The Trump administration is requesting a federal judge in Maryland to dismiss the lawsuit filed by the family of Kilmar Abrego Garcia. They argue that despite his wrongful removal to a notorious Salvadorean work prison and the lack of due process, since he is now in his home country, he is not under the legal custody of the U.S. government, thus making it outside the court’s jurisdiction to hear the case.
The Justice Department filed a 13-page motion with U.S. District Judge Paula Xinis, stating that the court must reject the plaintiffs’ claims due to the lack of subject matter jurisdiction. They argue that Abrego Garcia’s injuries cannot be addressed by this court.
This legal battle raises important questions about jurisdiction and governmental responsibility. The family of Kilmar Abrego Garcia seeks justice for the wrongful actions that led him to be in a Salvadorean work prison without due process.
The administration’s jurisdiction argument target’s Abrego Garcia’s threshold habeas claim, which is a challenge to the legality of an individual’s detainment — one that must be filed in the jurisdiction where the individual is being held.
From the filing (citations removed):
Plaintiffs admit that Abrego Garcia “is being held in custody by the Government of El Salvador.” And they acknowledge that Defendants do not have the power to produce him (asking the Court to order Defendants to “request that the Government of El Salvador release Plaintiff” to Defendants’ custody (emphasis added)). Despite their allegations that “the Government of El Salvador is detaining Plaintiff Abrego Garcia at the direct request … and financial compensation of Defendants,” Plaintiffs do not assert that the United States can exercise its will over a foreign sovereign. The most they ask for is that this Court order the United States to “request” his release. This is not “custody” to which the great writ may run.”
The government’s filing claims its position on jurisdiction does not run contra to orders issued by the 4th U.S. Circuit Court of Appeals and the U.S. Supreme Court, both of which ordered the administration to “facilitate” Abrego Garcia’s return to the country. Neither of the higher courts directly addressed the issue of jurisdiction.
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Xinis is unlikely to credit the motion, as last month she rejected the very same jurisdictional argument from the Trump administration, emphasizing that the government defendants “can and do return wrongfully removed migrants as a matter of course.”
In the motion to dismiss, the Trump administration glosses over the assertion from Abrego Garcia that the U.S. government’s alleged agreement with El Salvador to house ICE detainees means the U.S. maintains “constructive custody” over the individuals removed to Central America for detention by the administration.
Constructive custody, in the context of the federal habeas statute, extends to prisoners who are not in “actual, physical custody” because they are being held by someone else “under or by color of the authority of the United States.” Examples of constructive custody include a petitioner who is free on parole but still subject to parole restraints or where an individual is “imprisoned by a private party at the behest of the U.S. Government.”
The alleged agreement between the two nations is at the forefront of a different case in Washington, D.C., where Chief U.S. District Judge James Boasberg has initiated the discovery process with the expectation that it will reveal if such an agreement exists — a development that will likely have a significant impact on the jurisdictional issue.
The government’s motion came shortly after Xinis refused to grant the administration’s request for a 30-day extension on the filing. In a brief three-paragraph order, the judge briefly reviewed the contentious case history and what she views as the government’s repeated flouting of her directives.
Despite President Donald Trump earlier this month telling ABC News he “could” just pick up the phone and have El Salvador return Abrego Garcia, the DOJ on Tuesday said the Defendants “do not have the power to produce him.”
“[The Defendants] vaguely complain, in two sentences, to expending ‘significant resources’ engaging in expedited discovery,” she wrote. “But these self-described burdens are of their own making. The Court ordered expedited discovery because of Defendants’ refusal to follow the orders of this Court as affirmed by the United States Court of Appeals for the Fourth Circuit and the United States Supreme Court.”
She also noted that during the five court hearings in the case, the DOJ had never “even intimated” that they needed more time to file their response until the day of the filing deadline.
Xinis has previously upbraided the administration for ignoring court orders to produce information regarding Abrego Garcia’s detention and the steps being taken to facilitate his return and for allegedly “mischaracterizing” the Supreme Court’s April order.
Abrego Garcia’s case has garnered international attention, quickly becoming one of the most high-profile and combative lawsuits amid the blizzard of legal challenges filed against Trump and his administration since he retook office in January. The government has conceded in numerous filings that he removal to El Salvador was an “administrative error,” but has steadfastly insisted that he is a member of MS-13 and refused to cooperate with multiple court orders demanding he be brought back to the country.
Notably, the government has proffered little, if any, evidence that Abrego Garcia was a gang member. He has no criminal record in the U.S. or El Salvador and has submitted sworn statements that he was fleeing El Salvador due to gang violence.
