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How a deportation case is turning into a tussle over presidential authority

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Kevin Lamarque/Reuters
U.S. President Donald Trump meets with Salvadoran President Nayib Bukele in the Oval Office at the White House in Washington, April 14, 2025.

Americans are waiting to see whether their country will correct what the Justice Department has called a mistake 鈥 a deportation that the Supreme Court has also called illegal. Prospects dimmed Monday as the United States and El Salvador, whose president visited the White House, signaled they wouldn鈥檛 work to correct the error and bring Kilmar Abrego Garcia, who is now behind bars in an Salvadoran prison, back to the U.S.

The deportation case of Mr. Abrego Garcia was originally focused on correcting what Department of Justice lawyers conceded was a removal due to an 鈥渁dministrative error.鈥 But it is moving toward a showdown over the extent to which the U.S. president can refuse to comply with judicial orders in the name of foreign policy, as both President Donald Trump鈥檚 government and Salvadoran President Nayib Bukele said Monday that they can't be forced to send Mr. Abrego Garcia back to the U.S.聽

The U.S. government deported Mr. Abrego Garcia, a Salvadoran living in Maryland, back to El Salvador last month. Mr. Abrego Garcia, who the U.S. alleges is a member of the MS-13 gang, had previously received legal protection against deportation to El Salvador, where he鈥檚 now detained.

Why We Wrote This

The leaders of the United States and El Salvador say they can't be forced to return a man deported in error from the U.S., setting up a struggle between the executive branch and the courts.

Two words are stirring debate. The Supreme Court last week ruled that the government must 鈥渇acilitate鈥 the release of Mr. Abrego Garcia from a Salvadoran prison. Yet it also sought clarity on a lower court order about how the government should 鈥渆ffectuate鈥 his return, with deference to the executive branch in foreign affairs.

Secretary of State Marco Rubio said Monday in an Oval Office meeting between Mr. Trump and Mr. Bukele that foreign policy 鈥渋s conducted by the president of the United States, not by a court.鈥 Attorney General Pam Bondi suggested in the meeting that the U.S. could 鈥減rovide a plane鈥 for Mr. Abrego Garcia if the Salvadoran government wanted to return him. Yet El Salvador will not return the deportee, said President Bukele in Washington, citing his own country鈥檚 crackdown on crime.

鈥淥f course I鈥檓 not going to do it,鈥 Mr. Bukele said. 鈥淗ow can I smuggle a terrorist into the United States? I don鈥檛 have the power to return him to the United States.鈥 The White House has said it is paying El Salvador some $6 million to hold detainees.

Abrego Garcia Family/Reuters
Kilmar Abrego Garcia, a Salvadoran migrant who lived in the United States with a work permit and was deported to El Salvador in what Justice Department officials called an "administrative error," is seen wearing a Chicago Bulls hat, in this image obtained by Reuters April 9, 2025.

The allies鈥 out-of-our-hands approach has raised urgent questions about legal recourse for people wrongfully removed from the U.S.

American immigration officials have wrongly detained and deported immigrants and U.S. citizens before, researchers say. Yet how past protocols apply to this case remains unclear 鈥 as Mr. Abrego Garcia is not just in a foreign country but also in a foreign prison.

Those facts point to two key issues, says Cristina Rodr铆guez, professor at Yale Law School. First, 鈥渨hether a court can order the government to make every effort to return the person who they erroneously removed,鈥 she says.

The harder question?

Whether there is anything a court can require of the government, she says, 鈥渨hen returning someone will entail getting a foreign government to comply.鈥

Why this case matters

The Abrego Garcia case is the latest confrontation between executive and judicial authority in the second Trump term.

The unauthorized immigrant had his asylum application denied in 2019, due to missing the one-year filing deadline. However, an immigration court judge granted him protection from deportation to El Salvador, as Justice Department lawyers have recognized, due to fear of persecution by a gang called Barrio 18.

The government continues to claim he is a member of MS-13, which his counsel denies. The Department of Homeland Security has also claimed, without producing evidence, that he has been involved in human trafficking.

U.S. District Court for the District of Maryland/AP
A man identified by Jennifer Vasquez Sura as her husband, Kilmar Abrego Garcia, is forced to sit with other prisoners in the Terrorism Confinement Center in Tecoluca, El Salvador.

