WASHINGTON — The Trump administration has been told by a federal appeals court that their assertion of being unable to assist in the release of Kilmar Abrego Garcia from an El Salvador prison and bring him back to the U.S. is concerning. The court criticized this stance, stating it “should be shocking.”
A three-judge panel from the 4th U.S. Circuit Court of Appeals has unanimously rejected a request to halt a judge’s ruling that demanded sworn statements from Trump administration officials to verify their compliance with facilitating Abrego Garcia’s return.
Judge J. Harvie Wilkinson III, appointed by Republican President Ronald Reagan, expressed hope alongside his fellow judges that it’s not overly idealistic to believe that the Executive Branch respects the importance of upholding the rule of law in American society.
“This case presents their unique chance to vindicate that value and to summon the best that is within us while there is still time,” Wilkinson wrote.
The panel said Republican President Donald Trump’s government is “asserting a right to stash away residents of this country in foreign prisons without the semblance of due process that is the foundation of our constitutional order.”
“Further, it claims in essence that because it has rid itself of custody that there is nothing that can be done. This should be shocking not only to judges, but to the intuitive sense of liberty that Americans far removed from courthouses still hold dear,” Wilkinson wrote.
Earlier this month, the Supreme Court said the Trump administration must work to bring back Abrego Garcia. An earlier order by U.S. District Judge Paula Xinis “properly requires the Government to ‘facilitate’ Abrego Garcia’s release from custody in El Salvador and to ensure that his case is handled as it would have been had he not been improperly sent to El Salvador,” the high court said in an unsigned order with no noted dissents.
The Justice Department appealed after Xinis on Tuesday ordered sworn testimony by at least four officials who work for U.S. Immigration and Customs Enforcement, the Department of Homeland Security and the State Department.
The 4th Circuit panel unanimously denied the government’s request for a stay of Xinis’ order while they appeal. Its opinion says the executive and judicial branches of the federal government “come too close to grinding irrevocably against one another in a conflict that promises to diminish both.”
“This is a losing proposition all around,” they wrote. “The Judiciary will lose much from the constant intimations of its illegitimacy, to which by dent of custom and detachment we can only sparingly reply. The Executive will lose much from a public perception of its lawlessness and all of its attendant contagions.”
Wilkinson, the opinion’s author, was regarded as a contender for the Supreme Court seat that was ultimately filled by Chief Justice John Roberts in 2005. Wilkinson’s conservative pedigree may complicate White House efforts to credibly assail him as a left-leaning jurist bent on thwarting the Trump administration’s agenda for political purposes, a fallback line of attack when judicial decisions run counter to the president’s wishes.
Joining Wilkinson in the ruling were judges Stephanie Thacker, who was nominated by Democratic President Barack Obama, and Robert Bruce King, who was nominated by Democratic President Bill Clinton.
White House officials claim they lack the authority to bring back the Salvadoran national from his native country. Salvadoran President Nayib Bukele also said Monday that he would not return Abrego Garcia, likening it to smuggling “a terrorist into the United States.”
While initially acknowledging Abrego Garcia was mistakenly deported, the administration has dug in its heels in recent days, describing him as a “terrorist” even though he was never criminally charged in the U.S.
Attorney General Pam Bondi said Wednesday that “he is not coming back to our country.”
Administration officials have conceded that Abrego Garcia shouldn’t have been sent to El Salvador, but they have insisted that he was a member of the MS-13 gang. Abrego Garcia’s lawyers say there is no evidence linking him to MS-13 or any other gang.
The appeals court panel concluded that Abrego Garcia deserves due process, even if the government can connect him to a gang.
“If the government is confident of its position, it should be assured that position will prevail in proceedings to terminate the withholding of removal order,” the opinion says.
Xinis also was skeptical of assertions by White House officials and Bukele that they were unable to bring back Abrego Garcia. She described their statements as “two very misguided ships passing in the night.”
“The Supreme Court has spoken,” Xinis said Tuesday.
Maryland Sen. Chris Van Hollen says he was denied entry into an El Savador prison on Thursday while he was trying to check on the well-being of Abrego Garcia.
Van Hollen is in El Salvador to push for Abrego Garcia’s release. The Democratic senator said at a news conference in San Salvador that his car was stopped by soldiers at a checkpoint about 3 kilometers from the Terrorism Confinement Center, or CECOT, even as they let other cars go on.
“They stopped us because they are under orders not to allow us to proceed,” Van Hollen said.
Van Hollen’s trip has become a partisan flashpoint in the U.S. as Democrats have siezed on Abrego Garcia’s deportation as what they say is a cruel consequence of Trump’s disregard for the courts. Republicans have criticized Democrats for defending him and argued that his deportation is part of a larger effort to reduce crime. White House press secretary Karoline Leavitt held a news conference on Wednesday with the mother of a Maryland woman who was killed by a fugitive from El Salvador in 2023.
The Maryland senator told reporters Wednesday that he met with Salvadoran Vice President Félix Ulloa who said his government could not return Abrego Garcia to the United States.
“So today, I tried again to make contact with Mr. Abrego Garcia by driving to the CECOT prison,” Van Hollen said, and was stopped.
Van Hollen said Abrego Garcia has not had any contact with his family or his lawyers. “There has been no ability to find out anything about his health and well being,” Van Hollen said. He said Abrego Garcia should be able to have contact with his lawyers under international law.
“We won’t give up until Kilmar has his due process rights respected,” Van Hollen said. He said there would be “many more” lawmakers coming to El Salvador.
New Jersey Sen. Cory Booker, D-N.J., is also considering a trip to El Salvador, as are some House Democrats.
While Van Hollen was denied entry, several House Republicans have visited the notorious gang prison in support of the Trump administration’s efforts. Rep. Riley Moore, a West Virginia Republican, posted Tuesday evening that he’d visited the prison where Abrego Garcia is being held. He did not mention Abrego Garcia but said the facility “houses the country’s most brutal criminals.”
“I leave now even more determined to support President Trump’s efforts to secure our homeland,” Moore wrote on social media.
Missouri Republican Rep. Jason Smith, chair of the House Ways and Means Committee, also visited the prison. He posted on X that “thanks to President Trump” the facility “now includes illegal immigrants who broke into our country and committed violent acts against Americans.”
Yolanda Magaña and Mary Clare Jalonick contributed to this report.
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