Abrego Garcia v. Noem: A Hearing Diary, Oct. 10

At 11am I will try to live-blog, for @lawfaremedia.org , the hearing in Abrego Garcia’s civil (habeas corpus) case in federal court in Greenbelt MD. Abrego is seeking release from detention under a SCOTUS precedent called Zadvydas v Davis (2001). ...

Meanwhile, in Abrego’s criminal case, a status conference is due to start at 9am CT/10am ET in Nashville TN over what sort of discovery to provide Abrego in pursuing his motion to dismiss for vindictive prosecution. Unfortunately, we can't get someone there today. ... /2

Here in Greenbelt, we do not yet know if we'll hear live testimony or just oral argument. To keep Abrego detained, govt must show that Abrego faces a “significant likelihood of removal ... in the reasonably foreseeable future.” Here’s Judge Xinis’ order convening the hearing:

The Zadvydas issue involves these statutes, plus due process principles. Immigration laws (8 USC 1231a1 & a2) say an alien shall be detained for 90 days after his order of removal (“removal period”), & 1236a6 says that period can be extended in some cases. But ...

... in Zadvydas, SCOTUS held that there was a rebuttable presumption that the alien should be detained no more than 6 mos. The key is whether govt can show “significant likelihood of removal ... in the reasonably foreseeable future. ... /5

... Abrego’s situation is a bit different. His order of removal was back in 2019 but he was released because he won “withholding of removal.” He was only re-arrested in March 2025. His attys say his 6-mos Zadvydas period” expired in early 2020. ... /6

... They argue basically (1) govt can’t show its really taking steps to remove him in the “reasonably foreseeable future” (in part because they’re keeping him for criminal trial) & (2) it could’ve taken steps to remove him during the 5 years he was free. ... /7

Though Abrego's attys were notified that govt planned to remove him to Eswatini (after 1st saying Uganda), at the last hearing govt attys could not even say whether Eswatini had yet been contacted. Today govt can present evidence of concrete steps its taken or is about to take. ... /8

There have also been recent reports that DHS notified his attys that now he'd be sent to Ghana, but that notice seems to have been rescinded. Doubtless we'll get the most up-to-date info shortly. ...

https://abcnews.go.com/International/dhs-now-plans-deport-abrego-garcia-ghana/story?id=126382679

DHS says notice about deporting Abrego Garcia to Ghana was 'premature' Looks like DOJ has brought at least one witness today, so we'll likely get testimony. /10

Plaintiffs attorneys at counsel table are Andrew Rossman, Simon Sandoval-Moshenberg, Sascha Rand, Jonathan Cooper, & Olivia Horton. All are from the Quinn Emanuel firm excerpt Sandoval-Moshenberg, who's an immigration specialist who was Abrego's first lawyer after his 2025 arrest. /11

For DOJ I see Bridget O'Hickey (counsel to the Asst AG), Ernesto Molina, Jr. (deputy director of office of immigration litigation), and, I think, 2 others, but I can't yet ID them. /12

I suspect one of the other DOJ attys is Jonathan Guynn, who was here last time and whose name I misspelled then. (Regret the error.) He's a deputy assistant AG. (Molina is a career guy.) /13

Now getting warnings about electronic devices. (I'm in the media room.) /14

All rise. US District Judge Paula Xinis is on the bench. Attys giving appearances. Lead Abrego atty today: Andrew Rossman Lead DOJ: Jonathan Guynn. The DOJ atty I couldn't ID is Drew Ensign. /15

There's one other Abrego atty present i didn't mention before: Rina Gandhi. Govt witness is apparently John Schultz of DHS. Judge is speaking at sidebar (at the bench) with one lawyer from each side, apparently about how to conduct the hearing today. /16

Guynn & Rossman are the attys at the bench. /17

Surprisingly long bench conference continues. (Out of public hearing, of course.) /18

Sascha Rand and Ensign were also present for that. Bench conference over now. Judge: you can call Mr. Schultz. /19

Guynn is marking exhibits. Then hands copies up to bench. JG: Respondents call John Schultz John Schultz sworn in. spells name. G: where employed? S: DHS immigration & customs enforcement, enforcement & removal operations (ERO) G: position with ICE? S: dep asst director for removal /20

He's been with ICE since april 2003 current role since june 2024. [describes his functions.] G: prior to that? S: asst attache in Mexico City for ICE (1/23 to 6/24). worked on removals from US to Mexico. ... /21