An attorney for Mr. Abrego Garcia that a contempt order might be necessary to compel the government to return his client.

In recent court filings, the government has maintained that Mr. Abrego Garcia is , but also that the order to 鈥渇acilitate鈥 his return means allowing him to reenter the U.S. 鈥 not more.

鈥淭he federal courts have no authority to direct the Executive Branch to conduct foreign relations in a particular way,鈥 Justice Department lawyers wrote.

Several immigration and legal scholars disagree with the government鈥檚 rationale.

Given the government鈥檚 disregard, 鈥淚 do think we鈥檝e likely entered into the constitutional crisis,鈥 says Jennifer Koh, co-director of the Nootbaar Institute for Law, Religion, and Ethics at Pepperdine University.

鈥淚f the government can do this to Mr. Abrego Garcia, ... then it can really happen to anyone,鈥 she says. (As one government watchdog , between fiscal years 2015 and 2020, Immigration and Customs Enforcement (ICE) deported 70 potential U.S. citizens.)

The Supreme Court鈥檚 order, while siding largely with the deportee, 鈥渃ould have been far more clear,鈥 says Ms. Koh, and 鈥渟eemed to grant unnecessary permission to the government to take the position that it has.鈥

Even if the U.S. did bring Mr. Abrego Garcia back, it鈥檚 likely not 鈥渃ase closed,鈥 says Simon Hankinson, senior research fellow at The Heritage Foundation鈥檚 Border Security and Immigration Center. The U.S. could try to remove him to another country, he says. After 23 years as a foreign service officer at the State Department, Mr. Hankinson says this is the first he鈥檚 aware of an attempt to 鈥渃ompel our government to bring back someone who wasn鈥檛 supposed to be here in the first place.鈥 That鈥檚 because 鈥淐ountry A cannot force Country B to hand over one of its citizens,鈥 absent an agreement, he says.

Others point to precedent for such agreements. 鈥淭he federal government regularly extradites criminals from foreign countries who are attempting to evade punishment by the U.S.,鈥 says Jacqueline Stevens, founding director of the Deportation Research Clinic at Northwestern University. So it seems difficult to think a court would find an argument of impossibility persuasive, she says.

White House adviser Stephen Miller, an influential immigration hawk, also mentioned extraditions Monday, with a different argument.

鈥淚t鈥檚 up to El Salvador and to the government and the people of El Salvador what the fate of their own citizens is,鈥 Mr. Miller Fox News. 鈥淲e can鈥檛 extradite citizens of foreign countries to our country over the objection of those countries.鈥 Mr. Miller also claimed on Fox that the U.S. did not deport Mr. Abrego Garcia by mistake.

Mr. Miller argues that terrorists aren鈥檛 entitled to protections from deportation. The Trump administration , which , as a foreign terrorist organization this year.

Jose Luis Magana/AP
Jennifer Vasquez Sura, the wife of Kilmar Abrego Garcia of Maryland, who was mistakenly deported to El Salvador, speaks during a news conference in Hyattsville, Maryland, April 4, 2025.

Precedent for deportation returns

The U.S. has allowed for the return of wrongfully deported people previously, including a man from El Salvador deported in 2019, despite protection from deportation and a pending asylum application.

Official procedures were referenced in the Supreme Court from Thursday. A statement by Justice Sonia Sotomayor, joined by Justices Elena Kagan and Ketanji Brown Jackson, notes the government鈥檚 鈥渙wn well-established policy鈥 by citing a document from 2012.

That ICE talks about paroling in deported immigrants at ports of entry, and that facilitating a return doesn鈥檛 necessarily involve funding an individual鈥檚 commercial flight back to the U.S. However, the document is about letting back in 鈥渓awfully removed aliens.鈥 Mr. Abrego Garcia鈥檚 deportation was deemed unlawful, and while imprisoned, he can鈥檛 currently arrive at a U.S. port of entry.

Neither ICE nor the Department of Homeland Security responded to requests to clarify protocols for returning wrongfully deported people.

As Mr. Abrego Garcia鈥檚 case continues, so do deportations to El Salvador, according to the State Department. Secretary of State Rubio on the social platform X that, on Saturday night, 鈥渁nother 10 criminals鈥 from MS-13 and Tren de Aragua had arrived.

Sarah Matusek reported from Denver and Caitlin Babcock from Washington.

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