A judge sorting through the legal morass around the Trump administration’s highest-profile deportation case expressed dismay Monday at continued errors by federal officials involved in the matter.
During a hearing in federal court in Maryland, U.S. District Judge Paula Xinis zeroed in on the foul-ups as she extended an order barring immigration authorities from re-arresting Kilmar Abrego Garcia into next month.
“This is an extremely irregular and extraordinary situation,” said Xinis, an Obama appointee.
The hourlong hearing was the first time Abrego appeared before Xinis in person during nine months of litigation that followed the Trump administration’s illegal deportation of him in March from Maryland to his home country of El Salvador, where he was put in a prison notorious for its harsh conditions. After a legal battle that went to the Supreme Court, the administration reluctantly brought Abrego back to the U.S. in June, but hit him with criminal immigrant-smuggling charges now set for trial next month in Tennessee.
Abrego, wearing a light gray flannel shirt and dark slacks, seemed to be relaxed and in good spirits as he sat at the plaintiff’s table Monday. He was flanked by more than half a dozen attorneys, prompting Xinis to quip: “You almost have a baseball team representing you.”
Ernesto Molina — who faced the brunt of Xinis’ criticism in the courtroom — was the sole Justice Department attorney present, although he told the judge several colleagues involved in the case were listening by phone.
Xinis noted that after she ordered Abrego’s release from immigration detention about two weeks ago, he was given a document saying his release was conditional because he was subject to a final order of removal from the U.S. However, Justice Department attorneys are now arguing that the order isn’t final and Abrego will have another chance to ask an immigration judge to release him on bond.
“You elected this form. I’m taking you at your word,” the judge said.
“I imagine it is possible … that order was improvident,” Molina said, acknowledging that language in the notice “could cause the court confusion.”
“It may have been done in a manner that was not farsighted and did not have the information it needed,” Molina added. “The officer did the best he or she could at the time. Events did overtake that.”
Xinis also sounded surprised that officials were offering Abrego an immigration court bond hearing, even though the administration has argued in hundreds of court cases in recent months that immigrants who enter the U.S. illegally — as Abrego acknowledged he did in 2011 — aren’t entitled to one.
Molina said the offer of the bond hearing made Abrego’s federal court petition moot. “The habeas case has really run its course,” he argued.
But the judge said the administration’s track record made her reluctant to simply step aside and let the immigration court process play out.
“That’s a very hard pill to swallow,” she said. “Now, you’re saying, ‘No, Trust us. This one, this order, is going to be correct….’ Why should I give the [government] the benefit of the doubt in this case?”
Xinis also delivered a sharp tongue-lashing to administration lawyers for claiming in a recent court filing that her Dec. 12 order barring re-detention of Abrego was issued “ex parte,” or without any advance notice to the government. In fact, Justice Department attorneys received the emergency temporary restraining order request when Abrego’s lawyers filed it just after midnight that day.
“Everybody signed it and it’s flat wrong,” the judge complained of the government’s submission. “I’m growing beyond impatient with this happening. I want to know who wrote that and I want to know why all the four lawyers who were signatories to that thought it was a good idea.”
“You had all night to tell me why the petitioner was wrong,” she continued. “This was an emergency of your making.”
Molina conceded that the claim was inaccurate and said he’d comply with the judge’s request for a written explanation of the error.
As the hearing concluded, the judge gave the government until Friday to submit the precise legal basis for any continued effort to detain Abrego for immigration purposes. She also set another deadline in January for a report on the immigration proceedings, all but guaranteeing that Abrego will remain free through the holidays.
Accompanied by his wife, Abrego emerged from the courthouse to dozens of supporters applauding him and chanting, “Sí, se puede!”
Abrego did not speak to reporters, but his attorneys emphasized in and out of court that their client remains willing to go to Costa Rica if the administration will drop the criminal case pending against him.
“If he was allowed to sort of choose his path, he would have been in Costa Rica months ago,” Abrego lawyer Simon Sandoval-Moshenberg told reporters after the hearing. “We don’t consider it justice that he’d be in Costa Rica. Justice would be that he remained here in Maryland … but an acceptable resolution at this point is the resolution that he’s fighting for, which is the ability to take the Costa Rican government up on their offer of refugee status.”
“It’s actually the federal government that’s keeping him here in the United States right now,” the attorney said.
