The Trump administration asked a federal court late Tuesday to dismiss a lawsuit filed by Kilmar Abrego Garcia, a Salvadoran national and suspected MS-13 gang member deported earlier this year under disputed circumstances, arguing the court has no jurisdiction to force his return to the United States.
Abrego Garcia and his family sued after he was removed from the U.S. despite a prior immigration court order granting him withholding of removal to El Salvador due to what Abrego Garcia claimed were gang-related threats to his safety in his home country. He is now detained there anyway and is seeking emergency relief to be brought back to the U.S.
But Justice Department attorneys said Tuesday the case cannot proceed because Abrego Garcia “is not in United States custody, [so] his injury is not redressable by this Court.” The DOJ also argued that the Immigration and Nationality Act bars judicial review in this context.
“All Plaintiffs’ claims challenge Abrego Garcia’s confinement in El Salvador,” the motion, joined by the Department of Homeland Security, said. “Plaintiffs admit that Abrego Garcia ‘is being held in custody by the Government of El Salvador.’ Therefore, this Court lacks jurisdiction to hear Plaintiffs’ claims and should dismiss them.”
Abrego Garcia has not been convicted of a crime but was previously denied bond based on confidential information that he was affiliated with MS-13, a violent gang designated as a terrorist group by the Trump administration. His removal occurred in March following an encounter with Immigration and Customs Enforcement in Maryland, which his lawyers call unlawful and retaliatory.
In court filings, the DOJ recounted that Abrego Garcia “violated United States law in 2011 by entering the country without inspection” and noted that he was charged in 2019 as inadmissible under federal immigration law. ICE officials later told a judge he posed a public safety risk based on a gang field interview sheet produced by Maryland police, and an immigration judge agreed.
DOJ attorneys wrote that the outcome Abrego Garcia’s attorneys are asking for, his return to the U.S., depends on the “choices of [an] independent actor,” the government of El Salvador, which the court has no authority over. “It is speculative that directing Defendants to facilitate Abrego Garcia’s return would redress Plaintiffs’ injury,” the attorneys argued.
The Supreme Court previously ruled that the Trump administration must “facilitate” Abrego Garcia’s return, but Salvadoran President Nayib Bukele has declined to release him from a detention center, President Donald Trump has said repeatedly. But at the same time, the justices rejected a lower court judge’s determination that the Salvadoran’s return should also be “effectuated” by the government, leading to courtroom disputes over the meaning of the high court’s ruling.
Judge Paula Xinis, who previously rebuked DOJ lawyers for failing to answer questions about the deportation, is expected to decide whether to grant the administration’s motion to dismiss. The Trump team says the ruling must reflect that “the irreducible constitutional minimum” of standing, or the ability of plaintiffs to bring the lawsuit in the first place, has not been met.
The administration also invoked 8 U.S.C. § 1252(g), which bars courts from reviewing executive branch actions related to removal orders, arguing that Abrego Garcia’s challenge “plainly arises from the government’s ‘decision or action’ to execute his removal order.”
“Defendants removed Abrego Garcia pursuant to a lawful removal order,” the motion stated. “Whether or not he had been served a warrant for removal does not change that fact.”
The case has drawn attention from Congress, where Democrats, including Sen. Chris Van Hollen and Rep. Glenn Ivey, both of Maryland, have demanded answers and attempted to visit Abrego Garcia in prison.
The Trump administration pushed back aggressively in a post on X. “Kilmar Abrego Garcia is a confirmed MS-13 gang member, wife beater, human trafficker, and illegal alien from El Salvador — not your constituent,” DHS wrote on X in response to Ivey’s video about her attempted visit. “@POTUS Trump and @Sec_Noem are fighting for the victims of alien crime and putting the safety of Americans FIRST.”
Van Hollen countered, “This isn’t just about Mr. Abrego Garcia — this is about defending the rights of ALL. Shameful.”
MARYLAND CONGRESSMAN SAYS HE WAS DENIED ACCESS TO CONSTITUENT KILMAR ABREGO GARCIA IN EL SALVADOR
Just before filing the request to dismiss the case on Tuesday, the Trump administration also sought to delay a May 30 deadline to hand over additional discovery files. Xinis quickly rebuffed that request, citing that there have already been at least “five hearings” and “at no point have defendants even intimated they needed more time to answer or otherwise respond.”
Xinis has not said when she will rule on the government’s motion.
