Kilmar Abrego Garcia Tries to Sway the Referees

The Trump administration on Monday urged a federal judge to dismiss any ongoing legal efforts by Kilmar Abrego Garcia as he seeks to contest his deportation.

In a 29-page document titled “Defendants’ Return to the Petition for Writ of Habeas Corpus,” the U.S. Department of Justice contended that Abrego Garcia should proceed solely through a specific protocol before an immigration judge.

Immigration judges differ from ordinary – or Article III – federal judges. They are statutory entities under the Immigration and Nationality Act (INA), acting more as federal officers. Article III judges receive presidential appointments, while immigration judges are employees of the Executive Office for Immigration Review (EOIR), part of the DOJ.

And, the Trump administration says, the INA and its framework limit what Abrego Garcia is entitled to receive at this point.

The case involving the Maryland man has become a notable subplot during the second Trump administration. Abrego Garcia was deported on a rapid deportation flight to a notorious torture prison in El Salvador, contravening multiple court orders – both his specific case and general orders concerning the flight.

A DOJ lawyer was dismissed after acknowledging the Trump administration’s errors. Following a legal tug-of-war that reached the U.S. Supreme Court and various district courts, Abrego Garcia returned to the United States, faced unrelated criminal charges, was freed on bail, and was again detained by Immigration and Customs Enforcement (ICE) late last month.

The latest chapters in the saga include a judicially-frustrated attempt to deport the father of three to Uganda – as the government remains insistent on its goals for widespread deportation of immigrants to third countries which are neither the U.S. nor the countries they hail from. Now, the latest proposed destination for Abrego Garcia is Eswatini, the African country formerly known as Swaziland.

After being taken back into custody, Abrego Garcia’s attorneys initiated a case in Maryland federal court – drawing the random assignment of U.S. District Judge Paula Xinis, the Barack Obama appointee who oversaw his lawsuit to be returned to the country.

This time, the posture of Abrego Garcia’s case is a petition for writ of habeas corpus – essentially an argument he is being illegally detained.

But, the DOJ says, federal law precludes such a challenge.

The heart of the matter, as the government sees it, is that Abrego Garcia is subject to a final order of removal, or deportation. Both statute and precedent preclude using habeas petitions as avenues for redress when final deportation orders are in effect, the motion argues.

To hear the DOJ tell it, the REAL ID Act of 2005 was an effort by Congress to “expressly eliminate habeas review over all final orders of removal.” Similarly, a 4th U.S. Circuit Court of Appeals case from 2011 interpreted the act’s change to immigration law to mean “Congress specifically prohibited the use of habeas corpus petitions as a way of obtaining review of questions arising in removal proceedings.”

“Petitioner’s claims are both procedurally barred and meritless—even unserious,” the motion reads. “[T]he INA does not permit—and indeed affirmatively bars—this collateral challenge to removal and detention. This Court should therefore permit those administrative procedures to play out while respecting Congress’s prohibition on interference in those procedures by federal district courts.”

The Trump administration also says Abrego Garcia is simply filing his habeas petition too early because “the Supreme Court permits detention pending removal for a presumptively reasonable period of six months before any additional procedures are potentially triggered.” In other words, the government says they can keep him in detention until the end of February 2025 before making a final decision about where he will be deported.

And as for that ultimate, non-El Salvador location, the government insists it is willing to work with Abrego Garcia, but complains that he is not acting in good faith with deportation officials.

From the motion, at length:

Petitioner’s actions also betray a level of gamesmanship to remain in the United States that this Court should not indulge. For example, while Petitioner claims that Costa Rica is his preferred country of removal, he simultaneously is expressing a “fear of persecution and torture” if removed to “Costa Rica.” Petitioner is thus claiming that his preferred destination country is somehow likely to persecute or torture him if he were sent there—a claim that, if he actually believed it, would presumably motivate him to choose a different destination. Indeed, Petitioner has already expressed putative fear of persecution or torture from more than twenty nations and has made clear that he may assert such fears for any country that he does not prefer—and indeed has even done so for the country that he putatively does prefer.

In sum, Abrego Garcia has expressed asylum law-based fears for 23 different countries offered by U.S. officials in a statutory, step-by-step process. Under this process, the would-be deportee is first allowed to suggest the country they might be removed to. However, if they don’t offer a suggestion, the government makes such a suggestion. That process has played out repeatedly in the present case, according to the DOJ.

Now, the government wants Xinis to shut Abrego Garcia down so he can finally be deported in accordance with a years-old order.

“Ultimately, this suit impermissibly seeks to delay the too-long-delayed execution of Petitioner’s 2019 final order of removal,” the motion goes on. “This Court should deny the Petition.”