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????

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.

HHS Discovers ONE WEIRD TRICK To Disappear Immigrant Children

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.

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.

Indeed, Cantú didn’t even understand some of the language in the declaration dictated by State Department counsel for him to sign.

“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 …

It’s a lot of trouble just to cover up an error back in March. But luckily, Drew Ensign’s got the time.