GREENBELT, Maryland — A federal judge grew frustrated Monday over the Trump administration’s shifting claims about its handling of Kilmar Abrego Garcia’s illegal deportation to El Salvador — and whether it plans to deport him again before a criminal case against him is resolved.
U.S. District Judge Paula Xinis said getting certain answers from the administration was like “nailing jello to a wall” and ordered the Justice Department to produce a witness from the Department of Homeland Security on Thursday to testify about its designs for Abrego.
Abrego is currently incarcerated in Tennessee, where he faces federal human smuggling charges. A magistrate judge initially ordered him released from custody but agreed to a last-ditch request by Abrego to remain in detention for fear that the administration intends to immediately deport him if released. His attorneys say the criminal case was concocted by the administration on flimsy evidence in order to persuade the government of El Salvador to return Abrego to the United States in June.
Xinis pressed the Justice Department on those claims Monday, noting that officials testified in Abrego’s criminal case that the investigation of didn’t begin until April 28 — more than a month after he was illegally deported to El Salvador in violation of a 2019 court order finding he could face persecution there at the hands of a local gang.
But a DOJ attorney said Monday that the investigation actually began earlier than April 28, baffling Xinis.
“Now I have real concerns, as if I haven’t for the last three months,” Xinis said.
Xinis is weighing a demand by Abrego’s lawyers to order the administration to return him to Maryland, where he had been living for years with his wife and children before he was improperly deported to El Salvador. The Justice Department contends that Abrego’s return to the United States in June fulfills the court’s requirement that he be released from El Salvador’s custody and that officials are under no obligation to take any further steps. But Abrego’s lawyers say Xinis’ order requires him to be returned to his original status in Maryland prior to the illegal deportation.
Abrego’s return to the United States came more than two months after Xinis initially ordered the government to bring him back from El Salvador, a case that led twice to Supreme Court intervention that ultimately upheld the bulk of Xinis’ requirements. President Donald Trump and his closest allies have repeatedly disparaged Abrego, rejecting the notion that he would either return to the United States or walk free on American soil, despite court orders. Trump and his aides have often made contradictory claims that have not matched the Justice Department’s arguments in court.
DOJ attorneys indicated Monday that the Department of Homeland Security intended to immediately begin deportation proceedings against Abrego if he were released next week from his incarceration in Tennessee, with its initial plan to send him to a country other than his native El Salvador. That intention conflicts with a White House statement last month that described such a plan — voiced by prosecutors at an earlier hearing — as “fake news.”
DOJ officials said the administration had not yet identified a so-called “third country” to accept Abrego and could change course to seek to return him to El Salvador — this time by first seeking to overturn the 2019 court order that barred his deportation there.
The Justice Department also said repeatedly that Abrego’s deportation in March — when he was arrested and abruptly put on a plane to El Salvador despite the six-year-old court order — was an “isolated error.” That admission contradicted public statements by the White House and DOJ officials at earlier hearings and again underscored the department’s shifting positions in the case.
“For three months, your clients told the world they weren’t going to do anything to bring him back. The president said it in two interviews,” Xinis recalled. “Am I really supposed to ignore all that? … How is that not relevant to this inquiry?”
“This situation is unique,” responded Justice Department attorney Bridget O’Hickey. “We have acknowledged this was an administrative error.”
Xinis spent a portion of the hearing pressing DOJ lawyers on whether its decision to indict Abrego was part of its negotiations to convince El Salvador to return him to the United States in early June. O’Hickey said the grand jury process was taking place “in tandem” with the discussions with the Salvadoran government.