A Key Trump Test Could Be Only Days Away

Where the Kilmar Abrego Garcia case stands.

President Trump meeting with President Nayib Bukele of El Salvador. (Photo by the White House)

El Salvador’s Terrorism Confinement Center, known as CECOT (an abbreviation for its Spanish name), is one of the largest prisons in the world. It can hold as many as 40,000 inmates. According to CNN, which recently toured the facility, prisoners are kept in communal cells that hold up to 100 men each for 23½ hours a day. The cells have no privacy; the inmates have no personal possessions. They use an open toilet. The lights are always on.

The prison also has more than 1,000 guards and 19 watchtowers. But, apparently, no one has the power to release an inmate.

Attorney General Pam Bondi said Monday that the U.S. lacked the authority to return Kilmar Abrego Garcia, who was one of around 250 migrants sent by the U.S. to CECOT, despite an immigration judge’s ruling that he should not be sent to his native El Salvador due to a legitimate fear of persecution.

“If they want to return him, we would facilitate it, meaning provide a plane,” Bondi said. “That’s up for El Salvador if they want to return him.”

As she said that, President Nayib Bukele of El Salvador was sitting just feet away, in the Oval Office for a meeting with President Donald Trump. But Bukele, too, said that there was no way for him to give Abrego Garcia back to the U.S. “The question is preposterous,” Bukele argued. “How can I smuggle a terrorist into the United States? I don’t have the power to return him to the United States.”

This is not true. According to court filings, Bukele has already returned at least nine individuals that the U.S. tried to send to CECOT: eight Venezuelan women and one Nicaraguan man.

“I overheard a Salvadoran official tell an ICE officer that the Salvadoran government would not detain someone from another Central American country because of the conflict it would cause,” the Nicaraguan man said in a sworn statement. “I also heard him say that they would not receive the females because the prison was not for females and females were not mentioned in the agreement.”

One of the eight women indicated that this decision was made by Bukele himself. “I was told that the President of El Salvador would not accept women,” she said in her own statement. All nine were flown back to the U.S., where they are now in detention. This was not considered smuggling, and it is hard to see how returning Abrego Garcia would meet that definition, either: Bondi, after all, said that the U.S. would provide a plane to facilitate his return, as long as Bukele signed off first. The Monday meeting between Trump and Bukele was quite chummy; presumably, an agreement to this effect could have been struck right there in the Oval.

Rather, Abrego Garcia remains at CECOT because the U.S. and Salvadoran governments don’t want to return him, not because they can’t — and, for now, no court is explicitly forcing them to. But that could change by this afternoon.

On April 4, U.S. District Judge Paula Xinis ordered the Trump administration to “facilitate and effectuate” Abrego Garcia’s return by the end of the day on April 7. An appeals court upheld her order, which Chief Justice John Roberts then paused before the deadline. On April 10, the full Supreme Court vacated the deadline in Xinis’ order — which had already passed — while keeping the rest intact, although Xinis was told to clarify it.

Xinis was correct in ordering the government to “facilitate” Abrego Garcia’s return and to “ensure that his case is handled as it would have been had he not been improperly sent to El Salvador,” the court said in an unsigned order. But what she meant by “effectuate” was unclear, the justices added, and “may exceed the District Court’s authority.” In composing her clarification, Xinis was told to give “due regard for the deference owed to the Executive Branch in the conduct of foreign affairs.” No dissents were noted in the order.

Hours later, Xinis ordered that the administration take “all available steps to facilitate the return of Abrego Garcia to the United States as soon as possible,” without setting a new deadline. She also told officials to answer three questions by the end of the day: where Abrego Garcia currently is, “what steps, if any” they had taken to facilitate his return, and “what additional steps” they plan to take.

The administration responded that they were “unable to provide the information requested by the Court” in such a short timeframe. Xinis wrote on April 11 that the government had “failed to comply” with her order seeking information and directed them to file answers to her three questions every day by 5 p.m.

The government has filed three such reports, although none of them have shed much light on the situation. The April 12 report said that, “based on official reporting from our Embassy in San Salvador,” it was the government’s understanding that Abrego Garcia is “alive and secure” at CECOT. The April 13 report offered “no updates for the Court beyond what was provided yesterday.” And the April 14 report quoted Bukele in saying that he was unable to “smuggle” Abrego Garcia back into the U.S.

