Federal judge grills ICE official over lack of plans for Kilmar Abrego Garcia

GREENBELT, Md. (CN) — A top Immigration and Customs Enforcement official struggled to assure a federal judge Thursday that Kilmar Abrego Garcia would be granted an opportunity to challenge his potential removal to a third country upon his release from criminal custody in Tennessee.

Thomas Giles, assistant director for ICE’s Enforcement and Removal Operations, testified that according to new Department of Homeland Security policies, Abrego Garcia could be sent to two nations that have assured the Trump administrations immigrants deported there would not face persecution or torture: Mexico or South Sudan.

U.S. District Judge Paula Xinis appeared shocked that Giles could not provide a clear answer whether Abrego Garcia would be given the opportunity to challenge such a removal, even if he had a pending trial date in his new criminal case in Tennessee.

She noted that the March 30 memo explicitly states that, so long as the State Department finds a nation’s assurances are credible, immigrants facing third-country deportations could be removed “without the need for further procedures.”

Giles admitted that ICE would take any court date into account, but maintained that his case would be “treated like any other,” which Justice Department attorney Sarmad Khojasteh later characterized as there being “no politics in this case.”

Xinis ordered the Justice Department provide a witness following a contentious hearing on Monday — where the Barack Obama appointee said getting answers from the administration was like “nailing Jello to a wall” — to explain what was in store for Abrego Garcia.

He currently faces federal human trafficking charges — levied upon his return from CECOT in El Salvador — and could be released or handed over to ICE custody following a July 16 hearing before U.S. District Judge Waverly Crenshaw Jr. in the Middle District of Tennessee.

Following four hours of testimony, Xinis ordered the parties to reconvene Friday morning to argue a potential temporary restraining order that would, if Crenshaw ordered Abrego Garcia’s release, ensure he remains in ICE custody in Tennessee for 48 hours.

Giles testified that any such decision on which country would be ultimately chosen was up to the ICE field office in charge of Abrego Garcia’s case, which would be the New Orleans Field Office, and would be solely based on available bed space at ICE detention facilities.

Sascha Rand, of Quinn Emanuel and representing Abrego Garcia, asked Giles about a second document he said he had relied on in preparation for his testimony after being selected by ICE officials to appear on Tuesday.

According to Giles, he and his colleagues received an email on Wednesday further explaining the process for removals to third countries set forth in the March 30 DHS memo.

Rand asked Giles whether immigrants set to be deported to an approved third country like Mexico or South Sudan would have the ability to express fear of persecution in either country, including further incarceration.

Giles testified that an immigrant has the opportunity to express fear at any point between receiving written notice of their removal and the time their deportation flight takes off. Their case will then be transferred to the U.S. Citizenship and Immigration Service for an interviewing to determine if their fear is credible.

Xinis noted that Abrego Garcia had already gone through a similar process in 2019, where an immigration judge withheld a final order of removal to El Salvador due to a credible fear of prosecution, which was ultimately violated when he was summarily deported to CECOT.

She asked whether Abrego Garcia would have a similar opportunity to challenge a removal order to another third country.

“He has a final removal order, he’s gotten his due process,” Giles said, before asserting he was speaking generally about immigrants with final orders of removal.

Prior to Thursday’s hearing, the Justice Department filed a stipulation indicating the government would not remove Abrego Garcia without first reopening his immigration proceedings. If he were to be removed to a third country, it would follow the procedures set in DHS v. D.V.D. that led to the removal of several non-Sudanese immigrants to South Sudan.

Thursday’s hearing comes amid growing evidence that the Trump administration has intentionally misled the public and federal judges regarding its ability to return the 261 men deported to CECOT with Abrego Garcia.

In Washington, attorneys representing a class of the deportees revealed in a court filing on Monday that the Salvadoran government told the United Nations that the U.S., not El Salvador, had custody over the 261 men still held there.

According to the filing, El Salvador responded to an inquiry by the UN’s Working Group on Enforced of Involuntary Disappearances by asserting that the “jurisdiction and legal responsibility” for the men lie exclusively with the U.S. government.

The government added it cannot be held responsible for the “failure to observe the principle of non-refoulement,” which prohibits nations from returning individuals to a country where they’d face persecution.

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