DOJ: We Can't Send Abrego To Costa Rica. Costa Rica: ¡Falso!
False
declarations in court? What DOJ lawyer will they find to do that????
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On Thursday, Judge Paula Xinis held a hearing on Kilmar Abrego Garcia’s
habeas corpus petition. The occasion was a reunion of sorts, heralding the
return of Assistant US Attorney Drew Ensign, the DOJ’s go-to guy when someone’s
gotta look a federal judge in the eye and make a preposterous and/or dubiously truthful claim on the record. It
was also the culmination of a tragicomic series of errors by the Trump
administration in its dogged effort to dump immigrants into third-countries
they have nothing to do with.
Declaration of hostilities
On March 14, the administration invoked the Alien Enemies Act,
defining the gang Tren de Aragua as shock troops invading the country on behalf
of the Venezuelan government — reality be damned! By the time the document was
released the next day, hundreds of men, including Abrego, were being boarded
onto planes in Texas headed for CECOT prison in El Salvador.
In an emergency hearing, Judge James Boasberg ordered the government to
turn the planes around and give the men an opportunity to challenge their
deportations in court. But Ensign purported not to know whether or when the
flights would be taking off. In fact they left during a recess Judge Boasberg
called to allow Ensign to convey the order to DHS. This apparent lie led to
a whistleblower report by former DOJ lawyer Erez
Reuveni, as well as pending contempt proceedings.
Reuveni was later fired for admitting to Judge
Xinis that Abrego had been mistakenly deported to the one country on earth
where the government could not send him. Abrego, a Salvadoran man who fled to
America in 2011, had an order barring his repatriation
to his native country due to danger from the Barrio 18 gang. But if the
government confessed the error and brought him back, it would have effectively
conceded that the CECOT deportees were under de facto US government control, and thus subject to the jurisdiction
of US courts. And so the administration loudly insisted that they had deliberately deported Abrego for being a dangerous gang member.
Karoline Leavitt keeps saying Kilmar Abrego Garcia
"was engaged in human trafficking" while calling him a "foreign
terrorist" and a "MS-13 gang member" to justify why he shouldn't
be returned despite court orders. The administration hasn't argued anywhere in
court docs that he's a human trafficker.
Tue, 15 Apr 2025 17:54:48 GMT
This charade went on for two more months until June 6, when the Justice
Department announced that it was bringing Abrego back to charge him with human smuggling.
To all appearances, it retconned a criminal case based on
a 2022 traffic stop in Tennessee, based largely on testimony of co-conspirators
facing deportation themselves. For one thing, the case revolves around a scheme
that would have involved Abrego driving upwards of 100 hours a week back and
forth between Texas and Maryland while holding down a full time job.
When the judge in Tennessee released Abrego from criminal custody in
August pending trial, he was promptly picked up by DHS and threatened with
immediate deportation. In correspondence with Abrego’s lawyers, the
government promised to deport him to Costa
Rica if he would accept a plea deal. That country was willing to take him and
offered diplomatic assurances that he could live freely there without fear of
being refouled to El Salvador. But on the eve of Abrego’s release, those
negotiations broke down, and DHS revoked its offer to send him to Costa Rica.
Since then, it has said it intends to send him to at least four African
nations: Uganda, Eswatini, Ghana, and now Liberia, a country with a decidedly
mixed human rights record. And so Ensign is now back in front of Judge Xinis
fighting Abrego’s second habeas petition, and defending the
government’s decision to send him to Africa as apparent punishment for refusing
to plead guilty.
Defending the indefensible
Abrego’s new claim rests on a 2001 case called Zadvydas v. Davis in which the Supreme
Court held that the government cannot detain non-citizens indefinitely when
there is no immediate possibility of deporting them. After 90 days of
detention, the government is obliged to release non-deportable immigrants.
Abrego maintains that he was detained by the US government in CECOT for months,
and thus the period of lawful detention has expired. He also points to 8 U.S.C.
§1231(b)(2), which appears to instruct the attorney general to deport an
immigrant to the country of his choosing — in this case, Costa Rica.
In August, Judge Xinis issued an interim order barring
the government from stuffing Abrego into a plane and dropping him in a
continent he’s never seen and where he he has no cultural or family ties. Since
then, she’s struggled to get the DOJ to explain why DHS won’t just let Abrego
go to Costa Rica.
“Importantly, it is now the assessment of the Department of State that
the Government of Costa Rica would not accept Petitioner at this time without
further negotiations and, likely, additional commitments from the United
States,” the DOJ argued on November 7.
“Importantly, the Department of State advises that the Republic of Liberia is
the only state willing to accept Petitioner without further negotiations or
additional commitments by the United States.
