Abrego Garcia v. Noem: A Hearing Diary, Oct. 6
A play-by-play account of a status conference that turned into a hearing on whether Abrego is entitled to release.
Published by The Lawfare Institute
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On Oct. 6, Judge Paula Xinis held a status conference in the habeas case of Kilmar Abrego Garcia. She had planned to focus on Abrego’s motion for leave to serve certain discovery requests relating to how the government had decided to try to remove him first to Uganda and, later, to Eswatini (the former Swaziland). As the hearing approached, the government filed a brief opposing the discovery, and, on Oct. 1, also filed a separate motion seeking to stay all proceedings in light of the government shutdown.
At the hearing, Judge Xinis orally denied the shutdown stay motion. Then the hearing changed course in light of the government’s unexpected answers to questions about Abrego’s discovery requests. Its lawyers appeared to acknowledge that any attempt to remove Abrego to Eswatini was extremely inchoate. In response to Xinis’s questions, the Justice Department attorneys were unable to state whether the government had even contacted Eswatini about its proposal. At that point, Judge Xinis began to focus on Abrego’s earlier demand, as part of his habeas petition, that he was entitled to release under the principles of the Supreme Court’s 2001 ruling in Dadvydas v. Davis.
Ultimately, Xinis gave the government until 5 p.m. on Wednesday, Oct. 8 to file more evidence, if it had any, of the steps it had taken to seek Abrego’s removal to Eswatini. She also scheduled a hearing on the Dadvydas issues—and whether Abrego is entitled to release—for 11 a.m. on Friday, Oct. 10.
Lawfare Senior Editor Roger Parloff covered the hearing as it happened. Read Parloff’s report by clicking on the button below or by viewing his thread on Bluesky here.
Liveblog
At 10am, Judge Xinis will hold a conference in Abrego Garcia’s civil (habeas) case. I’ll cover for @lawfaremedia.org. Expected mainly to be about whether to grant Abrego discovery into, e.g., how the govt chose to try to send him Uganda or Eswatini (former Swaziland). ... /1
Govt opposes, saying Abrego’s claims should all be denied as a matter of law. Also says Judge Xinis should wait till Abrego finishes immigration court proceedings. On 10/1 an immig judge denied Abrego's request to reopen his case to seek asylum etc, but he could go to Bureau of Immig Appeals. /2
... Also, on 10/1, the govt asked to stay all proceedings because of the govt shutdown. The fact we’re here suggests Judge Xinis may be skeptical of that motion. ... /3
The goals of Abrego's habeas petition are multifold. Ultimately he wants release from custody. If he must be removed, he's "designated" Costa Rica. Says he can't be removed to Uganda or Eswatini without govt 1st trying the designated country. (Govt has offered him CR only if he pleads guilty.) /4
He's already won certain other requests in his habeas: Judge Xinis has ordered that he not be removed from continental US during the case & that he be housed < 200 mi from Greenbelt, MD. He's actually further away right now in Moshannon (PA), but crim attys, in NY & Nashville, not complaining. /5
Attys are seated in the courtroom. I'm in the media room--the jury assembly room--watching on a large screen. About to start. Clerk gives rules about no recording, broadcasting, etc. /6
Judge Paula Xinis on bench. Attys giving apearances. Andrew Rossman Simon Sandoval-Moshenberg Sascha Rand for plaintiffs Govt: Jonathan Gwynn, Bridget O'Hickey and one other. /7
Xinis going to take govt's motion for a stay first. J: things have been quite fluid, want to make sure we handle these important preliminary issues first. 1st, the stay: Bridget O'Hickey: nothing to say beyond what's in motion J: you're asking for stay but not offering release? O'H: [yes] /8
Rossman: we rest on papers J: (reading from defense papers) ... notes that there's Constitutional bar on suspension of habeas. I'm going to deny [the motion]. If i order the case to proceed, you become bound to follow and litigate [under provisions of the Anti-Deficiency Act]. i'm duty bound /9
J: ... to continue. let's move on to the discovery requests. Petitioner? Rossman: when last before this court Mr. Ensign represented to this court ... they can commit to choosing a 3d country within 2 weeks. It's now 6 weeks. ... still nothing J: no docs about intended removal to a 3d country? /10
R: we rec'd email saying govt planned to designate Eswatini, but no documents concerning his notice of reasonable fear. Mr. Abrego himself has not been notified of either Uganda or Eswatini. Rossman saying he's in the dark about what govt is doing vis-a-vis removal. Evidence Eswatini has never /11
even consulted. Issue of non-refoulement is main issue for Mr. Abrego. Eswatini govt -- their purpose is just to repatriate him. J: we dont know if it's even on the books. Eswatini says they haven't been approached? R: that's right. ... /12
