A federal judge said on Monday that she was inclined to release Kilmar Armando Abrego Garcia, the Maryland man now being held in U.S. immigration custody after wrongfully being removed to El Salvador, if the federal government cannot quickly produce evidence it has plans to deport him soon.
At a hearing in Greenbelt, Md., Judge Paula Xinis of the U.S. District Court for Maryland expressed exasperation at Justice Department lawyers’ failure to answer “basic questions” that could determine Mr. Abrego Garcia’s fate. She questioned whether the government was using a “trick bag” to detain him indefinitely by claiming he needed to remain in immigration custody because of an imminent deportation when in fact it had not solidified any such plans.
Judge Xinis said she was likely to give the government until Wednesday to respond. She granted government lawyers a 30-minute recess during the hearing to excavate proof, such as communications with foreign governments like requests for travel documents and coordination on potentially handing over Mr. Abrego Garcia. But all they had, the judge noted, were emails that Mr. Abrego Garcia’s lawyers received from the government notifying them that he would be deported to Eswatini, a small country in southern Africa formerly known as Swaziland.
When one of the government lawyers, Ernesto H. Molina, said he was not aware of more evidence but refused to concede that the government was not actively preparing Mr. Abrego Garcia’s deportation, Judge Xinis fired back.
“That’s just not a tenable position — either you have done it or you haven’t,” the judge said, referring to preparations for Mr. Abrego Garcia’s deportation. “I have asked you a direct question and you don’t have it. Then the answer is no. That’s how the court works.”
She added: “It is a real topsy-turvy, inside-out day.”
The hearing was just the latest twist in the topsy-turvy case of Mr. Abrego Garcia, who was living illegally in the United States but was protected from deportation to his native El Salvador under a 2019 immigration court ruling when the Trump administration deported him there anyway in what it admitted was an “administrative error.” He spent months in prisons there before returning to the United States in June, weeks after the Supreme Court ordered Trump officials to facilitate his return.
Soon after his return, the administration brought criminal charges against him, claiming that Mr. Abrego Garcia had smuggled undocumented immigrants across the United States, an accusation that a federal judge in Nashville found likely to have stemmed from a vindictive prosecution.
After two judges ruled against Mr. Abrego Garcia’s continued detention for his criminal charges, the Trump administration had to release him in August, only to detain him again under Immigration and Customs Enforcement custody a few days later, initially claiming that it would deport him to Uganda.
But on Monday, the government said that “the only country that’s on the table” was Eswatini, a country that had not guaranteed that it would not repatriate Mr. Abrego Garcia back to El Salvador, where he feared he would face threats to his life.
For weeks, Mr. Abrego Garcia has expressed interested in being deported to Costa Rica, a country that has promised legal residence and guaranteed that he would not be sent to El Salvador.
On Monday, Simon Y. Sandoval-Moshenberg, one of the lawyers for Mr. Abrego Garcia, expressed bewilderment at what he saw as the government’s lack of response to his client’s willingness to go to Costa Rica.
Why is the government trying to send Mr. Abrego Garcia “across the Atlantic Ocean” when it can “send him this afternoon to Costa Rica?” he asked the judge.
Judge Xinis then tossed the question to Mr. Molina.
“How about Costa Rica?” she said.
Mr. Molina said he needed more time to respond.
Minho Kim covers breaking news and climate change for The Times. He is based in Washington.
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