G: what role prior to that? S: asst attache in Frankfurt, Germany. facilitated transit of aliens thru Frankfurt to countries in europe and africa. ... G: prior to thatr, what role with ICE S: dep asst director for ERO. same responsiblities as now ... /22

Judge asks him to repeat that answer. She's taking notes S: worked with State Dept. adjudicated post-custody reviews. facilitated getting travel docs from foreign govts. G: prior to that S: unit chief over removal & int'l [relations?] similar role. one rung lower. ... /23

G: before that? S: asst attache in beijing china . ... G: prior to that? S: asst field office director in San Diego ... oversight of staging unit. less than 24-hr holding cell. managed juvenile section. managed training unit. ... /24

G: prior to that? S: senior advisor to ICE director. in that role i advised on anything related to enforcement removal operations. worked with senior counsel there to expand some programs regarding I-9 verifications in work place G: prior to that? /25

S: Acting chief of staff for ERO. ... G: what time in that last role? S: 2009 to 2011. G: you joined ice in 2003. S: initially hired as deportation officer in NJ. then transferred to KC. worked on fugitive operations team. reducing backlog. identified leads, tried to arrest individuals. /26

G: prior to joining ICE in 2003, where employed? S: Park Police a cademy. before that, NYC PD. G: when join NYC PD S: Sept 2000. serving on 9/11.. G: understanding of Abrego's status. S: order of removal, with withholding from El Salvador. IJ denied his motion to reopen proceedings. /27

G: why is Abrego not being removed? S: injunction preventing ERO from removing him. G: do you know when court will resolve injunctiojn? S: i do not know. G: what steps has ICE already taken. ... when did ICE take hijm into custody? S: August 25 (sic?) /28

G: what potential countries has ICE identified? S: Uganda, Eswatini. discussions with other countries. G: did ICE provide notice of intent to remove to uganda? S: yes, 8/23/25 ... he claimed fear of persecution to Uganda. G: what did US do next? S: asked State Dept for other countries. /29

S: they ID'd Eswatini. ICE provided notice 9/5/25 ... not aware of any response to that email. G: did he express concerns about being removed to eswatini S: believe he did G: do you know what they were? S: no. h expressed a fear. /30

G: he expressed fear of ever African country? S: yes. G: every Central American country, including Costa Rica? S: yes. ... G: what's yur understanding of representations Eswatini has made about how aliens will be treated once they arrive? S: they'll be safe from torture or refoulement /31

G: what understanding of state dept's assessment of those assurances? S: state dept has deemed assurances credible & has notified ICE Objection--foundation J: can you lay foundation G: aware of letters from State to ICE about MOU with Eswatini S: yes. i reviewed that letter /32

J: to be clear, that's basis for your [answer]? S: yes, ma'am. G: has ICE previously removed aliens to eswatini under that memo? S: yes. G: has Eswatini agreed to receive Abrego under this memo objection-foundation G: have you communicated with ICE about abrego's case? S: i have /33

G: have you rec'd info from State about its conversations with 3d countries about abrego? S: i have ... Guynn begins to ask similar question about assurances ICE &/or State have rec'd from Eswatini objection foundation Judge: can attys approach. [sidebar] /34

G: Mr Schultz, can you provide name of indivduals at State who've communicated with you about their efforts to find a host country for mr. abrego S: sean mursky 2 days ago (phonetic). dont recall name of one i spoke to this morning. G: carl anderson? S: yes, that's the name ... /35

S: spoke to Mursky about Eswatini 2 days ago. Wednesday morning about the immediate case right now ... they had not pursued further discussion J: you spoke to anderson this morning? /36

[sorry lost some frames important frames in there] He said discussions were ongoing but Eswatini had not yet agreed to receive Abrego, even if injunction was lifted.] /37

S: if injunction is dissolved, we will remove him to eswatini. G: what's your understanding of state's attempts to find additional host countries if plan to remove him to eswatini does not receive. S: also in discussions with Ghana. /38

G: has US ID'd Ghana as country he'll be sent to S: not at this time. a notice was prematurely sent to him. G: why? S: field office just trying to get ahead of things so if ghana did say yes removal would be quicker. G: if court dissolved injunction , how long would it take to remove him /39

objection--foundation G: do you have experience finding alternate 3d countries to remove aliens? S: [didn't underestand answer] haven't been involved where first 3d country fell through. ICE asks State for assistance. If country A says no, they pivot to B, i don't have visibility on country A /40

