The Justice Department’s lawyers revealed in court on Monday that the government doesn’t just plan to whisk Kilmar Armando Abrego Garcia off to an as-yet-unidentified nation. It’s also exploring how to send him right back to El Salvador.
The Trump administration is considering taking the peculiar step of attempting to reverse an immigration judge’s 2019 order barring Immigration and Customs Enforcement from deporting Abrego Garcia to his home country of El Salvador over concerns that he would face torture there because of gangs.
After months of Trump officials vowing he’d never return to the United States — despite orders from a trial judge, an appellate panel and even the Supreme Court — the U.S. government brought Abrego Garcia back from the infamous CECOT detention center in El Salvador in June and charged him with “human smuggling.”
Now, the government is showing its insistence on making an example out of his case. Abrego Garcia has effectively become a symbol for Trump’s hardline immigration regime.
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Removing Abgrego Garcia from the United States again, whether to a third nation or El Salvador, would mark an escalation in the White House’s ongoing fight with the nation’s judiciary.
At every level, the courts have demanded that the government undo its admitted “administrative error” that sent the father to a notorious Salvadoran prison widely accused of torturing inmates. Abrego Garcia himself has submitted sworn testimony that he was beaten there and deprived of sleep.
He is facing criminal charges in Tennessee in a case that at least one legal commentator has deemed “post hoc sanitization efforts” to justify the White House’s actions.
And now that a Tennessee federal judge appears poised to release him pending trial, the government is trying to figure out a way to keep him away from home yet again.
This ping-pong game riled U.S. District Judge Paula Xinis in her Maryland courtroom on Monday. She called the government’s March decision to send Abrego Garcia to CECOT a “historic error” and “unlawful,” but she reserved additional rancor for DOJ lawyers who wouldn’t say exactly where ICE plans to send him now.
Xinis described the futile effort to get answers from government lawyers as “trying to nail Jell-O to a wall.”
“I don’t believe for a second that defendants don’t know what they’re going to do if he’s released on July 16,” Xinis said, threatening to call in a government witness “in the coming days.”
“The plan? You want me to tell you the plan with Mr. Abrego?” asked Jonathan Guynn, a recent DOJ hire who oversees litigation related to negligent or wrongful acts.
“I do,” the judge responded.
At that, Guynn delivered a speech about how “dangerous” the Trump administration considers Abrego Garcia. Xinis cut him off and told him to stop “stumping.”
“This is not someone who you would want in your community,” Guynn began.
“Mr. Guynn, that is not responsive,” Xinis responded, reminding the DOJ lawyer she was “directing” him to answer her questions.
Guynn then claimed that the Department of Homeland Security hasn’t decided whether to identify another country that will take Abrego Garcia or to take the remarkable step to try convincing an immigration judge that “conditions” have changed in El Salvador or that the previous “withholding of removal” order is somehow too old to honor.
Guynn wouldn’t even say which way the government is leaning.
“At this point, your Honor, it’s speculative,” he said.
“I don’t buy that for a second,” Xinis retorted. “You’ve had a multi-day hearing in Tennessee, You’ve had your witness testify to the investigation. ... This is not unobtainable for you.”
Guynn eventually conceded that the decision “will be made when he is taken into ICE custody.” Xinis shot him a look of astonishment.
“How can you do that? Don’t you have to have some basis to hold someone?” she asked.
Ernesto Molina, deputy director of the DOJ’s office of immigration litigation, chimed in to describe the situation as “fluid.”
The courtroom conversation quickly shifted into a rapid debate over the government’s secretive agreements with other countries (war-torn Libya, South Sudan and Ukraine were not mentioned but are on the shortlist), the DOJ’s claims that DHS can’t “begin to process somebody when they don’t have that person” (even though Abrego Garcia is currently in U.S. Marshals custody), and the DOJ’s stance that it can’t figure out a third nation without getting information from him (to which the judge noted, “They have like 10 lawyers. If you need information, you call up the lawyers.”).
With DOJ officials on the defensive for much of the hearing, the judge heard little from Abrego Garcia’s growing cadre of lawyers at the high-powered firm of Quinn Emanuel, which took on a case that has become a test of executive powers. But plaintiff lawyer Andrew J. Rossman did make clear that his team isn’t dropping its fight to return Abrego Garcia home just because he’s back on U.S. soil.
“That’s quite disturbing,” he said of the government’s plan in court. “We have the very real risk that in nine days we could be faced with the same circumstances that got us here in the first place.”
Rossman demanded that Abrego Garcia receive a legal notice identifying the place where the Trump administration wants to exile him to, a warrant for his arrest and detention “and an opportunity to be heard in front of a neutral, independent judicial officer.”
The judge also delivered a searing reality check to the newest member of the DOJ team handling this case: Bridget O’Hickey, a recent transplant from the Florida attorney general’s office who tried to minimize concerns by referring to this case as “an isolated mistake.”
“For three months, your clients told the world they weren’t going to do anything to bring him back. Doesn’t that matter?” Xinis asked. “Am I really supposed to ignore all that?”
“I think that this situation is unique,” O’Hickey said. “The government doesn’t have a policy of committing administrative errors.”
“You do realize,” Xinis began, “I have been told that there was no error.”
During the nearly three-hour hearing, Judge Xinis shot down the government’s many attempts to dismiss the case that initially sought his return and swung the ship around in the other direction: She scheduled an evidentiary hearing on Thursday where the Trump administration must provide a government official who will testify under oath about what they plan to do to Abrego Garcia.
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