'Three strikes, you're out': Judge roasts failed bids to deport Kilmar Abrego Garcia

A judge could decide to release Abrego If the Trump admin can't prove good faith efforts to deport him.

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It’s close to “three strikes, you’re out” for the U.S. government’s efforts to keep Kilmar Abrego Garcia locked up in immigration detention.

That’s what a federal judge said toward the end of a daylong federal court hearing on Friday, after a high-ranking Immigration and Customs Enforcement official made clear that the government never got close to deporting Abrego to Uganda, Ghana or Eswatini.

Under the Supreme Court’s Zavydas precedent, the government can only keep someone in immigration detention if they demonstrate good faith efforts toward their eventual deportation. After daylong testimony by a high-ranking immigration official, U.S. District Judge Paula Xinis said the record shows none of those efforts, but she didn’t issue an immediate ruling.

“Holding hostage”

Since Abrego’s release from criminal custody in August, immigration officials initially offered a plea deal that would allow him safe passage to Costa Rica in exchange for a guilty plea. The Costa Rican government guaranteed to protect Abrego’s rights and not send him back to El Salvador, where he fears persecution.

After Abrego rejected the plea offer, the Trump administration threatened to send him to Uganda, Eswatini and then Ghana.

“Effectively, they are holding hostage passage to Costa Rica ... in order to induce him to plead guilty,” Abrego’s attorney Andrew Rossman said during oral arguments. “What that reveals is that they aren’t intending to remove him in a lawful way.”

Over the course of daylong testimony, the government’s witness John Schultz, the deputy assistant director from Immigration and Customs Enforcement’s Enforcement Removal Operations, confirmed that all three of those efforts have failed so far. Uganda rejected the request earlier this year. The other two countries, Ghana and Eswatini, released extraordinary public statements revealing that the Trump administration never asked them about accepting Abrego — and rejecting the requests.

On the morning of today’s hearing, Ghana’s foreign minister Sam Okudzeto Ablakwa wrote on social media that his government “directly and unambiguously conveyed to US authorities” that his country is “not accepting Abrego Garcia.” The Department of Homeland Security sent Abrego a formal notice of their intention to send him to Ghana on Thursday.

Cleaning up the incident, Schultz said that the government “prematurely” sent Abrego that notice.

“I believe the field office was trying to get ahead of things, so that if Ghana did say yes, removal would be quicker,” Schultz testified.

Rossman noted that the government is now “0 for 3,” adding “three strikes, you’re out.” Judge Xinis gave a different meaning to the same expression later in the hearing, expressing frustration about government witnesses failing to provide answers: “We’re getting close to three strikes.”

“Very troubling”

Before Friday’s hearing, Judge Xinis ordered that a knowledgeable government official testify about attempts to deport Abrego to Costa Rica, but Schultz had no answers on that subject.

“You come today with a witness that knows nothing about Costa Rica,” Xinis said, dressing down Justice Department attorney Drew Ensign.

Abrego’s lawyers argued that the government had the clearest path to deport him to Costa Rica, which both parties to the arrangement found acceptable. Abrego designated Costa Rica as his preferred country of deportation, and the Central American nation promised in writing not to send him to El Salvador.

Ensign falsely claimed that Abrego told an immigration judge that he feared deportation there, but Judge Xinis found that the record showed the opposite.

“That’s very troubling to me,” Xinis told Ensign.

Asked by the judge whether Abrego would consent to deportation to Costa Rica, Rossman said yes. The attorney added that the government’s refusal to take that option reveals its priorities.

“The government has not, and is not currently, detaining Mr. Abrego for the purposes of effectuating his eventual removal,” Rossman said.

Ensign hedged when asked whether the government would try deporting Abrego to Costa Rica. He said that he would convey the possibility to the decision-makers, but the judge suggested that the clock is ticking.

“While I’m writing [my ruling], if I don’t get a yes, I’m going to take this as a no,” Xinis said.

Friday’s hearing fell exactly six years to the day since Abrego obtained a 2019 court order blocking his deportation to El Salvador.

In March, the Trump administration flouted that order by whisking him on a plane to El Salvador and then brought him back to the United States on an indictment after the Supreme Court ordered his release. Since winning his release from criminal custody, Abrego was briefly reunited with his family before being placed in immigration detention. Rossman said Abrego’s defense team has been playing “Whac-a-Mole” against Trump’s constantly shifting plans.

“It would confound the imagination of Victor Hugo to describe what he has been through,” Rossman said.

On Friday, Abrego also had a status conference in a criminal case in Nashville, Tenn., where a federal judge indicated he will consider evidence of vindictive prosecution next month.