In support of this “assessment,” the government submitted a sealed
declaration by John Cantú, the acting Assistant Director for ICE’s Removal
Division, attesting that Costa Rica’s offer was actually off the table. Not
content to take his word for it, though, Judge Xinis court ordered the government to produce
Cantú to testify on Thursday.
In the past, the DOJ has offered up a parade of witnesses with no
personal knowledge of the relevant issues, simply parroting the
administration’s preferred position. And so astute observers might have noted
the reappearance of Drew Ensign as a sign that some shit was about to go down.
On the stand, Cantú admitted under cross examination by
Abrego’s lawyer Andrew Rossman that he had no firsthand knowledge of the
supposed reversal by Costa Rica. His entire declaration was double hearsay,
based on a five minute call with an attorney named “Anderson” at the State
Department.
Judge: how do you know that C: counsel J: DOS counsel?
C: now counsel [here at counsel table] R: you spoke to Mr Anderson around 11/6?
C: i think 11/7 R: in person? C: no a Teams meeting R: how long C: 5 minutes R:
did you ask any quesitons? C: no R: he just told you things C: correct /22
Indeed, Cantú didn’t even understand some of the
language in the declaration dictated by State Department counsel for him to
sign.
A senior ICE official just admitted in an evidentiary
hearing in Kilmar Abrego Garcia’s case that someone else drafted his
declaration in the case and he didn’t know what certain words meant.
“This witness said nothing today,” a Judge Xinis snorted. “Mr. Cantú knew nothing about
anything. … Today was a zero, in my view.”
For his part, Ensign merely simpered that Secretary
Rubio “has determined that it would be prejudicial to the interests of the
United States” to send Abrego to Costa Rica, and that decision is beyond
judicial review.
Cutting Costa Rica
If Thursday was a zero, Saturday was a 100. The Washington Post published a statement by
Costa Rica’s Security Minister Mario Zamora Cordero attesting that there’s been
no change in his state’s posture toward Abrego.
“That position that we have expressed in the past
remains valid and unchanged to this day,” he said, adding that “Costa Rica’s
offer to receive Mr. Abrego Garcia for humanitarian reasons stands.”
That would strongly suggest that whoever told Cantú that Costa Rica had backed out was deliberately lying to
the court. Abrego’s lawyers immediately submitted the article in the habeas case as proof that Judge Xinis
should not allow him to be deported to Liberia, and in the criminal case as further evidence to
support his motion to dismiss for selective and vindictive prosecution.
“Mr. Abrego is willing to facilitate that removal and
self-deport to Costa Rica, and that country is willing to accept him—but the
only reason the government will not send him there is because that is where Mr.
Abrego is willing to go,” they urged. “That is plain evidence that the
government wants to do nothing more than punish Mr. Abrego for exposing its
unlawful conduct.”
Meanwhile, another defect in the government’s records
threatens to completely upend the habeas case.
No papers
As the DOJ scrambled to get out from under Judge Xinis’s thumb, they’ve
thrown a lot of legal spaghetti at the wall. One such strand is an argument
that Abrego’s case belongs in federal court in Massachusetts, where Judge Brian
Murphy is adjudicating D.V.D. v. DHS, a class action for immigrants with final orders of removal being
deported to third countries. But, as Abrego’s lawyers point out, there is no
“final order of removal” for him in the record.
That’s likely an administrative error by Immigration Judge David Jones,
who took the trouble in 2019 to pen 14 pages explaining why he was
withholding removal to El Salvador, but failed to sign the actual order of
removal itself. This is somewhat awkward as DHS now insists that it has the
absolute right to deport Abrego to Liberia post haste, pursuant to a removal
order which appears not to exist.
Ensign, who never shrinks from a courtroom stretcher,
characterized the omission as a mere technicality that can be assumed away by
“order of operation.” He insisted that Costa Rica’s willingness — or not! — to
accept Abrego is confirmation that a final removal order is somehow implied.
Politico reports that the court
was not amused.
“You can’t fake it ‘til you make it. You got to have
it,” Judge Xinis scoffed. “You have to have the order. It’s got to be an order
memorialized somewhere and I don’t have it.”
And so the Abrego cases plod along, a slow parade of
thuggish buffoonery. After kidnapping him to CECOT and claiming that he would
never set foot in the US again, the government snatched him back and crowed
that this dangerous criminal would face justice in an American courtroom.
Instead they’re racing to hustle him off to some remote locale so as to avoid
having to present their creaky case to a jury on January 27. Sure, they could
send him to Costa Rica tomorrow. But they’re pissed at him for refusing to play
ball, so …