G: if court dissolved injunction, how confidetn arew you ICE could remove him to a 3d country in next 2 or 3 weeiks. S: confident we could remove him quickly. within 72 hours. Judge asks counsel to bench again. /41

[Sorry, I dont know what happened with a fairly crucial frame above. But Guynn seemed a little surprised that Schultz could not say that Eswatini would accept Abrego if the injunction was lifted. At Judge had taken over the questioning at that point. Guynn tried to interrupt, but in vain.] /42

While bench conference proceeds, this is what @joshgerstein.bsky.social heard:

Most of the lengthy bench conference (all?) is between Judge Xinis and DOJ atty Guynn. /44

Conference over Guynn: based on 20 yrs working with ICE, how quickly do you think ICE could remove him to 3d country? S: once we get approval from 3d country, could quickly operationalize ... within 32 hrs. Guynn sits down /45

Sascha Rand for Abrego: He asks if he can borrow exhibit tabs from someone. We've lost video now, but have audio R: couple preliminaries. you spent some period of time at ICE as dep asst director for removal management? for half the world? which? S: forget which segment. current role /46

west: central america. south amer, majority of africa. ... later i covered asia and all of africa. previously i covered asia, europe, middle ease R: of 22 yrs at ICE, how many dep asst ERO? S: 5.5 years R: in 2 stints? S: yes ... [describing hierarchy now] /47

Rand: over last couple months you've had responsibility for Costa Rica? yes. R: for Uganda? yes R: Eswatini? yes R: Ghana? yes. R: personal involvement with abrego case? i know of this case yes. R: personally involved before this week? S: not actively. /48

R: passively in some way? S: Uh— [pause] R: withdrawn. what role if any have you had in abrego's case before tuesday of this week. at a high level? S: trying to recall. i know after he was removed in march i looked into his case, but can;'t recall in what capacity. outside of that dont recall /49

R: no involvement before Tuesday? S: in august i was told of potential of him going to uganda? R: involved in picking country or facilitating removal? S: i notified Field Office Uganda had been selected as potential country. we had flight going to africa a week after he entered ICE custody. /50

R: any other involvewment whatsoever prior to tuesday? S: dont recall if i did R: and you spewnt some time preparing for your testimony, too? S: yes R: if you had involvement, expect you to be aware of it, right? S: yes R: somebody in your office has been involv ed in abrego's case, correct? /51`

S: at this time we can't remove him. nothing we can do. R: who is responsible for his case in ERO? assigned to his case if something should cojme up? you? someone else? S: at field office, there's an officer assigned. R: specific question. your division, ERO, who is responsible? /52

S: whoever is assigbned el salvador docket. Ray TK or Jed Thompson. R: for eswatini, who's responsible? Objection--misstates testimony R: somebody involved in your division with decision about sending him to Uganda? S: my division, no. R: who was responsible in ICE for evaluating Uganda? /53

S: we were notified that uganda was the country. R: who? S: so i was told from HLS council. R: who is that? S: spoke to matt ochoa . work with National sec Council at White House Ochoa. R: when did he contact you? S: august 24 /54

R: you were one he contacted? S: yes. R: this call didn't come from state dept, correct? S: correct R; 1st time you'v e been contacted out of security council where to send somebody? no. R: how many times? off top of head, dont know. one, two. /55

R: were you contacted about Eswatini? S: in my division? yes, told by State they were in discussions. R: sept 5, eswatini was emailed to abrego's counsel, correct? S: yes R: you were informed? S: i was not notified. /56

R: this week was first time you became aware Eswatini was country being considered? S: yes. R: anyone else know? S: possibly my boss, Melissa Harper. i asked her if she knew this week & she hadn't heard that. R: Neither you nor boss knew Eswatini was country /57

S: i can only speak for myself. Rand: in terms of your prep today. were you given copy of her honor's order? S: i saw a page-and-ahalf order. R: supposed to produce someone to testify about steps taken to remove Abrego to uganda, eswatini, costa rica ... S: correct /58

R: you talked to Mursky? S; correct R: and mr. anderson S; correct R: how long conversation with Mursky? S: 5 min R: 2 days ago S: wed early afternoon R: anderson this morning? S; right before 9am. ... lasted 5 min, 7 min /59

