In a fiery legal exchange dripping with constitutional rebuke and sharp-edged precision, the Department of Justice (DOJ) delivered a masterclass in executive branch authority to U.S. District Judge Paula Xinis—an Obama appointee who appears determined to flex judicial muscle in the case of Salvadoran national and alleged MS-13 member Kilmar Armando Abrego Garcia.
But as the DOJ made unmistakably clear in its latest filing: the courtroom is not the cockpit of U.S. foreign policy, and no judge has the right to commandeer the State Department’s aircraft—or its authority.
What began as a standard deportation involving a man with a long paper trail of gang affiliations spiraled into a federal standoff when Judge Xinis ordered the Biden administration to explain why it shouldn’t be held in contempt for failing to bring Abrego Garcia back to the U.S. after his removal to El Salvador. This, despite the fact that El Salvador has him in custody and he’s no longer eligible for withholding of removal due to his ties to MS-13—a group now designated a foreign terrorist organization.
So when plaintiffs demanded the government be held in contempt, offered expedited discovery, and requested an evidentiary hearing to force compliance, the DOJ’s answer was simple: absolutely not.
In a sweeping and stinging rebuttal, the DOJ reminded Judge Xinis that the judiciary has limits—especially when it comes to foreign affairs. The plaintiffs, the DOJ argued, are essentially demanding that the court order the executive branch to:
- Compel a sovereign government to release one of its detainees;
- Dispatch U.S. personnel into a foreign nation;
- And fly a U.S. aircraft into foreign airspace for what would amount to an unauthorized extraction.
And that, the DOJ pointed out with barely veiled sarcasm, is not how diplomacy works.
“The Court instructed that any ‘directive’ should concern ‘Abrego Garcia’s release from custody in El Salvador’… not a demand to bring him back to the United States,” the DOJ wrote, directly citing the Supreme Court’s clarification on the matter. The brief further emphasized that “facilitate,” as interpreted in immigration law, does not mean “extract and repatriate,” but rather to remove barriers should a lawful return path exist. In Abrego Garcia’s case—it does not.
If Judge Xinis expected the DOJ to tremble before her contempt threat, the response made one thing clear: not only is the administration unimpressed, but it’s prepared to push back—hard. It rejected the “intrusive supervision” she demanded and made it known that even the daily case updates being provided are subject to reevaluation and potential challenge in the Fourth Circuit.
In fact, Assistant Director Evan Katz of ICE’s Enforcement and Removal Operations laid bare the entire sequence of events. He confirmed Abrego Garcia should not have been removed in the manner he was—but he also emphasized that the man is a confirmed member of MS-13, with removal ordered years ago and denied relief after failing to rebut that charge.
Now that MS-13 has been officially classified as a terrorist organization, the legal equation has shifted. Abrego Garcia no longer qualifies for protection under U.S. immigration law. “He has received all the due process he is likely to get,” Katz stated bluntly.
The deeper conflict here is not about one man—it’s about where the judiciary ends and the executive begins. Judge Xinis’s insistence on forcing federal officials to engage in diplomatic acrobatics to satisfy a domestic court order flies in the face of long-standing separation of powers precedent.
As the DOJ put it, “[Plaintiffs] ask this Court to order… interactions with a foreign sovereign—and potential violations of that sovereignty.” That’s not just bad jurisprudence—it’s a threat to U.S. credibility abroad.
And the DOJ isn’t bluffing. It warned that pushing for discovery into sensitive diplomatic exchanges—especially with Salvadoran President Bukele currently visiting the U.S.—could trigger assertions of executive privilege and even the invocation of state secrets protections.
