It is inconceivable that the secretary of state is unaware the man had a legal right against deportation to El Salvador that was enforceable in court.
A s absurd as was Salvadoran President Nayib Bukele’s commentary about the Abrego Garcia case in the Oval Office on Monday, he was matched whopper-for-whopper by Trump administration officials. Consider the secretary of state.
Marco Rubio is too smart not to know that what he was saying was utter nonsense. The secretary haughtily pronounced that he didn’t see what all the fuss was because Abrego Garcia is a Salvadoran national who was illegally in the United States, and who was simply deported to his own country, which is what’s supposed to happen.
Rubio has become a key figure in the administration’s push to expel unwanted aliens — he was the decision maker in the Mahmoud Khalil case and will have to play that role again now that the administration is trying to deport Khalil’s sidekick, Mohsen Mahdawi. Presumably, then, Rubio knows enough about the laws he’s enforcing to understand that the repatriation of an alien — even an illegal alien — is not what’s supposed to happen when an immigration judge has ruled that the illegal alien may not be deported to his home country because he has a credible fear of persecution.
That’s exactly what happened in Abrego Garcia’s case in 2019.
The immigration judge did not grant asylum because Abrego Garcia’s claim was time-barred. (Asylum claims must be brought within a year of the alien’s entry, and by 2019 Abrego Garcia had been here for about seven years). But the immigration judge did grant the illegal alien withholding of removal to El Salvador. As Secretary Rubio undoubtedly realizes, that meant the illegal alien could be deported (i.e., he remained “removable”) but he could not lawfully be deported to El Salvador.
Trump administration officials do not want to dwell on this point because it inconveniently occurred during the first Trump administration. It was the Trump Justice Department that decided not to appeal the withholding of removal order, which is why that order is still binding today.
There is a slim possibility, despite the lapsing of six years, that Attorney General Pamela Bondi could still revisit the withholding of removal order (because immigration courts are part of the Justice Department and subordinate to the AG). But there is to date no public record of her having tried to do that. I have to assume that if the attorney general had taken such action, she would have said so during one of her many appearances on political talk shows, and that her Justice Department would disclose the matter to Judge Paula Xinis rather than continuing to stonewall.
As I said, it’s only a slim possibility, and perhaps the Justice Department decided it was not worth pursuing. But had the attorney general succeeded in the difficult legal process of reopening and reversing a six-year-old withholding of removal order, then Rubio would be right: There would have been no impediment to Abrego Garcia’s removal (and, by the way, it wouldn’t matter whether the Justice Department could prove he is a member of MS-13).
After airbrushing the inconvenient withholding of the removal order out of the picture, Rubio went on a ridiculous rant about how the foreign policy of the United States is run by the president, not by a judge. As the former senator is surely aware, the withholding of removal remedy was enacted by Congress. (See Title 8, U.S. Code, §1231(b)(3), “Restriction on removal to a country where alien’s life or freedom would be threatened.”) In this instance, withholding of removal was ordered by an immigration judge, not by Judge Xinis, the Supreme Court, or some other Article III tribunal. That is, it was ordered by an executive branch officer in the first Trump administration. What is stymying the president here is statutory law and the actions and inactions of his own administrations, not a federal judge.
Nor is this anything close to a judicial usurpation of the president’s power to conduct U.S. foreign policy. To repeat (see here and here), the courts have not interfered at all with the power of the president to make a bilateral agreement with a foreign head of state in which the foreign country agreed to cooperate with the federal government regarding the custody of prisoners. Whether to make or not make such an agreement is entirely up to the president. On the other hand, if a litigant in the United States has a legitimate claim that is cognizable in federal court, the executive branch may not obstruct the litigant. Pursuant to his oath of office, the president must conduct foreign policy, just as he must carry out all executive duties, consistent with the laws of the United States.
This is perfectly obvious. Let’s say, hypothetically, President Bukele asked President Trump to help him compel testimony from an American witness in a Salvadoran court case. The president could agree to try to help, but that would not mean the executive branch could snatch the American and transport him to El Salvador without due process, while Trump and Rubio chanted, “The president, not some judge, is in charge of foreign relations.” Instead, the president would have to direct the Justice Department to go through established legal process for securing the American’s testimony, and the American would be able to posit any viable legal objections to being forced to travel overseas and testify.
It is inconceivable that the United States secretary of state is unaware that Abrego Garcia had a legal right against deportation to El Salvador that was enforceable in federal court. The Trump Justice Department confessed as much to the Supreme Court. See Noem v. Abrego Garcia (April 10, 2025): “The United States acknowledges that Abrego Garcia was subject to a withholding order forbidding his removal to El Salvador, and that the removal to El Salvador was therefore illegal.”
A federal court’s vindication of a person’s legal rights is not a matter of the judge trying to wrest control of foreign policy. It’s the law. I’m pretty sure Marco Rubio knows that.