GREENBELT, Md. (CN) - A federal judge grilled the Justice Department on Monday over its apparent lack of plans beyond a lengthy detention for Kilmar Abrego Garcia, ordering witness testimony on Friday to nail down details related to his potential deportation to Eswatini.
U.S. District Judge Paula Xinis slammed the government attorneys for having no information available for Monday's hearing beyond an argument that Abrego Garcia should remained detained until his bid for asylum is ultimately decided by the Board of Immigration Appeals.
The Barack Obama appointee ordered the Justice Department to turn over documents related to any efforts taken to remove Abrego Garcia to any third country, what steps have been taken since he filed his habeas petition in August and anything relevant to the likelihood that he will be deported to Eswatini in the near future.
After walking back a plan to send him to Uganda, the Trump administration indicated it plans to eventually deport Abrego Garcia to the small African nation Eswatini - one of 21 nations where he has expressed fear of persecution.
Yet during Monday's hearing, Simon Sandoval-Moshenberg, of Murray Osorio and representing Abrego Garcia, told Xinis that he had received no evidence from the Justice Department that any removal steps have been taken beyond an email he received designating Eswatini as a destination. He added that Abrego Garcia was only made aware of the designation through his attorneys.
That lack of evidence includes any communications with Eswatini's government or assurances it has provided regarding its potential treatment of Abrego Garcia.
Abrego Garcia's attorneys have warned that the Trump administration chose Uganda and Eswatini specifically because neither country has provided assurances that their client will not be repatriated back to El Salvador, where they say he was tortured in the infamous CECOT megaprison.
Sandoval-Moshenberg noted Costa Rica is no longer on Abrego Garcia's list of countries he fears persecution from and that the government has no reason to continue detaining him.
"If the government wished to remove petitioner, it could do so immediately to Costa Rica," Sandoval-Moshenberg wrote in a recent filing. "Yet without any legitimate explanation, the government has disregarded petitioner's lawful designation of Costa Rica - a country that has provided explicit assurances that it will accept petitioner and prevent his redeportation to El Salvador."
Sandoval-Moshenberg repeatedly cited the 2001 Supreme Court decision in Zadvydas v. Davis, where the high court ruled that the Immigration and Nationality Act created an "implicit time limitation" for immigration detention and does not permit "indefinite detention."
Specifically, the 5-4 majority held that if a final removal order is entered in an immigrant's case and they are not removed during the 90-day removal period, that immigrant can only be held for a period "reasonably necessary to bring about that alien's removal from the United States."
Xinis suggested that the case will factor heavily into Friday's evidentiary hearing and urged the Justice Department to provide a witness who can speak to any efforts the government's made to remove Abrego Garcia to Eswatini.
She specifically told lead DOJ attorney Bridget O'Hickey to provide someone with direct knowledge of Abrego Garcia's case, rather than an unrelated ICE official with no knowledge outside of public reporting and the agency's general practices, as happened this summer with Thomas Giles, assistant director for Enforcement and Removal Operations.
Monday's hearing comes as the federal judge overseeing Abrego Garcia's criminal case in Tennessee found the Trump administration's prosecution against the Maryland man was likely in retaliation for his return from El Salvador.
U.S. District Judge Waverly Crenshaw ruled Friday that the Trump administration's prosecution of Abrego Garcia was likely vindictive.
The Obama appointee highlighted the criminal case's timeline, which officially started with a traffic stop on Nov. 30, 2022, prompting an investigation that the Department of Homeland Security determined was unworthy of criminal charges on March 12, 2025 - just three days before the Abrego Garcia was deported to El Salvador.
Following his removal, Abrego Garcia sued on March 24, then obtained appellate decisions in his favor from the Fourth Circuit and Supreme Court on April 7 and April 10, respectively. Soon after, DHS reopened its investigation into Abrego Garcia's 2022 stop, obtaining an indictment in Tennessee on May 21.
The Trump administration's quick turnaround "suggests that Abrego's prosecution may stem from retaliation by the DOJ and DHS due to Abrego's successful challenge of his unlawful deportation," Crenshaw wrote, noting there were only 58 days between Abrego Garcia filing suit and his indictment in Tennessee.
The Justice Department has argued that Abrego Garcia can only obtain relief from an immigration judge, a familiar argument from government officials, who have repeatedly sought to avoid judicial review in lawsuits against the Trump administration.
An immigration judge in Baltimore rejected Abrego Garcia's request for asylum on Thursday, denying a request to reopen his 2019 asylum case. Abrego Garcia can appeal the decision to the Board of Immigration Appeals within a month.
Source: Courthouse News Service
