A federal judge will soon decide whether Kilmar Abrego Garcia, the undocumented man living in Maryland whose wrongful deportation to El Salvador by the Trump administration earlier this year thrust him to the center of President Trump’s immigration crackdown, can go free, or if the government should be allowed to deport him to the West African nation of Liberia instead.
During a nearly four-hour long hearing at the federal courthouse in Greenbelt, Maryland, Judge Paula Xinis sparred with Department of Justice officials over a host of complicated legal questions, among them the reasons for his proposed deportation to Liberia, whether she had jurisdiction to make such determinations and whether Abrego Garcia can even be removed from the U.S. in the first place.
Though Xinis didn’t issue her ruling from the bench, she signaled significant dissatisfaction with the government’s approach to the case, hinting that she might find that officials lacked the ability to remove him from the country altogether.
PAST REPORTING | Kilmar Abrego Garcia moved to a Pennsylvania detention facility
In the meantime, Abrego Garcia remains in federal custody, with the government barred from removing him from U.S. jurisdiction.
Habeus corpus and a missing removal order
Thursday’s hearing centered on Abrego Garcia’s habeas corpus petition, the legal mechanism by which individuals can argue federal detention violates the law. Abrego Garcia’s attorneys contend that their client's rights to due process have been violated, not only by his wrongful deportation to El Salvador, which the government admitted occurred “in error” and in violation of a previous judge’s order, but also by his subsequent detention after he was returned to the U.S.
Abrego Garcia’s legal team argues he’s faced retaliatory treatment, and at the very least is entailed to a hearing before an immigration judge to weigh in on whether he can be deported and to where.
Officials with the Departments of Justice and Homeland Security, conversely, argue they’ve complied with all due process requirements, going so far as to suggest Abrego Garcia is entitled to minimal such protections as a noncitizen, contrary to most contemporary case law on the topic. Moreover, the government says the question of whether and where Abrego Garcia can be deported isn’t to be decided in federal court in Maryland, but instead through the immigration court process, whose officials have said Abrego Garcia can no longer challenge such issues as his time to do so is long past.
Complicating matters further is the fact that that the government has been unable to produce, and indeed has tacitly admitted the lack of existence of, Abrego Garcia’s “final order of removal.” That legal document, issued by an immigration judge, serves as a de facto permission slip for federal authorities to deport someone in the country illegally.
Originally from El Salvador, Abrego Garcia entered the U.S. without proper documentation in 2011. In 2019, after a lengthy legal process in the immigration court system, Abrego Garcia’s request for asylum was denied by an immigration judge. But he was issued an order of withholding of removal, a document that prevents his deportation to his home country because officials believed he faced a likelihood of torture or violence should he return there.
That was the order violated by his March deportation to El Salvador, prompting the start of Abrego Garcia’s legal saga. It required several orders from Xinis, the Fourth Circuit Court of Appeals and ultimately the U.S. Supreme Court for the government to effectuate his return to the U.S.
But the immigration judge in 2019 appeared to have erred in issuing such a withholding order without a removal order itself. Justice Department attorneys argue the removal order is implied by the withholding order, though Abrego Garcia’s lawyers highlighted several previous cases where courts up to and including the Supreme Court specifically found that a removal order was needed to initiate deportation proceedings.
Xinis appeared to agree with Abrego Garcia’s team.
“You can’t fake it ’till you make it,” she said of the removal order. “You’ve got to have it.”
Should Xinis find Abrego Garcia formally lacks a removal order, he's likely to be released from custody and the government would have to restart deportation proceedings from scratch, granting him yet another chance to claim asylum and navigate the long and bureaucratic immigration process.
Uganda, Eswatini, Ghana, Liberia or Costa Rica
Even if the judge does find that the government can rely on the existing withholding order to effectuate Abrego Garcia’s deportation, he may still have other claims to relief.
Immediately upon Abrego Garcia’s return to the U.S. from El Salvador, he was charged with human smuggling and conspiracy charges in Tennessee, allegations he denies. He remained in custody in Tennessee until ordered released by the judge overseeing that case in August and returned to Maryland.
