Trump immigration official testifies on plans to deport Abrego Garcia

Greenbelt, Maryland — A federal judge on Friday sharply questioned Justice Department lawyers about Trump administration plans to again deport Kilmar Abrego Garcia, the Salvadoran man who was mistakenly deported to a prison in his home country earlier this year before he was brought back to the U.S. to face criminal charges.

U.S. District Judge Paula Xinis questioned what is standing in the way of immigration authorities removing Abrego Garcia to Costa Rica, a country that he has said is his preferred place to go and which has indicated it is willing to accept him.

Xinis also repeatedly expressed frustration with testimony from a U.S. immigration official, Jonathan Schultz, who appeared to answer questions about the administration’s next steps regarding Abrego Garcia’s potential removal to Eswatini, a small African nation formerly known as Swaziland, or other countries, including Costa Rica.

Xinis told Drew Ensign, a Justice Department lawyer, that the government presented a witness who “knows nothing, and I mean next to nothing, about Costa Rica.” She said she gave specific directions about the scope of the testimony she was seeking, and said the Justice Department had again ignored those instructions, “getting to the three strikes, you’re out.”

The administration has attempted to deport Abrego Garcia while his criminal case on charges of human smuggling plays out in Tennessee, but Xinis issued an order in August preventing immigration officials from removing him from the U.S. Xinis is weighing whether to release Abrego Garcia from immigration custody while a challenge to his detention moves forward.

Schultz, an official from Enforcement and Removal Operations at Immigration and Customs Enforcement, told the court that government officials have had discussions with numerous foreign nations about accepting Abrego Garcia upon his removal from the U.S.

Schultz said the U.S. reached an agreement with Eswatini to accept people deported from the U.S. and has made assurances they will be safe from torture and persecution. But he said Eswatini hasn’t agreed to receive Abrego Garcia, specifically, and the Trump administration did not reach out to the African nation about him until Wednesday evening, according to Schultz.

Administration officials do not appear to have undertaken efforts yet to evaluate whether Abrego Garcia would be tortured, detained or face persecution if deported to Eswatini, Schultz said.

The immigration official told the court the Trump administration has also been discussing removing Abrego Garcia to Ghana, but a notice of his potential deportation to the country had been sent to Abrego Garcia prematurely.

Ghana’s foreign affairs minister, however, said on social media earlier Friday that his country “is not accepting Abrego Garcia.”

“He cannot be deported to Ghana. This has been directly and unambiguously conveyed to US authorities,” Samuel Okudzeto Ablakwa, the foreign affairs minister, wrote on Facebook. “In my interactions with US officials, I made clear that our understanding to accept a limited number of non-criminal West Africans, purely on the grounds of African solidarity and humanitarian principles would not be expanded.”

Schultz said he is “confident” that once the Trump administration receives approval from a third country to accept Abrego Garcia, he could be deported within 72 hours.

Ahead of the hearing, Xinis said she wanted the witness to have answers on what steps the government has taken to deport Abrego Garcia to Eswatini or any other country, including Costa Rica, which he designated as his preferred country of removal. The judge also said the administration official should be prepared to testify about what additional steps the government could take “in the reasonably foreseeable future” to deport Abrego Garcia.

Schultz revealed that he believes Eswatini entered into discussions about whether Abrego Garcia could be removed to the country after the government in Uganda declined to accept him. Abrego Garcia’s lawyers received a notice from the Department of Homeland Security in late August informing them that he might be deported to Uganda. Documents obtained by CBS News in August indicated that the Trump administration and Uganda reached a deal for the East African nation to accept deportees.

Abrego Garcia’s attorneys have moved to free their client from federal immigration detention as his immigration case plays out, citing a 2001 Supreme Court decision that found federal law does not permit “indefinite detention” for those the government seeks to deport. Detention should be limited to a “period reasonably necessary” to bring about their removal from the U.S, the high court ruled.

After being released from criminal custody on unrelated charges, Abrego Garcia was taken into immigration custody in late August, and his lawyers argue that his continued confinement is illegal. They wrote in a challenge to the legality of his detention that because the Trump administration has been relying on a “purported” final order of removal for Abrego Garcia from 2019, the “presumptively reasonable period” of detention would’ve expired in 2020.

Andrew Rossman, a lawyer for Abrego Garcia, argued that his client has been in “continuous confinement” since March, when he was first arrested by immigration authorities and then deported to El Salvador, where he remained detained — with the exception of a brief weekend in August.

The “U.S. government held the keys” to Abrego Garcia’s confinement at a Salvadoran prison, he said.

Rossman said the administration is “0 for 3” in finding a country that will accept Abrego Garcia for removal to. Abrego Garcia’s lawyers also said they confirmed with him that if the U.S. moved to deport him to Costa Rica, he would go.

The Costa Rican government said in an August letter to the top U.S. diplomat in the country that it intends to provide refugee status or residency to Abrego Garcia, and would accept him “upon the conclusion of any criminal sentence he may serve in the United States of America.”

Rossman told the court that he doesn’t believe the Trump administration is “intending to remove [Abrego Garcia] in a lawful way.”

“They have spun the globe and picked various places,” he said, to effectively “fail on purpose” by selecting countries that would be “completely unpalatable” to Abrego Garcia and lead him to express reasonable fear of persecution or torture that then have to be adjudicated — during which he would remain detained.

“That shows the real aim of the government, the improper aim, is a punitive one, which is just to keep him incarcerated,” Rossman said.

Xinis questioned Ensign, the Justice Department lawyer, about whether the Trump administration has had any conversations with Abrego Garcia and his lawyers about potentially being removed to Costa Rica given his designation of the country as the place where he wanted to be removed.

“Why hasn’t there been?” she said of discussions.

Abrego Garcia had been living in Maryland for more than a decade with his wife and children when he was first taken into immigration custody in March and deported to El Salvador. But an immigration judge in 2019 had granted Abrego Garcia a withholding of removal, a legal status that prohibited the Department of Homeland Security from removing him to his home country because of likely persecution by local gangs.

Xinis ordered the Trump administration in April to facilitate Abrego Garcia’s return to the U.S., though the Department of Homeland Security resisted doing so for weeks. But in early June, Abrego Garcia was brought back to the U.S. after a federal grand jury indicted him on two counts of human smuggling.

He pleaded not guilty to both counts, and in July, a federal judge overseeing his criminal case ordered him to be released on bond while awaiting trial. But Abrego Garcia remained detained for several more weeks because of concerns that he would be swiftly taken into immigration custody following his release and deported.

He had been held at a detention center in Virginia but was transferred to a facility in Pennsylvania last month.

Earlier this month, an immigration judge in Maryland rejected a request from Abrego Garcia’s legal team to reopen his immigration case and allow him to seek asylum in the United States. While the bid was denied, Abrego Garcia can appeal the decision to the Board of Immigration Appeals.

Last week, a federal judge in Tennessee said he believes the Justice Department’s criminal case against Kilmar Abrego Garcia may have been “vindictive,” writing on Friday that “The government had a significant stake in retaliating against Abrego’s success.” The judge has not made a final ruling on those claims, and will allow for discovery and a hearing on Abrego Garcia’s claims.

There are 62,000 people in immigration custody, Schultz, the immigration official said.

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