R: mursky told you eswatini had not been approached yet? objection--misstates overruled S: i understood that state had reached out. R: so mursky told you as of wed no one had reached out to eswatini S: that's correct R: who suggested you speak to Mr. Anderson? S: counsel /60

S: to get latest info about eswatini R: anderson told you what this morning S: conversations ongoing R: eswatini as o fthis morning eswatini had not agreed to take abrefgo? S: not yet. /61

R: anything else mursky or anderson told you relevant to today? S: anderson said eswatini said no, but conversations ongoing. ... but said no cases have been denied once manifest is sent over. ... that's the list of who's going on a flight. R: manifest has nothing to do with MOU? S: no. /62

Judge: you said a moment ago eswatini said no. S: that's correct. J: you took no to mean, it said no to accepting abrego? S: correct ... said no initially but conversations continuing J: did anderson say when eswatini said no? S: no, but request went into eswatini wed evening /63

J: US did not ask till this past wednesday? S: [didn't undertstand answer] R: you spoke about fear interview by US CIS. S: yes R: fear determination subject to judicial review? S: i dont know. R: how are you so confident he could be remo ved in 72 hrs? /64 S: once 3d country is approved and fear is adjudicated, he could be removed w/in 72 hrs. R: but if Abrego says he has a fear and gets judicial review, how can you be confident S: if he can't be removed, ICE is not going to remove him. once adjudicated, we can remove /64

R: your testimony is ... 72 hrs from having country accept him and adjudication of his fear designation who told you ICE couldn't do anything till this court modified its injunction? objection - privilege OR S: Jon. R: Mr. Guynn? S: yes. R: when? S: wed evening or yesterday /65

R: how much time did you spend preparing, aside from the 2 5-min conversations. S: maybe 5 hours ... 1.5 wednesday. about 2.75 yesterday. maybe 1.5 today R: i worked on a dec that wasn't served on court. maybe an hour S: subject? Obj-privileged /66

R: prepared in connection with your testimony here? S: yes R: include info you know in personal capacity as opposed to capacity responding to her honor's order? S: my capacity as dep asst director. ... based on info prior to my knowledge i'd be testifying /67

S: i texted my boss. R: to see if she knew Eswatini had been designated? S: [correct] ... R: so that was in connection with your job resopnsibilities? S: yes R: other materials you looked at in preparing? S: yes. judge's order. MOU. i reviewed the ghana MOU /68

R: look at anything in connection with costa rica? S: no R: any emails? S: dont believe so no. R: didn't speak to anyone else other than anderson, mursky, and text to boss? objection sustained R: anyone else you spoke with ... /69

S: no. R: lawyers with you for those 3 sessions of prep? S: i'm horrible with names. Jon, Drew, Bridget, I forget your name [Ernesto], TK Montecino, Charles Wall. may've been Laura something. R: 5 other lawyers who aren't here today S: yes about 5 R: nonlawyers S: for testimony no sir /70

R: i'm going to ask for the ghana MOU. he said he relied on it. Guynn: he didn't say he relied on it J: we'll deal with that later. R: you know what an I-241 is? Judge: the 5 hrs you spent. all with counsel? or did you prepare independently. S: all with counsel J: did you review A-file? S: no /71

R: did you review Mr. Giles's (ph) testimony in related matter? S: no. R: you're familiar with I-241 form S: yes. i've filled out some. it's when ICE is asking a country to take a 3d country national. deportation officer fills that out. R: is there an I-241 for Abrego this year? /72

S: dont' know. haven't asked anyone if there is. we no longer do the 241. R: when did you stop? S: maybe 3-4 mos ago. Asst Director Harper said 241 no longer to be done R: what was reasoning? S: historically, the 241 has never truly been acted upon by 3d country. /73

S: 3d countries have refused them. State said you're confusing the countries, so we're not doing them any more. R: 241s sent to embassies and confusing those countries? /74

S: [all these field offices start sending embassied 241s] ... embassies start getting nervous, call state, state calls us, says hey, this 241 thing is screwing everything up. the 241 was never really successful ... R: why wasn't it useful to let embassy know you have someone ICE thinks should /75

... be sent to their country? S: it's very rare they accept a person who isn't their national. R: putting aside Jan 2025 forward, going back in time, can count on one hand the number of removals to 3d country? S: very rare. R: one hand? S: can't account for every removal US does. can't say /76

