposit them in foreign prisons in admitted violation of federal law, while no court in the United States has jurisdiction to do anything about it.” They emphasized that the District Court, the Fourth Circuit, and the Supreme Court have all previously rejected this jurisdictional argument, unanimously affirming a preliminary injunction that requires the government to facilitate Abrego Garcia’s return to the United States from El Salvador.
Abrego Garcia’s attorneys argue that the Trump administration remains “unfazed” by its repeated legal defeats in this case. They also suggested that the DOJ was unprepared for the U.S. District Judge Paula Xinis’s denial of their request for a 30-day extension on last week’s filing. After Judge Xinis instructed the DOJ to adhere to the original deadline, the government allegedly submitted a “nearly verbatim” reiteration of the same jurisdictional arguments that had already been rejected by multiple levels of the court system.
“The Government’s position that courts cannot order it to aid the return of U.S. residents it unlawfully removed to foreign cells was ‘eye-popping’ before,” the filing states. “Repetition does not make it less so. Jurisdiction is not a game of ‘best two out of three.’ Once decided, it stays decided unless the facts or the law change. Neither has.”
In its motion to dismiss, the Trump administration contended that Abrego Garcia’s case lacked subject matter jurisdiction and therefore “must” be dismissed. The administration acknowledged that his removal to El Salvador was due to an “administrative error” but argued that courts do not have the authority to address his injury. Their jurisdictional argument specifically targeted Abrego Garcia’s habeas claim, which challenges the legality of his confinement or removal. The DOJ argued that because Abrego Garcia is in El Salvadorian custody, the U.S. government cannot exert its authority over a foreign sovereign.
Abrego Garcia’s legal team countered by asserting that he “remains in U.S. custody,” at least constructively, because his detention in El Salvador is at the behest of the U.S. government. They cited the concept of constructive custody, which extends to individuals held by others under the authority of the United States, even if not in direct physical custody. Examples include those on parole or individuals imprisoned by a private party at the request of the U.S. government.
Judge Xinis, an Obama appointee, is considered unlikely to grant the motion to dismiss, as she previously rejected the same jurisdictional argument from the Trump administration, stating that it “fails as a matter of law” and pointing out that the government regularly returns wrongfully removed migrants. The judge has also previously reprimanded the administration for disregarding court orders related to information about Abrego Garcia’s detention and return efforts, and for allegedly misrepresenting a Supreme Court order.
Abrego Garcia’s case has attracted international attention due to the unusual circumstances of his removal. While the government has conceded the removal was an “administrative error,” it has consistently maintained, with little evidence, that he is a member of MS-13 and has resisted court orders demanding his return. Abrego Garcia has no criminal record in the U.S. or El Salvador and has stated under oath that he fled El Salvador due to gang violence.
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