Abrego Garcia’s ‘Literal Double Bind’
GREENBELT, MD — For the first time since he was illegally deported to El Salvador in March, Kilmar Abrego Garcia appeared in person this afternoon before U.S. District Judge Paula Xinis of Maryland. He is no longer in the custody of 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 also in a bind. Congress has largely stripped federal courts of jurisdiction over immigration cases. So after Xinis ordered the release of Abrego Garcia from ICE detention 11 days ago, the administration — in a Kafkaesque manner — essentially restarted his immigration case. There’s not much Xinis can do in the narrow context of Abrego Garcia’s immigration case.
To emphasize the point, Xinis was very careful not to go overboard in court today – twice declaring, “I’m not putting my nose into it” – as he delicately asked questions about the next steps in the parallel immigration case to get his bearings. Abrego Garcia’s lawyers are also very aware of the limits of Xinis’ authority and have not forced matters.
Still, Xinis wasn’t ready to completely wash her hands of the matter. His reasoning was practical: Abrego Garcia was deported to El Salvador without legal authorization, and he was detained by ICE without legal authorization. So she wants to see the government’s supposed legal authority for any future detention of him: Will it seek to arrest Abrego Garcia again? Will she try to deport him to a third country? Will this finally allow him to be deported to Costa Rica, where he is ready to go today?
The result of the hearing is that it will give the government until Friday to inform it of its plans for it and the legal basis for these plans. “If you plan to take any action in the future, tell me what it is,” Xinis told administration lawyers. “Give it to me.”
Beyond the fate of Abrego Garcia, this case remains a structural constitutional conflict between the executive and judicial powers. The question that arises is what consequences, if any, Xinis will impose on the administration for its conduct in defying its orders in the Abrego Garcia cases. We have weeks, even months, before this assessment.
Xinis came under fire today over two new government infractions. In ICE’s own order releasing Abrego Garcia, its case officer indicated that there was a final order of deportation for Abrego Garcia, which is the opposite of what Xinis had ruled in ordering his release.
Who told the policeman to do this? she asked. When Justice Department lawyers said the case officer was simply doing his best to free Abrego Garcia within the tight deadline set by the court, Xinis disbelieved it, sarcastically pointing out that the high-profile case was simply “hidden under a mushroom cloud.”
“No one thought to take this order into consideration?” » » asked Xinis. “It’s a tough pill to swallow.”
She was even more furious following a recent DOJ filing in the case that claimed she had issued her final temporary restraining order in the case. ex partewhich in this context meant without notice to the government. The career Justice Department lawyer present agreed that the filing was incorrect.
“I’m getting more and more impatient with this. So you admitted in open court that it was wrong,” Xinis chastised, adding: “I want to know who wrote this, and I want to know what the four lawyers who signed it were thinking.”
Xinis was not finished.
“Make sure the facts are correct, because we’re getting to the point where we’re going to have a very long hearing in the Abrego I case,” Xinis said, in an apparent allusion to the contempt of court investigation still underway in the original Abrego Garcia case, where the administration repeatedly flouted his orders, including one to facilitate his return from El Salvador.
This is the only time today where the specter of contempt of court has been explicitly raised.
