Why it is a question
The owner, at U10, quoting A9’s “correctability frontier”: “reminds me of the ‘if I can’t find it, it isn’t there’ stuff. let’s poke out the resource-boundedness here.”
A10 split “No remedy is available” into four propositions, which “do not form a simple universal hierarchy”: existence (some feasible sequence of actions would achieve the corrective objective), knowability (enough information exists somewhere to identify it), findability (the arrangement can discover it with the search it has) and deployability (it can authorize, coordinate and execute it before the deadline). And three statements that can differ in truth value in one situation:
- “We have not found a lawful means of returning this person”: a report of search failure.
- “No lawful means of returning this person exists”: an exclusion of alternatives.
- “We cannot find and execute a lawful means before the deadline”: a resource- and time-relative capability claim.
The record has the structure for items. CLAIM-312: a search that fails by the deadline establishes operational unavailability outright, and absence only with a certificate that the unsearched remainder cannot hold the item, from exhaustion, an invariant of the arrangement, or a closed-world default. CLAIM-311 is why exhaustion is not required: a sorted index certifies non-membership. TERM-055 is the availability, and TERM-085 carries it to corrective objectives.
What makes it open for remedies:
- The search space is not a collection. A remedy is a plan across institutions, and its space includes coalitions (CLAIM-457) and legal constructions not yet tried. What would play the sorted index’s part, an invariant that rules out the unsearched plans, is unclear.
- The searcher may be the party. A10: “one actor may influence the search environment faced by the actor responsible for reviewing or correcting its behavior.” An executive’s statement that it cannot comply is “evidence about the government’s stated position”, and a certificate issued by the party whose conduct is challenged is not independent (CLAIM-342’s requirement, for a judgement–observation loop).
- The budget is endogenous. A10: “for institutions, the budget is itself partly an outcome of political and organizational decisions”, so an office that no longer exists can make “correction is impossible” operationally true. Two questions then: “What can the system correct now?” and “How did it acquire, preserve, or lose that capacity?”
- A real absence exists too. After the East Wing’s demolition (CASE-170) the original fabric cannot be kept by any plan; at CECOT (CASE-175) a return proved possible after it was said not to be. A10: “A useful theory must distinguish a remedy that truly no longer exists from one that exists but cannot be discovered or activated.”
An answer would say what evidence licenses each of A10’s three statements, which of them a court is entitled to accept from a party, and what an arrangement must maintain beforehand so that a true “no remedy” can be certified quickly and a false one exposed. A10’s design: two or three institutions with the same information, authority, resources and actions, differing only in how the information is arranged (pre-indexed plans and escalation paths, unstructured search, or complementary information without a channel), alike in routine operation and parting under an urgent correction; A10: “The project should not take the divergence alone as evidence for its ontology.”
Note of 2026-10-29: two courts’ answers to a party’s account of itself
Two readings of this date give partial answers, of one shape.
- The Supreme Court in Abrego Garcia, LIT-1606 (NOTE-1376), did not accept the government’s position as settling what could be done. It left in place the requirement to facilitate release and 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.
- The Grand Chamber in El-Masri, LIT-1619 (NOTE-1391), has a burden-shifting rule (§§ 152–153, 165–167): where events lie within a State’s exclusive knowledge, it must give “a satisfactory and convincing explanation”, and a bare denial against concordant evidence fails. It is a rule for facts, not for claims of inability, but it is the same shape: the account of the party whose conduct is challenged is not accepted on its say-so where it alone holds the evidence.
Neither says what would certify that no remedy exists. The question is unchanged and stays Open.
Note of 2026-10-29: the remand order, read
The district court’s order granting expedited discovery on remand, ECF No. 79 of 15 April 2025, LIT-1841, is read (NOTE-1417). It is this question’s test case in part, with two corrections of emphasis. First, the government did not there say “we cannot”. It said that the duty was narrower than the court’s (“remove any domestic obstacles”), that the questions touched foreign affairs, and, through a State Department declaration, that the custody was El Salvador’s. The inability is implied by that last premise, not asserted. Second, the court does not test a certificate of inability; it refuses to proceed without an account. What it requires:
- a report of the search, sworn by someone with personal knowledge;
- a benchmark, the government’s own logged practice of facilitated returns, which shows from the party’s own records that the space of steps is not empty in kind;
- an inquiry into the arrangement behind the claimed limit, the terms on which CECOT held deportees and who authorizes the detention, because whether a remedy is available depends on who controls the custody;
- a legal justification for whatever cannot be disclosed.
It is a partial answer of the shape the earlier note of this date found: a party’s account of itself is not accepted where it alone holds the evidence. It adds that the account is measured against the party’s own past capability, a candidate for what plays the sorted index’s part: a record of what the arrangement has done before. It does not say what would certify that no remedy exists; that question never arose. The question is unchanged and stays Open.