An Immigration and Customs Enforcement official said that if Kilmar Abrego Garcia, the Salvadoran man who was mistakenly deported to El Salvador in March, were to be released from pretrial detention, ICE officials have not determined where he would be sent.
“There’s been no decision made, as he is not in ICE custody,” Thomas Giles, assistant director for ICE enforcement and removal operations, testified in federal court in Maryland Thursday. Giles was in court to comply with U.S. District Judge Paula Xinis’ order earlier this week that someone with firsthand knowledge of any third country Abrego Garcia where he could be deported if he were released from custody.
But Giles said ICE would take custody of Abrego Garcia “as soon as possible” and the transfer would take place in Tennessee, where he’s being detained before his trial on human trafficking charges. He said that the Salvadoran native’s detention location would be “based on bed space availability,” and added that ICE lacks the resources to work on the case until he is in ICE custody.
Giles told the court that once that occurs, a decision about Abrego Garcia’s removal would be made within “a few days to a few weeks.”
He also said Abrego Garcia would “receive a notice of removal…and will get a fear interview if he claims fear of return,” if he has a fear “of being returned to a third country.”
Abrego Garcia’s attorney, Sascha Rand, sought to cast doubt on the reliability of Giles’ testimony, eliciting from him that he had no involvement in Abrego Garcia’s case until this week. He said his prior knowledge of the case was based on media reports, until ICE issued an immigration detainer in June to local officials in Tennessee, after Abrego Garcia’s return to the U.S. to face criminal charges. The chargest stemmed from a traffic stop in 2019.
Under Rand’s questioning, Giles also said that he had never been involved in a successful third-country removal and knew of no other deportation officer in a similar capacity who had been involved in one.
Earlier Thursday, the Justice Department said it was willing to agree not to remove Abrego Garcia to a third country without following due process, and that it would not remove him to El Salvador without first reopening his immigration case and terminating the court order that bars his deportation to El Salvador.
But Abrego Garcia’s attorneys told U.S. District Judge Paula Xinis that they didn’t agree to the government’s stipulation because it would not guarantee him advanced notice of his removal or a court hearing in the proper jurisdiction before removal.
On Monday, after denying the government’s motions to dismiss Abrego Garcia’s lawsuit over his deportation, Xinis asked the government for a witness with “firsthand knowledge” about where he would be deported if he were to be released from custody. She also said Abrego Garcia should be given “a reasonable amount of time” to challenge his removal.
She expressed some frustration during that hearing with the government’s lack of information about Abrego Garcia’s short–term fate. “It’s like trying to nail Jello to a wall trying to find out what is going to happen next week,” Xinis said, adding that it remains within her jurisdiction to ensure that Abrego Garcia is “not spirited away again” to another country without due process.
Xinis said Monday the government could “clarify all of this” in a “binding way,” if it stipulated that he would receive due process — that he would not be removed without notice and would have the opportunity to be heard before a court.
On Monday, Justice Department attorney Jonathan Guynn told the court the government had not yet decided whether to remove Abrego Garcia to a third country or to challenge a previous court order that bars his removal to El Salvador.
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