A senior Immigration and Customs Enforcement (ICE) official on Thursday testified under oath that the agency has not yet decided where Kilmar Abrego Garcia would be deported if he is released from criminal custody next week.
“We don’t work cases not in ICE custody preemptively because our docket officers are worried about the cases they have now,” Thomas Giles, who manages ICE’s 25 field offices across the country, told a federal judge.
Abrego Garcia was returned to the United States last month after being mistakenly deported to El Salvador in March. He has been detained on human smuggling charges since his return, but he could be released ahead of his trial as soon as Wednesday.
A frustrated U.S. District Judge Paula Xinis had ordered the government to produce a witness to provide answers about the next steps for the man, as his lawyers push Xinis to issue an order preventing the administration from swiftly deporting their client again. Xinis is an appointee of former President Obama.
Giles finished testifying after several hours, but the judge has yet to hear the lawyers’ legal arguments before she issues a ruling. The hearing will resume Friday morning, a court official told reporters.
Giles testified that ICE has already issued an immigration detainer requesting custody if he’s released, which is expected to be honored. That would enable the transfer to happen in a “secure environment” within the Tennessee jail, Giles said.
But until that happens, Giles said ICE does not determine how to proceed with an individual’s immigration case.
“No decision has been made,” Giles said.
The administration has outlined two potential options for deporting him. Officials could look to lift the 2019 immigration ruling protecting Abrego Garcia from removal to El Salvador, which was issued over gang threats to his family’s pupusa business.
Or, the administration may try to deport him to a country where he has no ties, known as a third-country removal. “It can be a few days to a few weeks” before the country is identified, Giles said.
In their latest attempt to stave off Xinis from taking any action, government attorneys hours before the hearing agreed to abide by certain procedures before deporting him to a third country.
But Abrego Garcia’s lawyers said those guarantees don’t alleviate their concerns.
“It leaves open the critical question of whether my client will receive effective notice and an opportunity to be heard in a court before he is removed to an as-yet unidentified third country,” attorney Jonathan Cooper said.
The procedures provide two tracks.
If a foreign government agrees to take in migrants and assures they won’t face persecution, and if the State Department finds the assurances credible, the migrant can be removed without any further procedures. Giles testified that such is the situation for Mexico and appears to be so for South Sudan, where eight migrants with serious criminal records were deported on Independence Day.
For other countries, the migrant upon raising claims of persecution is entitled to a credible fear interview with an immigration officer.
Abrego Garcia’s lawyers also raised concerns about where he would be held in ICE custody before any deportation.
After his March arrest in Maryland, officials swiftly moved him to a Louisiana facility before deporting him to El Salvador. Abrego Garcia’s lawyers want him returned to Maryland this time if he’s placed in ICE custody.
Giles testified the decision is made on the basis of bed space availability, which changes every day, so there’s no indication of where Abrego Garcia would end up. On cross-examination, Giles conceded he did not ask the relevant field office whether they had made any preparations given the high-profile nature of the case.
And answering questions from the judge, Giles acknowledged ICE does have some discretion and may take into account the fact that Abrego Garcia still has a pending criminal case in Tennessee.
“It’s a possibility it could be anywhere in the United States,” Giles said.
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