Just days later, however, Abrego Garcia was re-arrested by Immigrations and Customs Enforcement officers while appearing at a routine parole check-in appointment in Baltimore.
“President Trump is not going to allow this illegal alien, who is an MS-13 gang member, human trafficker, serial domestic abuser, and child predator, to terrorize American citizens any longer,” Secretary of Homeland Security Kristi Noem said in a statement at the time.
That started the process by which the government began to try to identify a “safe third country” to which Abrego Garcia could be removed, one other than El Salvador.
Over the past four months, DHS officials have proposed at least four such nations, all of them in Africa, as countries that might accept Abrego Garcia. Among the initial options were Uganda, Eswatini and Ghana, though news reports about poor treatment of immigrants or statements from political leaders within those nations noting their refusal to accept Abrego Garcia subsequently removed them from consideration
Now, the government has designated the West African nation of Liberia as the location for his removal, should the courts allow it.
Abrego Garcia does not speak the language of any such nation and has no ties to Africa of any kind.
In August, it was revealed that the government offered to deport Abrego Garcia to Costa Rica, a Spanish-speaking, Latin American nation, but only if he agreed to plead guilty to the human smuggling charges he faces in Tennessee.
He refused, and ever since the government has not included Costa Rica as an option for his removal.
Before Thursday’s hearing, Xinis ordered the government to produce a witness who could testify on behalf of DHS about the process by which the agency was determining where to send Abrego Garcia.
But during the hearing, that witness, John Cantú, acting assistant director of the enforcement and removal options within ICE, was unable to answer any specific questions about those negotiations, suggesting the State Department was the agency taking the lead.
Cantú, who’s been in his role only for just 17 days and maintained he had no specific subject matter expertise over Abrego Garcia’s case, pointed to testimony he was given by a State Department lawyer indicating the Liberian government had given the U.S. assurances not to torture Abrego Garcia or send him to El Salvador, at least temporarily.
How long those “temporary” assurances would last remains unclear; no government official could say.
Meanwhile, Abrego Garcia’s team pointed to a promise from the Costa Rican government promising to accept Abrego Garcia and grant him asylum. Abrego Garcia maintains that he would accept deportation to Costa Rica right now, should the government agree.
But DOJ officials in Thursday’s hearing indicated that was no longer an option; the offer from Costa Rica to accept Abrego Garcia was “non-binding,” DOJ lawyer Drew Ensign said, and sending him there would now require “further negotiation and likely additional commitments by the United States.”
What those commitments might be, no official could state, much to the judge’s chagrin.
Cantú “said nothing,” Xinis noted following his testimony, “and I just want the underlying information.”
On the government’s inability to answer those questions, “It's so odd, and that's really being polite,” she remarked.
Xinis noted that if she is to grant Abrego Garcia’s habeus petition and order him released, she’s hesitant to dissolve her injunction blocking his deportation to another country given the many shifting statements from the government. Both Abrego Garcia’s team and the DOJ lawyers agreed to host further talks about how to approach that question, should the judge rule in Abrego Garcia’s favor.
Xinis cautioned during the hearing that it was “not going to be a quick decision” for her to reach, but promised the court would “do our best.”
“These are weighty issues,” she noted.
After the hearing, Simon Sandoval-Moshenberg, one of Abrego Garcia’s attorneys, said he was "hopeful" the judge would at least order his client released from detention.
“What comes after that, I guess we’ll just have to see,” he conceded.
Asked by Scripps News what it meant to represent a client whose name has become synonymous with the Trump administration’s immigration enforcement agenda, Sandoval-Moshenberg highlighted that such a role was never one Abrego Garcia sought.
“This is not something that Mr. Abrego Garcia chose, right? He didn't choose to become an activist. He didn't choose to become the face of, you know, a movement,” he said. “This case has always been about the government trying to prove that they can do whatever they want, whenever they want, to whomever they want, and judges in black robes have nothing to say about it.”
“Due process applies to all,” Sandoval-Moshenberg added. “That's been the legal principle that we’re trying to vindicate.”