R: you personally can count number of such situations on onde hand? S: probably R: can get to 6? S: [probably ?] R: probably less than 20 in entire division? S: prior to Jan 2025? so [pause] need to amend my answer. 3d country removals--more than 5, more than 10 to Mexico. /77

R: take out mexico. less than 20? S: yes, that's probably right R: what's new process since july 2025 [when I-241s discontinued] objection -- outside scope OR S: when field has individ who has withholding, they send it to my division. we maintain database, work with State & DHS to ID 3d cntry /78

R: no form. just chats? S: email R: what's formal file look like. if i wanted to see since july what was done -- comms between you and state, NSC. S: nothing since july. haven't been able to remove him. there's been an injunction. /79

R: injunction is preventing ICE/State from finding a 3d country. is that your perseonal belief S: we currently have 62,000 in custody. ... R: this was atypical case in terms of notoriety? S: yes R: prez of US has tweeted about him S: yes. R: Noem S: dont have twitter or X. dont know /80

R: your testimony ... 62K cases are the reasons no efforst have been made on removal objection-argumentative withdrawn R: you have working knowledge of Abrego's experience with ICE and DHS? objection - vague /81

R: do you know Abrego was originally detained on 3/28/19 S: yes R: granted withholding of removal on 10/10/19 S: [agrees] R: DHS knew since then they couldn't send him to El Salvador. did anyone do anything from 2019 till Monday of this week to figure out where to send him? /82

S: uganda R: from 2019 to 8/23/25 , aware of any effort to find 3d country for him S: not aware of it R: stronger. your understanding is that nothing was done objection--misstates J: know of anything that was done? S: i dont J: how would you find out? S: could look in system of record /83

S: the EARM system J: if any prior effort had been made it would be there? S: yes R: would that system include reference to any I-241s? S: yes. likely 241s were sent R: you say likely because minute withholding order is entered ICE is supposed to start figuring it out. but you dont know? /84

objection R: we could look in EARM and see if any I-241s were sent? S: yes R: aware that Abrego was removed to El Salvador and spent time at CEC OT. S: yes R: and no later than 4/4 DHS realized he shouldn't have been S: dont know exact date /85

S: do i know atty testified it was mistake? Judge: there was an affidavit. have you looked at any of that? S: no i've not R: you know DHS recognized he shouldnt have been sent to el salvador obj - outside scope OR R: when did you undertsand ICE realized he shouldn't have been sent to ES? /86

S: i dont know when DHS/ICE made determination R: was concept known around DHS/ICE around 4/4 S: yes. R: from then to late august 2025, what did DHS/ICE do to determine where to send him as 3d country Obj - relevance /87

Judge: do you know DHS/ICE did anything to find 3d country between march 2025 and august 2025? S: no, i do not. J: you have no indication anything was done. S: [correct] R: anything that prohibits ICE from doing that work? S: not aware of anything. R: nothnig prevented DHS from doing that /88

Judge: there are no regs that prevent DHS or ICE from finding 3d country for someone with withholding order. S: correct J: Let's break till 1:15pm. RECESS /89

About to resume here. Sascha Rand, for Abrego, is back at the dais. /90

Judge Xinis back. Rand: switch topics. you aware that costa rica issued letter of assurances about abrego in august 2025 Schultz: [no] R: aware that letter was issued by costa rica? S: i understand they notified ICE they'd accept him. /91

R: sua sponte? costa rica did it on their own? S: no knowledge that ICE reached out to costa rica. R: you have any knowledge that anyone from the US has reached out to costa rica objection - outside scope sidebar /92

long bench conference over R: sitting here today, do you have any knowledge of who in US govt reached out to Costa Rica S: do not R: what agency? S: dont know. likely state dept. R: you, to your knowledge, your colleagues not consulted? obj - foundation OR S: dont know one way or other /93

R: who would you speak to to find out S: i know my staff and i didn't. dont know if boss did. R: i'm going to put the letter (from Costa Rica giving diplomatic assurances) in the record. Petitioners 1. S: have not seen [this before]. R: seen different letter re Costa Rica? S: no. /94 R: I offer into evidence. Petitioners 1. R: any situations in past experience at ICE in which a letter like Pets 1 is created and your division is not involved? S: so, i can say that -- yes. answer's yes R: how many occasions? S: [long pause] i think i count 4 /95

