The case
The owner, at U7: “A good one here is the DOJ ignoring court orders not to deport people to CECOT, then claiming they didn’t have the authority to bring them back, while CECOT claimed they didn’t have the authority to send them back”.
On 15 March 2025 the United States flew Venezuelan detainees, removed under the Alien Enemies Act, and others to El Salvador, where they were held in the Terrorism Confinement Center (CECOT), after Judge James Boasberg had ordered such removals halted in J.G.G. v. Trump. Among those removed was Kilmar Abrego García, whose removal to El Salvador a standing withholding order forbade. On 10 April 2025 the Supreme Court left in place the requirement that the government “facilitate” his release, the United States having acknowledged that the removal was illegal (LIT-1606). At the White House on 14 April, the Attorney General said the matter was El Salvador’s, and President Bukele said: “I don’t have the power to return him to the United States.” Abrego García was returned on 6 June 2025 to face federal criminal charges, and in July 2025 the Venezuelans held at CECOT were sent to Venezuela in an exchange of prisoners.
The exchange added particulars the record has not checked, kept as the exchange’s (A7): that DOJ argued the oral instruction to turn the planes around was not binding as the plaintiffs claimed; that Boasberg found probable cause for a criminal-contempt inquiry; that when asked whether he could release Abrego García inside El Salvador, Bukele did not claim inability but refused; and that on 22 December 2025 Boasberg found the United States in constructive custody of the Venezuelans, from the origin of the arrangement, the absence of an independent Salvadoran interest in holding them, and their release when the United States sought it.
What it shows
- No unilateral power is not no power (CLAIM-457). The United States said it could not compel a foreign state; El Salvador’s president said he could not admit a man to the United States. Both can be true while the two together can return him, and the June return and the July exchange show that they could. A7: “No single institution has unilateral control” does not imply “No institution, or combination of institutions, can remedy the situation.”
- Custody, control and responsibility, three boundaries (CLAIM-405). Who physically held the prisoners: El Salvador. Who selected and sent them: the United States. Who could bring about their release: on the constructive-custody finding, the United States. A7: “These were different inquiries about the same institutional arrangement. A geographical boundary was insufficient to answer all of them.”
- Coordination without a joint agent (CLAIM-418). The two governments need not form one agent to run one detention arrangement. A7: “coordination sufficient to produce an outcome does not necessarily imply an institutional arrangement sufficient to recognize, contest, and remedy that outcome” (CLAIM-462).
- A forward organization without a reverse one (QUESTION-278). The arrangement had procedures for selection, transport and custody, and none for undoing a transfer once a court objected. A9: “an asymmetry between the forward organization of action and the reverse organization of correction”.
- A claim of inability is evidence of a position (QUESTION-279). A10: an assertion of inability “is evidence about the government’s stated position. To establish actual incapacity, we would need an appropriately specified model of possible plans, institutional cooperation, legal constraints, and available resources.”
- A remedy late is a different remedy. A7: “A right to contest removal before deportation, for example, is not fully restored by a much later opportunity to seek return,” and the detention suffered is not undone by a later release.
What it does not show
- Contempt, or anyone’s intent. Whether officials defied an order was still before the courts when the exchange ran. A9: “Intent, causation, feasibility, and legal duty require separate evidence.”
- That joint ability is joint responsibility. A8: “joint ability to produce an outcome does not itself imply joint legal responsibility for producing or correcting it.” That needs a normative mapping CLAIM-457 does not supply.
- That Abrego García’s return shows he could have been returned at every earlier moment. A7: it “demonstrates that his physical location in Salvadoran custody had not made return impossible”, no more.
- Standing. The removals, the order of 10 April, the White House remarks, the return and the July exchange are documented; the contempt proceedings and the custody ruling are the exchange’s. El-Masri v. the former Yugoslav Republic of Macedonia (LIT-1619) is the comparator A8 proposed, for what is new here and what is the old problem of rendition.
Note of 2026-10-29: the order and the comparator, read
The Supreme Court’s order in Noem v. Abrego Garcia, LIT-1606, is now read (NOTE-1376). The case’s account of it is right. Two particulars can be added. The Court itself separated facilitating release from effectuating return, and left the second open. And it asked the government to “share what it can concerning the steps it has taken and the prospect of further steps”: a court asking for the evidence behind a claim of inability before accepting it, which is QUESTION-279’s move.
El-Masri, LIT-1619, is read too (NOTE-1391), and it marks what is new here. Three differences.
- Where the routes of responsibility start. In El-Masri they run from the sending State’s own acts on its own territory: its agents held him, acquiesced in the CIA team’s torture and authorized the flight to Kabul.
- What the State is responsible for abroad. Under Article 3 it is responsible for exposing him to the risk, and the Court says expressly that it does not adjudicate the receiving state’s responsibility (§ 212). Only under Article 5 is the sending State responsible for the detention abroad itself, as part of a continuing enforced disappearance it facilitated (§§ 239–241).
- The remedy. Compensation and a finding: the applicant was by then free, and the Court ordered nothing about where he was.
So the question this case raises, which government could or had to undo the transfer while the person was still held, does not arise in El-Masri. That is the new part. The case is unchanged.
Note of 2026-10-29: the remand orders, read
The district court’s order of 15 April 2025 granting expedited discovery, LIT-1841, is read (NOTE-1417), with the two orders it recites. Particulars the case can take as documented:
- The amended order of 10 April (ECF No. 51), made hours after the Supreme Court’s, dropped “effectuate” and required a declaration from someone with personal knowledge on Abrego Garcia’s location and custody, the steps taken and the steps to come. On 11 April (ECF No. 61) the court found that the government had “made no meaningful effort to comply”.
- The order of 15 April reads “facilitate” as taking the steps available toward his release from Salvadoran custody, measures that against the government’s own past practice of facilitated returns, finds that no step had been shown, and opens discovery that includes who authorizes the detention. It does not decide whether return was possible.
- The custody conflict (footnote 3). A State Department declaration that he was held “pursuant to the sovereign, domestic authority of El Salvador” is set against a press report, quoted by the court and not checked here, that the United States paid six million dollars to house the detainees “pending the United States’ decision on their long-term disposition”. That bears on the case’s line on custody and control (CLAIM-405).
The case is unchanged.