Attorneys for Kilmar Abrego Garcia, a Maryland man mistakenly deported to a prison in El Salvador, say the government has failed to provide appropriate responses to a judge’s order for expedited discovery and to her questions about facilitating his return to the U.S.
In a letter addressed to U.S. District Court Judge Paula Xinis, Abrego Garcia’s lawyers requested a hearing to be scheduled Wednesday “to address the government’s failure to comply” with Xinis’ order for expedited discovery in the case.
Xinis on Tuesday issued a scathing order denying the Justice Department’s objection to some of the discovery in the case, accusing the department of “continued mischaracterization of the Supreme Court’s Order,” to return Abrego Garcia and writing the “defendants’ objection reflects a willful and bad faith refusal to comply with discovery obligations.”
Xinis also denied a Justice Deparmtnet claim that it does not need to commit to answering questions brought by Abrego Garcia’s lawyers and can instead claim privilege over the answers.
“For weeks, Defendants have sought refuge behind vague and unsubstantiated assertions of privilege, using them as a shield to obstruct discovery and evade compliance with this Court’s orders. Defendants have known, at least since last week, that this Court requires specific legal and factual showings to support any claim of privilege,” Xinis wrote.
“Yet they have continued to rely on boilerplate assertions. That ends now. If Defendants want to preserve their privilege claims, they must support them with the required detail. Otherwise, they will lose the protections they failed to properly invoke.”
Xinis ordered a speedy fact-finding process after the Trump administration refused to comply with three different court orders, including an order from the Supreme Court, to return Abrego Garcia to the U.S. so he can receive due process regarding the Trump administration’s claim that he is an MS-13 gang member.
Last week in court, a Justice Department attorney said that the Trump administration would facilitate Abrego Garcia’s return only if he arrived at a port of entry and continued to dodge questions from Xinis about what, if anything, the Trump administration is doing to return the man.
Xinis said that “every day Mr. Abrego Garcia is detained in CECOT is another date of irreparable harm” and gave both sides two weeks to complete expedited discovery in the case, including sworn depositions from Trump administration officials with first-hand knowledge of the efforts to return him. Depositions are set to be completed on Wednesday.
But attorneys for Abrego Garcia say all of the discovery produced by the Justice Department has been “nothing of substance,” and “consists entirely of public filings from the dockets, copies of Plaintiffs’ own discovery requests and correspondence, and two nonsubstantive cover emails transmitting declarations filed in this case.” Other questions for which Abrego Garcia’s attorneys have sought answers have been “similarly non-responsive,” they wrote.
The plaintiff’s lawyers said that the government “artificially” narrowed Xinis’ order for discovery “to avoid complying with its obligations.”
“The Government refuses to respond to interrogatories it claims are ‘based on the false premise that the United States can or has been ordered to facilitate Abrego Garcia’s release from custody in El Salvador,'” Abrego Garcia’s attorneys wrote, adding that the Justice Department has not provided any information about Abrego Garcia’s detention before April 2, although he has been detained in El Salvador since March 15.
They also argued that the government has asserted privilege “including deliberative process privilege, state secret privilege, and ‘governmental privilege’ without any foundation for doing so.”
Justice Department attorneys countered that they have “put forward a good-faith effort to provide appropriate responses” to Abrego Garcia’s attorneys and added that they plan to file specific privilege claims over information pertaining to Abrego Garcia soon.
The government also said the administration is “in discussions” with the Salvadoran government to return Abrego Garcia, but “any requirement of a more detailed response by the Defendants would be wholly inappropriate and an invasion of diplomatic discussions.”
One detail of Abrego Garcia’s detention in El Salvador may prompt Xinis to seek more information about what the Trump administration knew — and when — about his transfer from CECOT, the country’s notorious supermax prison, to another detention center.
Maryland Sen. Chris Van Hollen, who met with Abrego Garcia last week, said he was moved from CECOT on April 9 to another lower-security detention facility in El Salvador.
But in court-mandated, daily status updates ordered by Xinis about Abrego Garcia’s condition and what the administration is doing to return him, four different officials — from Immigration and Customs Enforcement, the State Department, and Homeland Security — each stated that Abrego Garcia was being detained at CECOT after that date.
On Monday, the Trump administration confirmed that Abrego Garcia had been moved to a facility in Santa Ana, El Salvador, and reported based on conversations with the U.S. Embassy in El Salvador that he is “in good conditions and in an excellent state of health.”
