DOJ and lawyers for Kilmar Abrego Garcia set to meet in court again

Greenbelt, Maryland — Lawyers for the Trump administration are poised to face questions in federal court Friday about the administration's 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.

On Monday, U.S. District Judge Paula Xinis ordered the Justice Department to provide a witness for Friday's hearing with first-hand knowledge of the Trump administration's plans to remove Abrego Garcia to Eswatini, the small African nation formerly known as Swaziland, as it attempts to yet again deport him while his criminal case on charges of human smuggling plays out in Tennessee. 

But hours ahead of the hearing, it remains unclear who from the Trump administration would testify to provide clarity on what it intends to do next with Abrego Garcia, after its attorneys could not provide details in a hearing earlier this week. 

Instead, Justice Department attorneys told Xinis that the ongoing government shutdown has impacted their ability to provide details on when Abrego Garcia would be deported to Eswatini. But Xinis denied a motion by the Justice Department to pause the case until Congress approves government funding. 

The judge told Justice Department attorneys that she is "not sure what the heartburn is" in providing details to her about removing Abrego Garcia. "You had to have known we were going to talk about this," she added. 

Xinis said she wants 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.

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.

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.