Judge Signals She Will Protect Abrego Garcia From Hasty Second Deportation

The judge, Paula Xinis, said some legal safeguard was needed because the Trump administration had already shown in this and other deportation cases that it could not be trusted.

A frustrated federal judge signaled on Friday that she would issue an order protecting Kilmar Armando Abrego Garcia, the immigrant who was wrongfully deported to El Salvador, from being hastily expelled from the United States again after he was brought back last month to face criminal charges.

The suggestion by Judge Paula Xinis, who is handling the original civil case emerging from the wrongful deportation, came during a hearing in Federal District Court in Maryland where she exploded at the Justice Department for having badly damaged the bonds of trust that are normally afforded by the courts to lawyers for the government.

“This has been the process from Day 1,” said Judge Xinis, who in the past several months has chided the administration over and over for how it has handled Mr. Abrego Garcia’s case. “You have taken the presumption of regularity and you’ve destroyed it in my view.”

Expressing their own frustrations, Mr. Abrego Garcia’s lawyers have asked Judge Xinis at a series of hearings this week to give them the chance to challenge any efforts by the Trump administration to re-deport their client if he is released from custody in his criminal case and handed over to immigration officials.

The lawyers want Judge Xinis to bar the administration from beginning removal proceedings for two or three business days if Mr. Abrego Garcia is freed from criminal custody, which could happen as early as Wednesday, when there is a separate hearing in his criminal case in Nashville.

While the Justice Department initially vowed to take Mr. Abrego Garcia to trial on charges of immigrant smuggling filed against him in Nashville, department lawyers have more recently indicated that the Department of Homeland Security would seek to re-deport him before a trial took place — perhaps to a third country where he has never lived.

Judge Xinis said some legal safeguard was needed because the administration had already shown in this and other deportation cases that it could not be trusted.

“I’m deeply concerned that if there’s no restraint on you,” the judge told a Justice Department lawyer, “Mr. Abrego will be on another plane to another country because that’s what you’ve done in other cases.”

Her vexation reflected a widespread disillusionment with the government that has been expressed by federal judges handling other deportation cases. At least three judges in recent months have accused Justice Department lawyers of flouting their orders or of acting in bad faith and have considered opening contempt proceedings to punish them and other Trump officials.

Judge Xinis’s frustration on Friday was prompted by the failure of the Justice Department to give her a clear picture of what the administration plans to do with Mr. Abrego Garcia if he is released on his criminal charges and turned over to Immigration and Customs Enforcement.

On Thursday, the judge had a top ICE official, Thomas Giles, testify in court for nearly four hours about the administration’s plans. But in court on Friday, she described the information he provided as “insufficient and incredible.”

Mr. Giles had told her that there was no way to know what would happen to Mr. Abrego Garcia until he was taken into custody by ICE. At that point, Mr. Giles said, the administration would either seek to send Mr. Abrego Garcia to a third country like South Sudan or try to return him to El Salvador, his homeland, after seeking to undo the initial order that expressly prohibited him from being sent there.

Moreover, Mr. Giles said, the final decision would be made by an ICE field officer.

None of that sat well with Judge Xinis, and in court on Friday she took out her annoyance on Sarmad M. Khojasteh, a lawyer for the Justice Department.

She told Mr. Khojasteh that “it defies reality” that such a high-profile matter would be handled by a relatively low-level official in an ICE field office. She also pressed him repeatedly about which course of action the government intended to take, raising her voice at one point to ask, “What are you going to do?”

Judge Xinis had little patience for Mr. Khojasteh’s protestations that the administration had made a mistake with Mr. Abrego Garcia the first time, but this time intended to scrupulously follow procedures.

“You violated the law undisputedly,” she told him. “But now you promise that you won’t do it again without showing how you aren’t going to do it again.”

These strong words seemed driven by her cumulative irritation at the Justice Department’s efforts, reaching back over many months, to sidestep her orders and obfuscate even her best attempts to get straight answers.

Almost from the moment the case began in late March, when Mr. Abrego Garcia’s family filed a lawsuit seeking his return from a notorious Salvadoran prison, the Trump administration has played fast and loose with the judge. First, the administration danced around her instructions to “facilitate” his release from Salvadoran custody even though it openly acknowledged that his original expulsion was an “administrative error.”

Then when the judge began an investigation to determine what steps Trump officials had taken to comply with her directions, the administration repeatedly stonewalled her efforts.

Just as Mr. Abrego Garcia’s lawyers were a preparing a sprawling motion asking for sanctions, including against some homeland security officials, the Justice Department made a sudden and surprise announcement: Mr. Abrego Garcia had been returned to the United States — not simply to fix the government’s mistake, but to face indictment on immigrant smuggling charges.

Judge Xinis expressed skepticism about that indictment at an earlier hearing this week, asking a Justice Department lawyer whether it had merely been a pretext to comply with her orders. The lawyer, Bridget O’Hickey, maintained that the indictment had been obtained in good faith and had emerged from a legitimate criminal investigation.

At the same hearing, however, a different Justice Department lawyer cast serious doubt on whether Mr. Abrego Garcia would ever actually stand trial. This lawyer, Jonathan Guynn, admitted that if the defendant was released from criminal custody next week, the Justice Department would effectively set the charges aside and hand him over to the homeland security officials for immediate removal.

That plan contradicted both top Justice Department and White House officials and prompted Judge Xinis to exclaim that getting answers out of the administration was “like trying to nail Jell-O to a wall.”

Judge Xinis did not specify when she would issue an order protecting Mr. Abrego Garcia. But she said she wanted to address the question before the judge in the criminal case, Waverly D. Crenshaw Jr., holds a hearing on Wednesday to consider whether to release Mr. Abrego Garcia.

Our Coverage of U.S. Immigration

• Kilmar Armando Abrego Garcia: The Justice Department has insisted that the indictment filed against Abrego Garcia was a necessary tool to seek accountability against someone who was supposedly a dangerous criminal. But recent developments suggest that the department is not quite as committed to pursuing the prosecution as it initially seemed.
• Showing Their Faces: Elected officials in New York and California are trying to upend President Trump’s deportation campaign by banning law enforcement officers from wearing masks in public.
• Raids at Church: The Diocese of San Bernardino has told its parishioners that they do not have to attend Mass for fear of federal raids. The lifting of the obligation for Catholics is a rare step usually reserved for extenuating circumstances.
•  Venezuelan Deportations: The Trump administration has insisted in court that it has no control over the nearly 140 Venezuelan immigrants it deported to a prison in El Salvador. Lawyers for the Venezuelan men produced a document seeming to undermine that assertion.
• A New Perspective: One of the reasons Chris Allred voted for Trump was his opposition to illegal immigration. His wife, who is in the country illegally, bumped up against these views.
• Deportation Protections Ended: The Trump administration ended protections for migrants from Honduras and Nicaragua that shielded them from deportation and allowed them to work.

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