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.
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.
Subscribe
to
read
more
at
Law
and
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Kathryn
