Has the Trump administration requested the return of anyone illegally deported to El Salvador? What documents are there regarding arrangements between that country and the U.S. concerning the detention of alleged Venezuelan gang members in a notorious prison there? What steps has the U.S. taken to pursue the return of Kilmar Abrego Garcia, specifically?
Those are just some of the questions that lawyers for the migrants being held in a notorious Salvadoran prison want official answers to.
Their request arose in the ongoing litigation over the Alien Enemies Act. President Donald Trump’s invocation of that wartime law has been deemed unlawful by several judges, who point out that we aren’t at war or in any similar situation that would make the 1798 act relevant. Yet, these important rulings from judges around the country are only stopping further deportations under the act. There’s still the open question of whether lawyers for the people already sent to El Salvador can secure their return to the U.S.
That litigation is playing out in Washington, D.C., before that district’s chief federal trial judge, James Boasberg. After holding a hearing last week, he determined that he needs to figure out whether the scores of people held in that Salvadoran prison are technically in U.S. custody, such that they can get relief in U.S. courts. Obviously, they aren’t being held in the U.S., but a broader legal concept called “constructive custody” is at play.
Boasberg said that discovery could help him answer that thorny custody question (discovery being the information-gathering process for litigation). That’s the context in which the questions from lawyers for the Salvadoran detainees arise. They told Boasberg in a court filing Monday that they think the record is already clear enough to establish his jurisdiction to provide them relief. But they filed a list of proposed questions for the so-called jurisdictional discovery inquiry.
Specifically, they proposed the following requests to the government, including ones touching on the Abrego Garcia case that’s the subject of separate litigation in Maryland:
1. Admit that the United States requested of El Salvador that CECOT Class Petitioners (hereinafter ‘Petitioners’) be detained in El Salvador. 2. Admit that the United States has committed to provide El Salvador with funds that it has not yet provided in recognition of El Salvador’s cooperation in detaining alleged members of Tren de Aragua. 3. Admit that, prior to Petitioners’ removal, the United States was aware that Petitioners would be detained at CECOT once removed to El Salvador. 4. Admit that the United States, acting pursuant to the Alien Enemies Act, decided that each of the Petitioners should be removed to El Salvador. 5. Admit that El Salvador did not request that any particular Petitioner be sent to El Salvador. 6. Admit that prior to Petitioners’ arrival in El Salvador on March 15-16, 2025, El Salvador had not charged any of the Petitioners with a crime. 7. Admit that prior to Petitioners’ arrival in El Salvador on March 15-16, 2025, El Salvador had not convicted any of the Petitioners of a crime. 8. Admit that President Trump stated to ABC News on April 29, 2025, that he could secure the return of Mr. Kilmar Abrego Garcia to the United States from El Salvador. 9. Admit that the United States has not requested the return of any Petitioner from El Salvador to the United States. 10. Admit that the United States has taken no actions to obtain the return of any Petitioner from El Salvador to the United States. 11. Admit that the Vice President of El Salvador said in an interview that El Salvador is providing a ‘service’ to the United States by detaining Petitioners at CECOT. 12. Admit that the Vice President of El Salvador said in an interview that the status of the detainees sent to El Salvador is assessed by the country sending the detainees.
They further proposed asking the government to:
1. List all efforts by the United States to request or secure the return of Petitioners to the United States.
2. Identify the date and time that the United States informed El Salvador of the specific identities of the individuals that the United States removed to El Salvador on March 15- 16, 2025, pursuant to the Alien Enemies Act.
3. List the measures taken by the United States to pursue the return of Mr. Kilmar Abrego Garcia from El Salvador to the United States.
4. Identify all individuals that the United States removed to El Salvador solely pursuant to the Alien Enemies Act.
5. Describe the process followed by the United States to identify the individuals to be removed to El Salvador pursuant to the Alien Enemies Act.
6. Identify all individuals that the United States removed to El Salvador whom the United States has designated as members of Tren de Aragua. Their request also includes “all documents memorializing, documenting, or describing the arrangements between the United States and El Salvador concerning the detention of alleged Tren de Aragua members in El Salvador.” Per Boasberg’s post-hearing order, the government can respond by Wednesday to the discovery proposal and then the judge can weigh in. Given the government’s stance in this litigation and elsewhere in Trump’s second term, it won’t be surprising if it resists answering such questions, at least in any depth. That could be why lawyers for the Salvadoran detainees told Boasberg that they think there’s already enough proof he has jurisdiction to provide relief, because given the government’s potential further resistance or delay, this exercise could drag the matter out further without providing useful information, all while their clients sit in that foreign prison, having been sent there under a legal authority that judges have subsequently deemed inapplicable. Nonetheless, this discovery inquiry is a potential step toward facilitating their return. Subscribe to the Deadline: Legal Newsletter for expert analysis on the top legal stories of the week, including updates from the Supreme Court and developments in the Trump administration’s legal cases.
Jordan Rubin is the Deadline: Legal Blog writer. He was a prosecutor for the New York County District Attorney’s Office in Manhattan and is the author of “Bizarro," a book about the secret war on synthetic drugs. Before he joined MS NOW, he was a legal reporter for Bloomberg Law.
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