S: they involve 3d country removal flights. individuals who are being sent to country not their own. but there's been some flights where they haven't originated in my division, but olriginated elsewhere in ICE R: situations where an assurance letter was secured without involvement of your div? /96

S: yes. the flight to eswatini last week. ... 10 people. R: others? S: not that i'm aware of R: unusual? obj - argumentative S: yes. R: do you believe ICE had any role in connection with determining that costa rica was an appropriate place for abrego to go in august 2025? /97

S: wasn't from my division. R: cewrtainly wasn't some field officer from PA or New Orleans. S: that's correct R: came from outside DHS, right? S: dont know. can speak for my division. dont know if others in ICE made the request /98

R: aware that Abrego identified costa rica as his preferred [3d country removal destination]? obj OR S: not aware. R: This is Exhibit G in petition for habeas. See designation of country of removal signed by Abrego. Aware of this? S: hadn't seen before. /99

R: agree it appears to be notice of designation? S: that's the title yes R: dealt with situations like this before where person designates country to which he wants to be removed? S: i've seen that. R: familiar with regulatory regime, under 8 USC 1231? S: yes. /100

S: under INA Section 241. R: [showing him document] you have in front of hou petitioners exhibit 3. it's 8 USC 1231. S: yes ... R: what you referred to as INA 241? S: yes. R: see "selection of country by alien" S: yes. /101 R: that's where it talks about designation of a third country? obj - calls for legal conclusion OR S: yes. R: is alien's designation the first stop in regulatory scheme. you consider that first? objection - legal conclusion OR S: yes R: that's your understanding thruout your career? S: yes /102

R: under (c ) there under 3 of 10 you have some exceptions. AG may disregard designations *if*, see that? S: yes R: go back up to (a)(2): AG shall remove the alien to country he so designates. S: yes R: shall not may obj - argumentative [withdrawn] /103

R: ... AG may disregard if 4 exceptions Guynn: continuing objection to this entire line of questioning J: i note your objection R: little i: alien fails to designate a country promptly. S: yes R: little ii: govt of country does not inform US whether it will accept S: yes /104

R: let's go to iii: govt of country not willing to accept alien into country. you have letter in front of you where Costa Rica is accepting him provided his criminal sentence is served S: correct R: are you aware if AG bondi or any agent of hers indicating that abrego going to Costa Rica... /105

... be prejudicial to US S: no. R: you've dealt with situations at DHS/ICE where AG or agent did indicate it would be prejudicial to send somebody to 3d party country of tehir designation S: not that i recall R: cases where someone would be trained as terrorist? S: i'm not aware /106

R: have individuals who have withholding orders been removed to costa rica since january of this year? S: not that i'm aware of. we've removed indiv iduals to costa rica. R: not inappropriate to send individuals to costa rica for some reason? S: alien has opp to raise fear ... /107

R: my question different. are you aware of anyone in US govt saying it's against US interest for aliens to be sent to costa rica? S: no R: agree that would be bizarre thing to say? obj - sustained R: anything stopping DHS/ICE from asking Costa Rica whether they'd take Abrego prior to ... /107

... criminal trial? S: No. R: has anyhone reached out to costa rica to ask him that? S: not that i'm aware of R: understand what happens vis a vis Abrego if his criminal trial is dismissed based on pending vindictive prosecution motion S: [no] /108

R: is it your testimony that if able ICE/DHS would remove Abrego before his criminal trial to a 3d country? S: from knowledge i have, if a 3d country, -- yes. R: why can't US govt just send Abrego to costa rica tomorrow objection lack of foundation OR S: document here says: when he finishes /109

... criminal sentence. R: you have no idea whether that condition was imposed by US or Costa Rica. fair? S: fair R: you have no idea if costa rica would take him right now Guynn: we will stip that costa rica is on the table if eswatini falls thru. R: you have no idea if US reached out /110

... whether costa rica wqould take him before his criminal trial S: correct R: who can i ask that question of obj - lack of foundation Judge: are you aware whether that request to costa rica has been made? would you take abrego prior to criminal trial? S: do not know /111

J: were you asked to get an answer to that question? S: no J: did you ask that question of anyone? S: no, YH. R: you're aware there was ruling on Abrego's motion to reopen his immigration proceedings? S: yes R: different judge from one who handled 2019 withholding, tho still sitting /112

