Judge Xinis Holds Status Conference in Abrego Garcia. v. Noem et al
Published by The Lawfare Institute
in Cooperation With
On Monday, Aug. 25, Judge Paula Xinis held a status conference in Kilmar Abrego Garcia v. Noem et al., a newly-filed lawsuit in which Abrego Garcia is challenging his impending removal from the United States to Uganda.
During the hearing, Judge Xinis directed the parties to meet and confer on a proposed briefing schedule ahead of an evidentiary hearing on Abrego Garcia’s habeas petition. The judge also said that she would extend an existing order barring his removal from the United States at least until briefing on the petition is complete. The parties’ proposed schedule is due by 10 a.m. ET on Tuesday, Aug. 26.
Judge Xinis further ordered the government not to transfer Abrego Garcia from the Virginia facility where he is currently detained.
Lawfare’s Anna Bower covered the hearing as it happened. Read it by clicking the button below or view the thread on Bluesky.
Liveblog
HAPPENING NOW: At 2:00 p.m. ET, Judge Paula Xinis is set to hold a telephone conference regarding Kilmar Abrego Garcia's newly-filed lawsuit challenging his removal to Uganda. Abrego was detained by ICE earlier today. I plan to live-post the hearing for @lawfaremedia.org. Follow along ⬇️🧵
Here we go. Judge Xinis is on the line. Case is called: Abrego Garcia v. Noem. Simon Sandoval-Moshenberg and Andrew Rossman are here for Abrego. Drew Ensign returns for DOJ.
Xinis kicks things off: Abrego has filed new case. There is standing order in addition to my previous order that prevents his deportation from the continental US. That expires Wednesday. But we're going to need to hear more. I'm willing to move as fast as is just.
In my mind, likely evidentiary hearing this week. I think this an be accomplished as long as everyone operating in good faith. I think we plan for Friday at 11 am hearing. I think I should extend TRO at least that long as is necessary...There appears to be violation of 8 USC 1231(b)(2)(a)(ii)
Xinis: There's been no assurances from Uganda as far as I know that Mr. Abrego would be able to move about freely, not be refouled (sent back) to El Salvador...In contrast to what assurances Costa Rica gave, that's significant. So that demonstrates likelihood of success on merits...
Xinis: Government can right that ship by showing me if Uganda has made those representations of non-refoulement, etc. But at least at this juncture, I have nothing that demonstrates that the government is operating in good faith...
Xinis: It has been reported to the criminal court in TN that Mr. Abrego is being deported to Uganda because he exercised his right to trial as opposed to pleading guilty to criminal charges...In my view cannot do that, cannot condition relinquishment of constitutional rights in that regard.
Xinis: So that's my preliminary view. With respect to the schedule, does that work, Mr. Ensign? Ensign: I'd want to talk to client, but my understanding is that removal is not imminent. Removals take some time and that is not likely to occur in that window where a TRO would otherwise be in place
Xinis: And you understand there are currently two injunctions in place that prohibit his removal Ensign: We understand that both of those prohibit removal of Abrego from US during window of those orders Xinis: I'm taking that as officer of the court as full intent to abide by those orders...
Xinis turns to Moshenberg: What I'm hearing from Mr. Ensign is that what might make sense is for you all to meet and confer offline, and if you can arrive at a mutually agreeable briefing schedule and hearing schedule, then you can propose schedule to me...I might tinker with hearing date
Sandoval-Moshenberg: We can meet and confer this evening, and I'm sure we'll be able to file a proposed briefing order by tomorrow morning. There's one other matter I want to bring to the court's attention. It's sort of an interim matter. Xinis: Sure, one second.
After Xinis instructs the parties to meet and confer on the schedule, Sandoval-Moshenerg addresses the additional matter. He says they've been notified that Abrego is now in Virginia. They've previously had issues with client being moved and not being able to get to hearing from Louisiana, Texas etc
Sandoval-Moshenberg asks Xinis to order that the government keep Abrego in detention within 200 miles so that his presence at hearing can be facilitated. Xinis says they can meet and confer with government on that, but Moshenberg responds that there's concern government will move him tonight.
Xinis asks Ensign if he can assure that Abrego won't be moved tonight. I'm happy to speak to my client, but I don't I don't have authorization to do so at this moment, he says.
Xinis to Ensign: At least until we have a schedule set, I will order that he not be moved from where he is now, principally to have access to both criminal and habeas counsel. You let you know in the morning where your clients stand on that and I'll take it from there.
Xinis asks Ensign if her oral pronouncement on that is sufficient or if she needs to issue a written order. Ensign says oral order is sufficient and he will relay that to his client.
Ensign asks the judge if Abrego's counsel can clarify whether he has attempted to re-open immigration proceedings bc it will impact the arguments the government makes in its filings.
Sandoval-Moshenberg says that no motion to re-open has been filed at this time but he has served a reasonable fear notice on the government (requesting a credible fear interview prior to deportation to Uganda).
Sandoval-Mohenberg: If the government is sort of essentially stipulating that a motion to reopen is the proper procedural mechanism here...I can speak with Mr. Ensign about that this afternoon.
Sandoval-Moshenberg: Part of the issue here is that we're still not 100% clear as to what even the government's position as to what the process is. So to the extent that we can clarify that tonight, that'll be very, very helpful.
Judge Xinis: Ok, I'll look forward to your filing on the proposed schedule tomorrow. Shall we say 10 am? The parties agree. Ok...Anything else? Ensign says for the record that DOJ objects to the court's findings but will address basis in forthcoming filing.
"See you soon," Judge Xinis says to the parties. And we're done. Thanks to all who followed along! If you appreciate live threads like this one, I hope you'll consider supporting our non-profit newsroom. See you soon! givebutter.com/journalism
