GREENBELT, Maryland — A federal judge at a hearing Monday sought more information on the Trump administration’s plans for wrongly deported Kilmar Abrego Garcia, whose attorneys are pressing to have him transferred to Maryland from a Tennessee jail.
Abrego Garcia lived in Maryland with his wife and family before he was mistakenly deported to the notorious CECOT prison in El Salvador in March. While there, he said he was tortured, physically and psychologically, by Salvadoran officials, according to court records.
Now he is in custody in Tennessee, where he faces federal criminal charges related to human smuggling. He could be released as soon as July 16, and Maryland District Judge Paula Xinis questioned Department of Justice lawyers about their intentions for him upon his release.
Abrego Garcia’s attorneys expressed concern that once he is released, immigration officials would immediately detain the Maryland man and either quickly remove him to a third country or send him back to El Salvador by attempting to remove his earlier deportation protections.
“We do need protection from the government waking up tomorrow and upon Mr. Abrego Garcia’s release from criminal custody, (removing him) to somewhere they haven’t identified,” said Andrew J. Rossman, of Quinn Emmanuel, the firm representing Abrego Garcia in his immigration case in Maryland.
DOJ attorney Jonathan Guynn said removing Abrego Garcia to a third country is likely the path forward, but could not confirm or detail which country.
‘Jello to a wall’
Xinis set a Thursday afternoon hearing to obtain testimony from a witness who will be involved in making the decision about what will happen to Abrego Garcia.
“It’s like trying to nail jello to a wall to figure out what happens next week,” she said of Abrego Garcia’s potential release on July 16 ahead of his trial.
Xinis said until she’s clear about what steps the Trump administration will take next, she’ll hold off on issuing an order bringing Abrego Garcia back to Maryland.
During the Monday hearing, Xinis also denied the Trump administration’s two requests to dismiss the case.
DOJ lawyers argued that because Abrego Garcia was returned to the United States, the case is now moot. Xinis said the case is not moot because the “status quo” has not been fulfilled — although Abrego Garcia was returned to the U.S., he is not back in Maryland, but instead is in the custody of U.S. marshals in Tennessee.
Attorneys for Abrego Garcia made the same request last month, on an emergency basis to try to bring him back to Maryland while his criminal case continues, but Xinis denied that request as well.
At that time she referred to an answer from DOJ attorney Guynn, who said Abrego Garcia’s removal to a third country was not immediate, as part of her reasoning.
“He will be taken into (U.S. Immigration and Customs Enforcement) custody and removal proceedings will be initiated,” Guynn said June 26 of Abrego Garcia’s release. “There are no imminent plans to remove him to a third country.”
Rossman during Monday’s hearing also raised concerns that Abrego Garcia, yet again, would not receive proper due process if he is to be removed to a third country. He said Abrego Garcia must be notified where he will be sent and have time to appeal if he fears he will face harm in that country.
Xinis said while that will likely fall under an immigration judge, she does have the authority to have access to the information detailing how the Trump administration is going to remove Abrego Garcia.
Tennessee case
Abrego Garcia was returned to the U.S. from El Salvador last month to face federal criminal charges lodged in Tennessee that accuse him “of conspiracy to unlawfully transport illegal aliens for financial gain” and “unlawful transportation of illegal aliens for financial gain.”
The indictment by the Trump administration occurred while Abrego Garcia was in prison custody in El Salvador. Abrego Garcia has pleaded not guilty to the charges.
During Monday’s hearing, Xinis pressed Department of Justice attorney Bridget O’Hickey on whether the federal charges played a role in the return of Abrego Garcia to the U.S.
“He was not indicted with the purpose of bringing him back,” O’Hickey said. “He was indicted because he was under investigation.”
Xinis questioned the timing of the investigation, which began on April 21, when Abrego Garcia was in a Salvadoran prison and shortly after the Supreme Court ordered the Trump administration to facilitate his return.
O’Hickey could not give an answer on when the investigation into Abrego Garcia began, but she said that he was “under investigation prior.”
Xinis also questioned O’Hickey on the DOJ’s motion to dismiss the case entirely in May.
On May 27, the Department of Justice told Xinis that nothing could be done to return Abrego Garcia from El Salvador and therefore the case should be dismissed because of a lack of jurisdiction. But federal charges were filed on May 21.
“Why else would you file an indictment against someone you couldn’t produce?” Xinis asked O’Hickey.
O’Hickey said that negotiations with El Salvador were ongoing and that it was not clear that the indictment would mean Abrego Garcia would be released from El Salvador.
“I am aware that the proceedings were moving in tandem,” she said.
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