last time before you, witness before you said practice is to lock him up first designate later. that's not how it appears. DOJ Bridge O'Hickey: with respect to Zadvydas claim-- J: if it's ripe, why are we waiting? have respondents reached out to Eswatini by formal request or ... /13
O'H: YH, we-- J: is that a no? O'H: respondents haven't formalized a poarticular plan for removal yet. gov'ts position is taht under Zadvydas govt has 6 months J: so answer is no? O'H: i can't make that representation. we dont know. J: then answer is no. /14
J: have you made any contact at all with Eswatini at all O'H: we've been waiting for end of his immigration case J: if you're not prepared , then the evidence is none. we have Immigration Judge who has found that removal to either uganda or eswatini is not imminent. /15
J: that's critical under Zadvydas isn't it?? O'H: i dont think so. we have presumptive 6 months J: assume i disagree with you . ... 6 months is rebuttable presumption, not bright line. fewer than 6 months can still trigger relief under Zadvydas. ... [Zadvydas is SCOTUS case that says ... /16
... DHS can't detain an alien indefinitely if there's no imminent chance of removal. presumption is no more than 6 months.] J: why should he be detained? Now Gwynn is speaking for DOJ: govt is in a damned if it does, damned if it doesn't position. ... /17
G: US is not imminently planning to remove mr. abrego garcia next week or as soon as IJ decision is issued. J: you conceded that. why am i not, under Zadvydas, supposed to ensure he's under stringent release proceedings. G: he is under removal proceedings right now. /18
J: if you're in those proceedings, why so difficult to answer basic questions about which 3d country if any you've begun those removal proceedings for? G: if Abrego commits to move for a stay of removal from BIA J: what is that? Now a 3d DOJ guy is talking (August Flentje?) /19
J: ... Abrego showed up at Balt field office and was detained because respondents planned to remove to 3d country. but nothing's been done. it looks like it's a trick bag with regard to Davydas 3d DOJ guy speaking: under 8 USC 1231 ... after alien is picked up -- govt given 90 days detention. /20
J: and he had that back in 2019 3d guy: begins when alien is in custody ... J: Abrego was. ... growing chorus of judges who say, no, that time frame doesn't keep starting over when a new administration decides it wishes to pursue 3d country removal. say i agree with those judges. /21
J: what do you have now to show his reemoval is imminent? it's not imminent. you want him here for criminal trial in january. DOJ atty: the email to abrego's counsel is one piece of evidence. J: any other evidence? DOJ atty: not that i'm aware of. J: the email is it. ... /22
J: If that email is it, then I can move to the Zadvydas question pretty quickly. DOJ atty: one other thing-- aliens get periodic custody review. J: informal interview where alien gets to ask, why am I not released? DOJ atty: automatic interview if alien is in custody for certain time. /23
J: so you have no notice Abrego's been given any [formal] notice. no evidence he's been given that review. Simon Sandoval-Moshenberg: I think you're speaking [at cross purposes]. we waived informal interview on advice of his criminal counsel. J: hasn't had periodic custody interview because /24
J: ... he hasn't reached the 90-day limit yet? DOJ atty: [yes, but not sure the exact day limit now.] J: Any other evidence of efforts to remove Abrego to 3d country [other than email to his atty] [DOJ atty is Mr. MOLINA, not Flentje. sorry.] M: i want to say there is. ... but evidence not /25
M: ... evidence is not in existence. [Judge saying that's not meaningful answer.] Sandoval-Moshenberg for Abrego: Zadvydas matter is fully briefed. our position is we can proceed to merits. with regard to removal related claims, there's absence of evidence. /26
S-M: he's got a grant of parole ... J: what's significance of that? S-M: valid parole thru 6/4/26. candidly we didn't lean too hard on that because govt can revoke it. but as we stand here, he's lawfully present in the US J: what does it do to order of removal of 2019? /27
S-M: parole is a form of lawful presence. were it allowed to run its course, he's lawfully present in US and allowed to stay thru 6/4/26. J: you ask me to consider that as part of Zadvydas claim but also independent ground for habeas relief S-M: 2d reason he's not presently subject to detention /28
S-M: with regard to Zadvydas claim. it does create 90 day presumption but only permissible purpose is to carry out that removal order. can't be used as punitive measure. or back-end measure for criminal detention when criminal judge has denied detention. /29
J: what comms have you had with DHS--if you want to remove him, let's get this done and go to Costa Rica? S-M: can't think of c'lly permissible reason to fight to send him across atlantic ocean when they could send him this afternoon to Costa Rica. Molina: we can make efforts to produce ... /30
