GREENBELT, MD — For the first time since he was unlawfully deported to El Salvador in March, Kilmar Abrego Garcia appeared in person this afternoon in front of U.S. District Judge Paula Xinis of Maryland. He is no longer detained by El Salvador, the Justice Department, or Immigration and Customs Enforcement. But as his lawyer pointed out he remains in a “literal double bind,” with a bracelet on one ankle from his criminal case in Tennessee and an ICE bracelet on the other ankle from his immigration case in Maryland.
Xinis is in a bind, too. Congress has largely taken jurisdiction over immigration cases away from federal courts. So after Xinis ordered Abrego Garcia’s release from ICE custody 11 days ago, the administration — in a Kafkaesque way — essentially restarted his immigration case. There is only so much Xinis can do in the narrow context of Abrego Garcia’s immigration case.
To underscore the point, Xinis was very careful not to overstep in court today — twice stating, “I’m not sticking my nose it” — as she delicately asked about the next steps in the parallel immigration case to get her bearings. Abrego Garcia’s attorneys are very mindful of the limits of Xinis’ authority, too, and didn’t force the issue.
Still, Xinis wasn’t willing to wash her hands of the case entirely. Her rationale was practical: Abrego Garcia was deported to El Salvador without lawful authority, and he was held in ICE custody without lawful authority. So she wants to see the government’s purported lawful authority for any future detention of him: Will it seek to detain Abrego Garcia again? Will it try to remove him to a third country? Will it finally allow him to be deported to Costa Rica, where he’s willing to go right now today?
The upshot of the hearing is that she will give the government until Friday to tell her its plans for him and the lawful basis for those plans. “If you’re going to take future action, then tell me what it is,” Xinis told the administration’s lawyers. “Just give it to me.”
Beyond Abrego Garcia’s own fate, this case remains a structural constitutional clash between the executive and judicial branches. The looming question is what consequences, if any, Xinis will impose on the administration for its conduct in defying her orders in the Abrego Garcia cases. We remain weeks or more likely months away from that reckoning.
Xinis was ticked off today about two new infractions by the government. In ICE’s own order releasing Abrego Garcia, his case officer indicated there was a final order of removal for Abrego Garcia, which is the opposite of what Xinis had ruled when ordering his release.
Who told the officer to do this? she asked. When the DOJ lawyers said the case officer was simply doing his best to release Abrego Garcia under the court’s tight deadline, Xinis wasn’t buying it, noting sarcastically that the high-profile case was just “hiding under a mushroom.”
“No one thought to give this order some consideration?” Xinis asked. “That’s a hard pill to swallow.”
She was even more incensed over a recent DOJ filing in the case that asserted she had issued her most recent temporary restraining order in the case ex parte, which in this context meant without notice to the government. The career DOJ lawyer in attendance agreed that the filing was incorrect.
“I’m growing beyond impatient with this happening. So you’ve admitted in open court it’s wrong,” Xinis admonished, adding, “I want to know who wrote that, and I want to know what all four lawyers who signed it were thinking.”
Xinis wasn’t done.
“Make sure it’s factually accurate because it’s getting to the point that we’re going to have a very long hearing in Abrego I,” Xinis said, in an apparent allusion to the contempt of court inquiry still pending in the original Abrego Garcia case, where the administration repeatedly flouted her orders, including the one to facilitate his return from El Salvador.
It was the only time today that the specter of contempt of court was explicitly raised.
