Abrego Garcia v. Noem: A Hearing Diary

HAPPENING NOW: Scheduling conference in Kilmar Abrego Garcia's civil case challenging the government's efforts to deport him to Uganda. Simon Sandoval-Moshenberg is repping Abrego Garcia, Drew Ensign is back for DOJ. 🧵⬇️

Judge Xinis: My understanding is that petitioner has sought to re-open immigration proceedings and seek asylum? Moshenberg: Yes, had not filed at time of last hearing, but has since filed and re-opened with immigration court in Baltimore

Xinis: Ok, in that respect I have nothing to do with it… I don’t have jurisdiction, it’s on an independent track. Moshenberg: If motion is granted, it would be a sea change and we’d be in different factual position than we are now…We think appropriate to let immigration judge take crack at that.

Xinis: Ok, today, my job is to set response date for the government and reply and date for evidentiary hearing. I don’t see the point of delaying this indefinitely because the proceedings are operating in parallel

Xinis: There’s another avenue at play here, which is the credible fear interview. Is that right? Moshenberg: I would direct you to Mr. Ensign. We’re not clear what the government thinks the process is for challenging the particular country of removal

Xinis: But it’s a separate process? Moshenberg: Yes

Xinis: Again, as matter of first principles, I don’t have jurisdiction there unless there’s a constitutional right being violated…unless there is no due process, etc. But whatever process is, petitioners are asking it to be reduced to writing and government resists my intervention in that respect.

Xinis turns to scheduling. Let me run by you the current schedule and get comments, she says. Given the timeline from immigration side, I would expect respondents' response in three weeks. Reply week later. Witness list 48 hours before evidentiary hearing sometime after October 1.

Xinis: That's the rough contours. Any issues? Moshenberg says that's fine. Ensign says that he thinks it's possible the record may not be fully developed at that time..might be contingencies that come up that requires supplemental briefing

Xinis: I think it's best for everyone to move toward that hearing. Everyone, including the president, has been telling the world they pan to deport Mr. Abrego to Uganda. They seem pretty firm on that. All indications point to the idea that we need to get this part of Mr. Abrego's case moving.

Xinis: With that, let's work backwards. Let's find a date in early October for hearing. Oct. 6 is a Monday. How does that work? Moshenberg: That's acceptable Ensign: I believe I can make that work Xinis: Will be evidentiary hearing. Begin at 10 am.

Xinis: There were questions to me about how long it would take me to rule. I can say I will try to get decision to you within 30 days after that hearing.

Xinis: Any questions? Obviously I'll reduce to writing. Moshenberg: No questions but one more matter to bring up. Xinis: Given all of this, I'm going to extend the two prongs of my TRO. One that Abrego not be deported, the other that he be detained within 200 miles of courthouse

Ensign: We appreciate this court's willingness to decide quickly..Government's concern is that there's a presumption against detention after 6 months (under Supreme Court precedent)

[My cell service cut out right after that but I *think* Xinis said that she would endeavor to decide quickly] Xinis: Alright, very good. Anything else? Moshenberg: One thing. At time of Abrego Garcia's detention we requested any documents served on him, but haven't been given those.

Moshenberg: We'd ask court to request or order that government serve any such documents on us. Xinis: Have you been served any documents? Moshenberg: An email prior to his detention that government planned to remove him to Uganda....

Xinis: I think reasonable request. Mr. Ensign, can you confirm if any documents were provided to him? Ensign: My understanding any documents provided to him also served on his counsel, but we can check on that. Xinis: Get it done by Friday? Ensign: Yes

Before we wrap, Ensign says for the record that the government objects to the extension of the TRO orders re: removal and place of detention. But while preserving that objection, Ensign says the government is committed to not removing Abrego while these proceedings are ongoing

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