Molina: ... other evidence of efforts being made by govt to remove Abrego. J: we can take a break for you to find out if there's more ... but if you haven't even made any diplomatic [overtures to eswatini] ... [DOJ attys conferring among themselves] /31
Molina: if court would afford us a short break we'll [make efforts to find out what other information we can provide]. 30 minutes? Judge Xinis allows 30 minutes. IN RECESS TILL ~11:15 ET. /32
The judge is focusing on Abrego's claim that under Zadvydas v Davis (2001), he should be released from custody right now. This is a due process claim. DHS isn't allowed to keep an alien in custody indefinitely. Removal must be imminent ... /33 supreme.justia.com
There's is a statute that says DHS is allowed 90 days of mandatory detention after an order of removal plus a discretionary period thereafter. But SCOTUS held in Zadvydas that there's a presumptive maximum of 180 days all together, absent extraordinary circumstances. ... /34
Here, there are questions about whether to count the period Abrego already was in custody in 2019, between about March and October. In any case, given that the govt does not even seem to have formally initiated the 3d country removal, Xinis isn't sure even 90 days is permitted. ... /35
(That explanation is approximate.) The discovery requests, which I thought would be the main focus of the hearing, appear to have fallen by the wayside today. I think that's because Abrego's removal to Uganda (now defunct) or to Eswatini appears to be inchoate if not hypothetical or chimerical /36
Also, the third DOJ atty, whose name I didn't get initially—it wasn't included on any of the most recents rounds of filings—is Ernesto H. Molina, Jr., the deputy director of DOJ's Office of Immigration Litigation. But he's a career guy who has appeared in the case before. /37
Clerk says we're about to resume. /38
Judge Xinis back on bench. J: respondents, where are we? Molina: i did reach out ... unable to reach anyone that could provide an answer. dont' know if it's because of govt furlough or other reasons. in light of that, i'd urge court -- court outlined 3 things as topic for today /39
Molina: 1. stay. 2. discovery. 3. TK Judge: but your arguments on discovery were responsive to this question: petitioners dont need discovery because no real removal looming. remarkable ot me you're saying you can't find a soul who'll give you additional info. that suggests there is none. /40
J: you raised in your motion privilege questions -- how can you know that when you dont know if there's any info to be had. M: that goes to discovery to put forward at evidentiary hearing in future. J: your response to why petitioners should not get any discovery. ... /41
J: Petitioner saying if they don't have anything, we don't need discovery. Bridget O'Hickey: we weren't coming to court today prepared [on this question] J: i'm asking for really basic info. you're the lawyer for clients. have you had any conversations? /42
Simon Sandoval-Moshenberg (for Abrego): we're ready to go forward now. O'H: [we're not prepared for merits hearing] ... Molina: this is case where court might hear testimony from field office director ... people making actual contact efforts to find a location J: find a location? /43
J: you said Eswatini M: well, things can happen ...to change that J: why not remove to Costa Rica M: he's said he fears there J: he said he feared it till he got reassurance against refoulement. Now he doesn't. Any efforts to button that up & have him go to Costa Rica? /44
Molina: we've not been informed on that. ... court can set a deadline to present whatever documentary evidence it can put up in lieu of evidentiary hearing. we need time to get it. J: petitioner? S-M: one moment. (conferring with colleagues) S-M: if govt's representing that there's more /45
S-M: evidence ... we'd ask to give them 48 hrs to produce it and hold a hearing Friday or so. J: same timeline i was thinking. at hearing govt can also call witnesses *with knowledge* & with notice to petitioner. ... /46
J: we'll get an order out today. something to effect govt shall produce evidence to petitioner by wed relating to any efforts to remove petitioner to a 3d country. including dates & times. geared to whether there's significant likelihood of removal to eswatini in reasonable future. /47
J: and I'm not going to make petitioner amend, simply because it's a moving target. hearing will be on Eswatini [because nothing else in on the table, Molina acknowledges]. S-M: we'd request 5pm deadline. J: on Wed, yes. and 24-hr notice for witnesses. /48
J: 11 am Friday? [Attys]: yes that works HEARING ADJOURNED. If you found this thread helpful, please consider donating to support @lawfaremedia.org 's trial coverage team: givebutter.com 49-end
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