Garcia, a citizen of El Salvador, who is portrayed as a "Maryland father" in most news reports, entered the US illegally in 2011. In 2019, he was arrested on allegations of membership in the violent Salvadoran gang called Mara Salvatrucha, or MS-13. At that time, he applied for political asylum, which was denied. He was given an order of removal, but a judge put his deportation on hold on the grounds that he might be in danger if he returned to El Salvador. In early March, Garcia was arrested and put on a plane to El Salvador and the Terrorist Confinement Facility, CECOT.

His attorneys sued, and a judge ordered the Trump administration to return Garcia to Maryland. In her order, the judge called the deportation “an illegal act.”

When White House spokeswoman Karoline Leavitt reacted by saying, “We suggest the Judge contact [El Salvador’s] President [Nayib] Bukele because we are unaware of the judge having jurisdiction or authority over the country of El Salvador,” it struck me, and many others, as the kind of remark you can make if you are in no danger of facing the judge in a courtroom. As it turned out, she perfectly captured the tone of the administration's request for a stay of her order.

High Points

The first response was that the judge's order is impossible to comply with.

The district court’s order—a command to “facilitate and effectuate” Abrego Garcia’s return from a foreign country by midnight on Monday—is unlawful. There is no likelihood that it would survive review on appeal.

...

The order below is neither possible nor proper. As noted, Abrego Garcia is an El Salvadoran national, being held in El Salvador, at the hands of the El Salvadoran government.

The conclusion is my favorite.

Because the United States has no control over Abrego Garcia, however, Defendants have no independent authority to “effectuate” his return to the United States—any more than they would have the power to follow a court order commanding them to “effectuate” the end of the war in Ukraine, or a return of the hostages from Gaza.

The government's argument is that Garcia had a final deportation order, so the district court judge erred in hearing the case because it was outside her jurisdiction.

Even putting aside these fundamental defects, the order below also runs into a statutory bar. Section 1252(g) strips district courts of jurisdiction to review “any cause or claim by or on behalf of any alien arising from the decision or action by the Attorney General to … execute removal orders 11 against any alien” under the INA, except as otherwise provided in § 1252. 8 U.S.C. § 1252(g) (emphasis added). This is such a suit. The district court thus lacked jurisdiction over this case, and lacked authority to issue its order. //

The government's brief conclusively takes apart every aspect of Garcia's case. He had a deportation order, he had MS-13 connections that make him ineligible to enter the US, the judge not only doesn't have the clout to make El Salvador send him back to the US, she isn't legally allowed to hear the case.