Xinis is set to hold a hearing at 4 p.m. Eastern Time today, at which point she could ask the government for more information or rule that they haven’t been forthcoming in answering her questions so far. (The government has yet to say what steps they have taken or will take to facilitate his return, as the Supreme Court told them to be prepared to do.) The judge could also set a new deadline for the return of Abrego Garcia or offer more clarity on what steps she wants the government to take. (Xinis has yet to clarify what she meant by “effectuate,” as the Supreme Court told her to do.)

Any new rulings from Xinis are certain to be appealed up to the Supreme Court, which means we’re currently in a holding pattern until 1) she gives the administration an explicit order on the action she wants from them and 2) the justices either uphold or reject that order. The Supreme Court’s last comment on the matter was narrow enough that both sides celebrated it as a 9-0 ruling in their favor. In reality, the justices granted one major argument of Abrego Garcia’s lawyers (that the administration should “facilitate” his return) and one major argument of the government’s (that the president should receive deference regarding foreign policy), and told Xinis to combine both of these considerations in a more clarified order, which she hasn’t really done yet. (In addition, we don’t know for sure that the SCOTUS order was unanimous. It’s just that no justice publicly acknowledged dissenting.)

Presumably, Xinis’ next order, and the Supreme Court’s as well, won’t be as vague, which means we could be only days away from the administration being ordered explicitly by the justices to take certain steps regarding Abrego Garcia, setting up a high-stakes test of whether Trump will comply with a Supreme Court order.

Last week, Trump said that he would. “If the Supreme Court said bring somebody back, I would do that,” he told reporters. “I respect the Supreme Court.” We may soon find out whether or not Trump will stick to that promise.

Even if he does, the outcome will likely be anticlimactic for Abrego Garcia specifically, although it will obviously carry huge implications for Trump’s compliance with the rule of law. The entire reason Abrego Garcia’s deportation is contested is because an immigration judge ruled in 2019 that he could not be deported back to El Salvador specifically — not that he could not be deported.

This is known as a “withholding of removal,” and it is different than receiving asylum. (Abrego Garcia applied for asylum, but the same immigration judge found that he didn’t meet the bar to receive it.) According to a guide on the ICE website, compiled by a non-profit group, “Winning a case for Withholding of Removal only means that the U.S. government will not send you back to your home country. But if another country is willing to accept you, Immigration and Customs Enforcement (ICE) may try to send you there instead.”

It is almost certain that, even if he is returned to the U.S., the Trump administration would then seek to deport Abrego Garcia — whom they allege is a member of MS-13, which he denies — to any other country besides El Salvador. They would be on much firmer legal ground to do so.

But that’s getting ahead of ourselves. First we have to see whether Xinis requires more specific steps of the administration after today’s hearing. Then we’ll see whether the Supreme Court upholds such an order. And, if they do, then comes the question of whether the administration will comply with it (and what might happen to Abrego Garcia even if he is returned here).

Meanwhile, Abrego Garcia is not the only person sitting in CECOT who the government allegedly did not even intend to send there.

According to Documented, a non-profit news organization focused on New York City’s immigrant communities, when ICE agents arrested 19-year-old Venezuelan migrant Merwil Gutiérrez (who was later deported to CECOT), they admitted that they had been looking for someone else.

“The officers grabbed him and two other boys right at the entrance to our building,” Gutiérrez’s father said, relying on an account from his nephew, who was there. “One said, ‘No, he’s not the one,’ like they were looking for someone else. But the other said, ‘Take him anyway.’”

The government later said that Gutiérrez was a member of the gang Tren de Aragua, which he denies. Gutiérrez, like Abrego Garcia, was given no opportunity to litigate his deportation to El Salvador in a trial.

According to the New York Times, most of the men who were sent to CECOT “do not have criminal records in the United States or elsewhere in the region, beyond immigration offenses” and “very few of them” appear to have “clear, documented” gang affiliations.

The Supreme Court ruled last week that any future deportations under the Alien Enemies Act, the law used to deport Gutiérrez and most of the other migrants at CECOT (though not Abrego Garcia), must first include an opportunity for the migrants to mount a legal challenge. But it left unclear what, if any, legal recourse those already at CECOT have (and how forcefully the government can be compelled to return someone wrongfully imprisoned there), a set of questions which Abrego Garcia’s case could help resolve.