S: don't know R: who would i ask in terms of selection of supervisory immigration judge (IJ) from Atlanta to handle his case as opposed to the sitting immigration judge who handled his case in 2019 objection sidebar /113

resuming: R: who would i ask questions of at DHS/ICE to understand how immigration selection process was made for abrego's motion to reopen S: IJs are under Exec Office of Immigration Review. arm of DOJ. not within ICE. /114

R: earlier you said you got comm ~aug 22 about removal of abrego to uganda? S: yes, around 22nd/23rd R: you got text from your boss, harper, attaching article saying Abrego had been advised of potential removal to uganda. S: yes. it just said 'get ready' or 'be prepared' ... /115

R: did you understand if there was any MOU with uganda S: no. R: did you ask? S: no. R: any analysis to determine that uganda would not torture or persecute or refoul him back to el salvador? S: not aware /116

R: you got a call within a day or two from Homeland Sec Council S: yes. Matt Ochoa. R: phone call? S: yes. R: ever spoken to him before? S: yes. many [times]. ... he was a chief of staff of field office in san antonio ... [speak with him about removals of indivds to 3d countries] /117

R: Homeland Security Council is a council that sits within exec branch? S: yes R: subsidiary council beneath national sedcurity council? S: that's how i understand it. R: dept of state, DHS, WH S: 2 ERO individs. ... don't know how many sit on it /118

R: is that the group deciding where to send Abrego? S: i dont know R: who made uganda decision S: dont know R: what was sum & substnace of this case ~aug. 25? S: uganda had been identified as destination for abrego. 5 minutes maybe. obj - presidential communication /119

R: may i be heard? J: yes sidebar [so DOJ invoking presidential communication privilege suggests this decision about where to send Abrego is getting pretty high up] /120

[I think dep asst AG Drew Ensign is also in this long bench conference with Guynn, Rand, and the judge] /121

conference is over J: i apologize for the husher. i've always been a proponent of smooth jazz rather than the husher. R: did you have occasion in regard to eswatini to speak to someone from Homelabnd Security Council as well? S: yes kevin kopiaz. that was Wed. morning. R: 2 days ago. /122

S: yes. trying to find out if there was a flight. it was 3 or 4 minutes. R: what did he tell you. objection i'll move on R: let's stay with eswatini. how did you learn he mnight be removed there? S: on tuesday i learned from jorge montecino that there may be a flight to eswatini for abrego /123

S: montecino is bureau law division unit chief R: when did you first learn eswatini was on the table S: tuesday. can't recall time. probably early afternoon. R: he called you? S: think so R: if you called him you knew something was up S: then he called me. ... i didn't call him to ask about /124

S: ... eswatini. i think he called me. J: your best estimation is that he called you S: yes, YH R: that's teh 1st time you learned US govt was considering stending abrego to eswatini, correct? S: yes R: conversation about flights to parts of Africa? objection R: did it include legal advice? no /125

R: what was sum and substance of your conversation [with Montecino] about flights? Guynn: same objection J: approach sidebar /126

conf over R: back to your conversation with Montecino. sum and substance? S: may be progress, or flight to eswatini for abrego garcia R: ask him how did he know abrego was going? S: no R: purpose in telling you? J: what did you take hijm to mean? /127

S: maybe something going on re: flight to eswatini R: going back to uganda, was there a fear interview about uganda? S: [no? missed it] R: how did it change from uganda to eswatini? S: uganda ultimately said no R: where'd you get that? S: dept of state R: who S: this morning. 9 o'clockish /128

R: that was from mr. anderson S: i think that was actually from Charlie Wall. yesterday morning. principal legal advisor. R: part of yhour preparation? S: yes. R: how long was your conversation with him S: i was in his office for maybe 10 min /129

R: attys with you? S: alone 2 min. with DHS attys for 8 min. R: tell us everything said G: Obj - privileged R: [i thought he said they were factual statements] G: some of statements were factual but-- sidebar /130

R: i withdraw question. during your 10 min in mr. wall's office, tell us as much detail as you recall about facts you learned. S: he told me Abrego's name sent forward night before monday even 5pm towards eswatini. & i'm pretty certain he mentioned ghana. if not, Mr. anderson this morning /131

S: ... from State R: everything you remember S: told his name was provided to eswatini on wednesday at 5pm. i think we discussed ... how long it would take for a flight to get there. R: anyone say "we can't remove mr. abrego garcia because of this court's injunction"? objection - privileged /132

