Judge To DOJ: No, ‘Facilitate’ Doesn’t Mean ‘Do Nothing’ In Abrego Garcia Case

Legal Issues

from the something's-gotta-change dept

As the US government trotted out its latest excuses for illegally trafficking Abrego Garcia to a Salvadoran torture camp, the district court overseeing the case has made it clear that she’s had enough of the government defying her orders. In ȧ hearing followed by an order granting discovery, Judge Paula Xinis has made it clear that she knows the government is defying her orders to help bring Abrego Garcia back to the US, and she’s pretty fed up with their tap dancing and stalling.

At issue is the government’s creative interpretation of what it means to “facilitate” Garcia’s return — an interpretation that seems to consist entirely of doing absolutely nothing while claiming their hands are tied. As Judge Xinis points out, contrary to what the administration has been claiming about the Supreme Court siding with them, it did not. She’s simply enforcing what SCOTUS already said was her right to do:

This Court, in turn, ordered no more than what the Supreme Court endorsed: that Defendants “take all available steps to facilitate the return of Abrego Garcia to the United States as soon as possible,” because bound within this remedy is Abrego Garcia’s “release from custody” and the assurance that Abrego Garcia’s “case is handled as it would have been had he not been improperly sent to El Salvador.”

While the Trump admin, led by Pam Bondi and Stephen Miller, keeps falsely claiming that “facilitate” only means providing him with a flight to the US if El Salvador wants to release Garcia, Judge Xinis systematically dismantles this bullshit interpretation:

Notably, to “facilitate” means “to make the occurrence of (something) easier; to render less difficult.” Facilitate, Black’s Law Dictionary (12th ed. 2024). Merriam-Webster defines the term as “to make easier or less difficult: to free from difficulty or impediment.” Facilitate, MerriamWebster Dictionary, https://www.merriam-webster.com/dictionary/facilitate (last visited Apr. 14, 2025). And the Oxford English Dictionary defines “facilitate” as “[t]o assist (a person); to enable or allow (a person) to do something, achieve a particular result, etc., more easily.” Facilitate, Oxford English Dictionary, https://doi.org/10.1093/OED/5808503853 (last visited Apr. 14, 2025). Defendants therefore remain obligated, at a minimum, to take the steps available to them toward aiding, assisting, or making easier Abrego Garcia’s release from custody in El Salvador and resuming his status quo ante. But the record reflects that Defendants have done nothing at all.

Instead, the Defendants obliquely suggest that “facilitate” is limited to “taking all available steps to remove any domestic obstacles that would otherwise impede the alien’s ability to return here.” ECF No. 65 at 3 (emphasis in original). The fallacy in the Defendants’ argument is twofold. First, in the “immigration context” as it were, id., facilitating return of those wrongly deported can and has included more extensive governmental efforts, endorsed in prior precedent and DHS publications. Thus, the Court cannot credit that “facilitating” the ordered relief is as limited as Defendants suggest.

Second, and more fundamentally, Defendants appear to have done nothing to aid in Abrego Garcia’s release from custody and return to the United States to “ensure that his case is handled as it would have been” but for Defendants’ wrongful expulsion of him. Abrego Garcia, 604 U.S.— , slip op. at 2. Thus, Defendants’ attempt to skirt this issue by redefining “facilitate” runs contrary to law and logic.

She also notes that the three “daily” status reports the DOJ delivered (late each day) did not meet what she ordered, which is why she is requiring discovery, even as the DOJ insisted she should not order discovery:

Third, the discovery is necessary in light of Defendants’ uniform refusal to disclose “what it can” regarding their facilitation of Abrego Garcia’s release and return to the status quo ante, or present any legal justification for what they cannot disclose.2 Id. Fourth, the burden on the Government is minimal, particularly because, as the Supreme Court underscored, it “should be prepared to share what it can concerning the steps it has taken and the prospect of further steps.” Id. Fifth, the request for discovery is timely in that Defendants have not yet complied with this Court’s directives, and Abrego Garcia appears to remain inexplicably detained in CECOT. Sixth, discovery must proceed without delay, as Abrego Garcia is indisputably entitled to the due protections that Defendants have denied him—and to be free from the risk of grave injury resulting from his continued detention in CECOT.

As for Stephen Miller’s argument that the Supreme Court sided with the White House and all they have to do is yell “foreign affairs” to get out from under any court judgment, the court’s having none of it:

Again, this Court is ever mindful of the Supreme Court’s directive that the Court’s injunctive relief must be accorded with “due regard for the deference owed to the Executive Branch in the conduct of foreign affairs.” Abrego Garcia, 604 U.S.—, slip op. at 2. But this deference does not mean the Court must ignore the Defendants’ repeated refusal to provide even the most basic information as to any steps they have taken 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.” Id. Thus far, the Defendants appear to have taken no steps, and provided no explanation, legal or otherwise, for such inaction

And thus, Judge Xinis has set a very aggressive discovery schedule. The lawyers for Abrego Garcia can depose the various administration officials who filed those status reports, including various ICE officials and a State Department official. But also Joseph Mazzara, the acting general counsel for Homeland Security.

During the hearing, DOJ lawyer Drew Ensign tried to protest that Mazzara, as acting general counsel, shouldn’t be deposed as it would raise privilege issues, but Judge Xinis shut that down, noting the DOJ should have considered that before they had him sign declarations in the case.

The depositions should all be completed by next Wednesday, followed by Garcia’s lawyers being able to supplement their motion for relief based on those depositions by Monday, April 28th, and the DOJ able to respond by April 30.

Some observers were annoyed that this represents two more weeks in which Garcia is left rotting in a Salvadoran torture camp, but Xinis appears to know what she’s doing. As some note, two weeks is the minimum required to hold a party in contempt for failure to comply. Others suggest that this aggressive discovery schedule, in which various government officials will have to go on the record explaining how badly they fucked all this up may be designed to just get the DOJ to get Garcia on a plane back to the US to avoid this process.

Of course, others are predicting that the Trump admin will seek to run back to the warm embrace of John Roberts at SCOTUS, seeking to get Judge Xinis off their back (though as Judge Xinis noted, there’s really no basis for that). But also, it gives Roberts the opportunity to point out how the administration is directly lying about what SCOTUS’s original 9-0 ruling said about how the US should help bring Garcia back.

Obviously, this process is tragically slow for Garcia and his family. Garcia’s wife gave an impassioned and heartfelt statement prior to the hearing which is worth watching:

This is the family that the Trump admin is destroying because they’ve spent years rotting their own brains with exaggerated nonsense about “violent gangs” from undocumented people who are mostly just seeking a chance to achieve the American dream.

The irony here is striking: the administration that claims to care about law and order is actively defying both the Supreme Court and a federal district court judge, all to avoid admitting they wrongly imprisoned an innocent man. But Judge Xinis’s order may finally be a step towards holding them accountable.

Hopefully, the Trump admin comes to their senses (big ask, I know) and does what Donald Trump himself said they should do last Friday: call up El Salvador and tell them to release Abrego Garcia back to the US where he belongs and where his case should have been handled appropriately, with the required due process.

Filed Under: abrego garcia, depositions, discovery, due process, el salvador, joseph mazzara, kristi noem, paula xinis, stephen miller