A judge said the Trump administration’s bid to deport the Salvadoran man could be tripped up by 2019 “mistake.”
GREENBELT, Maryland — The Trump administration’s highest-profile deportation case appears to be on the verge of unraveling due to an oversight by an immigration judge six years ago.
Trump officials illegally deported Kilmar Abrego Garcia, an undocumented Salvadoran immigrant then living in Maryland who was sent in March to an anti-terrorism prison in his home country, before they reluctantly returned him to the U.S. under a court order. Before he returned, officials criminally charged him with immigrant smuggling. The legal saga has already made one trip to the Supreme Court.
But a court hearing Thursday indicated that Abrego’s immediate prospects for release from custody hinge on a key step Baltimore Immigration Judge David Jones apparently failed to take in October 2019 when he ruled Abrego could not be deported to El Salvador based on his claim he was likely to be persecuted if returned there.
In a detailed, 15-page order, Jones considered and credited Abrego’s assertion that he could be targeted in that country based on gang-related threats to his family’s pupusa business. The judge said it was too late for Abrego to get asylum, but granted him protection from being sent back to El Salvador. But Jones never explicitly ordered Abrego deported.
“There is no order of removal in the docket, in the record,” U.S. District Judge Paula Xinis said Thursday near the beginning of the four-hour hearing. “You can’t fake it ‘til you make it. You got to have it. … You have to have the order. It’s got to be an order memorialized somewhere and I don’t have it.”
The formal deportation order is potentially crucial to Abrego’s fate because immigration judges typically specify which country immigrants will be deported to. That is a key point of contention in Abrego’s current predicament. Trump administration officials are seeking to send him to Liberia — a country he has no ties to — and Abrego’s lawyers are urging that he be sent to Costa Rica or allowed to remain in the U.S.
But Jones’ ruling doesn’t say where Abrego was to be sent, or even that he had to leave the U.S.
“It’s critically important,” Abrego lawyer Andrew Rossman told Xinis. “It would be an obvious due process violation to remove someone without a final order of removal. … I think the entire structure the government has built crumbles if there is no final order of removal.”
Deputy Assistant Attorney General Drew Ensign dismissed the missing order as a technicality and said the notion that Abrego was being ordered deported was implicit in Jones’ finding that he could not be sent to El Salvador.
“I think this represents, necessarily, the final order of removal,” Ensign said.
“But [Jones] made a mistake and there is no order of removal,” Xinis interjected.
“I think that is requiring more formality than the law requires,” Ensign replied.
A ruling that Abrego was never formally ordered deported could allow him to make a new asylum claim or take other steps to remain in the U.S. that aren’t open to someone under a deportation order.
The hearing Thursday also focused on where Abrego could be sent if he is deported. After Abrego was returned to the U.S. earlier this year and put in criminal proceedings in Tennessee on charges he drove migrants from Texas to the East Coast as part of an immigrant smuggling ring, Abrego’s lawyers and the government neared an agreement that he would be deported to Costa Rica.
However, that deal fell apart over Abrego’s unwillingness to plead guilty in the criminal case.
The Trump administration now contends that Costa Rica is no longer a viable destination, proposing instead a series of African countries. Immigration officials’ current plan is to send Abrego to Liberia, a nation in West Africa founded in the 1800s by people formerly enslaved in the U.S.
Xinis repeatedly prodded lawyers for the government Thursday to reconsider the possibility of sending Abrego to Costa Rica and made clear she understood why he was resisting the African nations.
“He’s been to CECOT and back,” the judge observed, referring to the notorious anti-terrorism prison Abrego was held in after his deportation from the U.S. She added that Abrego has “no cultural ties, no ties whatsoever” to Liberia. “He will be completely removed from everything and everyone he knows.”
Xinis heard from one witness Thursday about the state of Abrego’s deportation proceedings: John Cantu, Immigration and Customs Enforcement’s acting assistant director for removal operations.
Cantu said a State Department attorney advised him that Costa Rica’s earlier willingness to take Abrego was “non-binding” and sending him there now would require “further negotiation and likely additional commitments by the United States.”
However, Cantu said he was unable to provide additional details about the issues with Costa Rica or the promises by Liberia because the sum total of his knowledge on those matters came from a five-minute video conference where State Department lawyer Carl Anderson read Cantu a prepared statement.
Cantu’s testimony irritated Xinis. She said she had no bone to pick with Cantu, but that his appearance continued a pattern of the administration failing to comply with her orders to produce witnesses knowledgeable about the efforts to find so-called third countries to take Abrego.
“This witness said nothing today,” the judge said later in the hearing. “Mr. Cantu knew nothing about anything. … Today was a zero, in my view.”
At least twice during the hearing, Xinis alluded to the fact that a request remains pending for contempt-of-court sanctions against the government for allegedly defying her orders earlier in the legal wrangling over what the courts concluded was his illegal deportation to El Salvador.
Abrego’s lawyers have argued that the administration’s current insistence on sending their client to Africa is an act of retaliation for embarrassment he caused President Donald Trump and other officials in that fight and his current unwillingness to plead guilty in the criminal case. Xinis didn’t go that far, but said she found it strange the government was unwilling to give her a detailed explanation of why Costa Rica appeared to be off the table.
“It’s so odd to me and that’s really being polite,” she said.
For now, Abrego remains in immigration detention in Pennsylvania and an order Xinis issued earlier in the case blocks his deportation. Even if she orders his release, he faces a trial beginning in January in Nashville in the criminal case.
Xinis warned both sides Thursday that it will take a while for her to rule and she made one more pitch to the administration to reach a deal with Abrego.
“It’s not going to be a quick decision,” Xinis warned. “If the government wants to moot it, it sounds like Mr. Abrego is still open to going to Costa Rica.”