J: overruled S: i dont recall R: this was yesterday morning? S: yes sir. R: no recollection whatsoever. sitting in office of supervisor? S: not my supervisor R: he's senior to you? S: yes. just gave you the readout i recall. R: what else do you recall /133

S: thank you for doing this. i know it's a lot. here's a coin. it will be okay. R: any facts communicated to you by Mr. Wall in those 10 minutes S: he said that name had been sent over to eswatini. when rest of attys came in he repeated that. /134

R: wed afternoon at 5pm, you were told eswatini was advised [yes] R: aware of any assurances provided specifically as to abrego from eswatini? S: not yet. they haven't saaid yes they'd take him. R: they'd have to say yes and then you'd negotiate assurances. /135

S: i'd expect them to come together. R: why? S: looking at costa rica document, that's what they did. ... S: i believe we were going to process a fear claim for eswatini. anticipate an assurance letter from eswatini. ... S: my understanding CIS was going to adjudicate fear interview today. /136

S: but was advised it was not a good idea because his counsel was here. so they're planning to do it next week. R: will they provide abrego's counsel's access? S: can't speak to that R: what happens if CIS determines his fear is not credible. S: my understand, is there [judicial review] /137

S: that's my professional view. ... i believe it would be adjudicated. R: are you speaking on behalf of US govt or just giving us your personal view of what should happen Obj - outside scope S: behalf of govt. R: you were involved in 10 individs sent to Eswatini last week? S: inasmuch as /138

S: ... having them staged for removal. we have 62K individuals in custody. we rec'd a manifest . i rec'd a manifest. advised our travel team to stage him for removal. R: and 5 were removed to eswatini in july? S: yes R: were you involved? S: no. R: aware of news reporting about conditions /139

... that those individs are being held? objection - scope withdrawn R: are you involved in evaluation of Eswatini's diplomatic assurances about torture, refoulement etc? S: no /140

R: any analysis you're aware of ... what analysis if any is being underaken by dhs/ice/state as to how conditions in eswatini relate to the credibility of the assurances it has given [about protecting aliens sent there from torture & refoulement] G: obj - beyond the scope sidebar /141

[Incidentally, by "refoulement" they mean the danger that Abrego could be sent to a third country, like eswatini, only to have that country send him back to El Salvador, where the 2019 US immigration judge had ordered him not to be sent for fear of persecution.] /142

bench conf over R: Are you aware of any efforts made to evaluate whether abrego would be tortured if removed to eswatini S: no R: same as to persecution S: no R: same as to whether he'd bge detained. S: no R: refouled S: no. /143

R: couple questions about Ghana. your understasnding that if he cannot be removed to eswatini is next country is ghana? S: i understand dept of state is in conversations with ghana. don't know if there's a rate structure after eswatini and there's a "next country" R: what other countries . /144

S: [i'm aware other countries being discussed but not which] i know there's discussions with ghana about whetgher they'd take abrego. learned that this morning. from mr. anderson. that they're in negotiations with ghana. having conversations with ghana R: anything about assurances it would /145

... provide? S: no Judge: are you familiar with term 'travel documents' S: yes J: my understasnding they're issued to noncitizen prior to that person's return S: in terms of 3d country, we get acceptance to take person, but they dont issue a travel doc. /146

J: what is a travel doc? S: could be a piece of paper. could be a one-time use passport. ... [could be electronic.] we send over a database. J: are travel docs only issued when person is being returned to country of origin?f S: correct. dont need one to send back to 3d country /147

J: what assurances do you get that person will be able to stay in the 3d country indefinitely S: we dont get any J: how do you know 3d country won't refoul that person to country of origin /147

S: we work with state. state will do that part. with eswatini recently we had assurance. had assurances from ghana J: akin to what we saw with the costa rica letter S: more like a blanket document. agreement with eswatini has the assurances. J: that's all you have in terms of doc proof /148

Rand seems to be done (subject to some sidebar issues). Guynn asks for short break before he begins his redirect. 10 MINUTE RECESS /149

While we're on break, colleague @annabower.bsky.social has some personal news:

/150

Resuming. Judge: just want to chat briefly. Scheduling. we'll have redirect. limited recross. portion has to be done under seal. do you wish to go to oral argument today? G: Rossman: yes Sascha saying Ghana will not take Abrgo J: yes, it was on social media /151