Abrego v. Noem: A Hearing Diary for Nov. 20

A hearing is about to start in Abrego Garcia's civil case. I'll try to cover for @lawfaremedia.org . Colleague @annabower.bsky.social might be joining. Among other things, govt is seeking to dissolve Judge Xinis's preliminary injunction preventing Abrego from being removed immediately. /1

We've been a little swamped here at @lawfaremedia.org so I'll do best I can. Little less prepared than usual. Judge Xinis wants to hear testimony from John Cantú, an ICE official, who said in a sealed declaration that Costa Rica now won't accept Abrego. Govt wants Cantu's testimony sealed. ... /2

Parts of this hearing could be quite technical. Govt argues that Abrego's claims at this point should be handled in the DVD class action in Massachusetts, or are barred by various "jurisdiction-stripping" statutes that bar district courts from getting involved. /3

Judge Xinis now on bench. counsel give appearances. Cantu is present. Xinis says this is probably last hearing on Abrego's habeas. First she wants to rule on some pending motions to seal. /4

She'll take open court testimony from Cantu followed by sealed testimony if necessary. Then she'll hear the motion to dissolve the preliminary injunction. She's now deciding whether certain exhibits should remained sealed. Andrew Rossman, for Abrego, is not fighting sealing. /5

Judge Xinis concerned that there's often over-sealing. Thinks some of these docs can be redacted. But some are diplomatic notes or documents Secy of State Rubio prepared, which she understands should be sealed. She's taking the matter under advisement. Wants attys to try to redact. /6

DOJ atty Jonathan Guynn points out some sealed info is about Abrego's personal background which he might want sealed. Xinis now says she'll unseal Cantu's declaration. She doesn't see any privileged info in it, though it may reference such info. DOJ atty Molina says govt's okay with unsealing. /7

So ECF 75-16 (Exhibit S) will become public, I think. Turning to testimony from John Cantu DOJ atty Guynn will do a quick direct and turn John Cantu over for cross-examination by Abrego's attys. John Edward Cantú Guynn: where are you employed? C: US ICE Enforcement & removal operations (ERO) /8

Acting asst director of ERO G: how long as acting asst director for ERO? C: 3.5 weeks i serve in support of removal ops throughout country. G: how long for govt? C: 1997 G: working for DHS predecessor INS? C: yes. Guynn now taking him through his previous positions in INS and ICE since 1997 /9

In May 2021 became field officer director for Phoenix ERO. G: when are aliens sometimes removed to 3d country rather than country of origin? C: when subject not able to return to his or her country. Or home country won't accept them. G: how does ERO ID a 3d country C: work with Dept of State /10

C: Dept of State chooses teh country. G: do you work for Dept of State? C: No. G: what's Abrego's [immigration status.] C: he has final order of removal with withholding to El Salvador Guynn handing up exhibit to court. G: recognize? C: yes, dec I submitted to court. /11

G: what country has ERO ID'd as Abrego's country of removal? C: Liberia G: how did ERO choose objectino --foudnation C: dept of state told us G: has DOS shared docs about how Liberia was chosen. C: yes. i rec'd email from DOS. G: what assurances has Liberia provided? /12

C: Liberia has provided assurances they will not torture or persecute and will abide by int'l laws and conventions they've signed onto. G: has DOS assessed those assurances. C: assessed to be credible G: what assurances with respect to Abrego specifically? Obj foundation? Judge: do you know? /13

C: yes, maam i saw it in a diplomatic note G: what's your understanding of those assurances C: They've assured DOS they will not persecute torture or refoul Abrego to El Salvador. G: can i approach? (he wants to clear something currently under seal) [sidebar] /14

Guynn: Mr. Cantu, if ERO had greenlight to remove Abrego from US, what is its plan? C: we'd schedule commercial flight to Liberia or charter via ICE Air. G: where to C: Liberia G: referring to your dec, reads ¶4: 'i've been in touch with DOS. on 8/21/25 ... learned govt of Costa Rica provided /15

written assurances ... that were nonbinding. G: which DOS personnel did you communicate C: a DOS atty G: who else? C: no one else G: what's your understanding of ultimate source Judge: do you know source? G: do you know where DOS atty got info? C: yes. dep secy of state /16

Judge: how do you know that C: i believe the atty told me that verbally G: did you participate in discussions with Costa Rica? C: no. G: see in ¶4 where it says "certain understandings"? what are those C: i dont know. G: see the word "contingencies"? what are those? C: do not know /17

G: now ¶5 ... 'due to interim developments ... DOS now assesses Costa Rica would not accept Abrego at this time' what are the interim developments? C: don't know Judge: did you write this dec? C: yes, with help of counsel Judge: your words or someone else's C: in doc given me by atty /18

Judge: was it taken from an email with no further discussion? C: no further discussion G: what does DOS think Costa Rica will not accept obj - foundation G: who knows these details about US negotiations with Costa Rica C: DOS Judge: who is the atty there C: Carl Anderson (phonetic) /19

G: continues reading: DOS has advised Liberia is only state that will currently accept Abrego C: yes G: what has DOS told you about removing Abrego to Costa Rica C: not an option at moment. Sascha Rand will do cross for Abrego /20

Sascha Rand: you testified on final order of removal. you know what one looks like, dont' you? C: yes R: have you seen one with respect to abrego? C: i have not. R: how do you know one exists? C: it was discussed R: belief is based on representations made by counsel? /21

Judge: how do you know that C: counsel J: DOS counsel? C: now counsel [here at counsel table] R: you spoke to Mr Anderson around 11/6? C: i think 11/7 R: in person? C: no a Teams meeting R: how long C: 5 minutes R: did you ask any quesitons? C: no R: he just told you things C: correct /22

R: then he sent you email with draft declaration? C: no. Anderson sent me email with message. shared with me during teams chat. R: that included the verbiage he wanted you to put into the declaration C: he gave me verbiage from dep secy. R: is that the language set forth in your dec /23

R: the verbiage you rec'd from Anderson on 11/7 in email, is that the verbiage that apperas in ¶4, 5, and 6 of declaration [you signed] C: yes R: verbatim correct? you didn't change a comma? obj overruled C: i wrote 4, 5, and 6. it's not verbatim. but other verbiage -- 1st part of ¶4 ... /24

... all of that. it is verbatim what he said there. i put some other stuff in there. the "assurances," "nonbinding" "contingencies"--that was in there as well. that was in the content provided to me. Entire ¶5 and entire ¶6 were provided to me. R: did cover of email include other info? C: no /25

R: anything in this language you wanted to understand or clarify? C: no. R: did you want to ask "what sensitive discussions" obj - argumentative R: fair enough. did you understand you were allowed to ask questions? C: yes R: none came to mind C: no, no questions /26

R: if i asked you "what sensitive discussions," what contingencies were, you have nothing to offer, correct. let's do it this way ¶4 of your declaration, you say "as part of this process" you're referring to the 5 minute call , right? C: [yes] R: you had no involvement with Abrego before 11/7? /27

C: correct R: before 11/3 you weren't even in this acting directorship role at ERO, correct? C: correct R: 4 days later, only involvement in Abrego matter was this 5 minute teams call C: correct R: then you say you were in touch with DOS personnel. anderson was only one, right? C: correct /28

R: did you make any inquiry of anyone, outside attys to my left, about abrego? C: no R: asked to do so? C: no R: do you know if your here as designee to bind and speak on behalf of DHS and ICE on questoins about Abrego's potential removal to Costa Rica C: yes /29

R: you do understand that? or did no one explain that to you. C: i'm here representing ERO. not sure if that means DHS. Judge: any discussion of my order saying witness will bind the department? C: no YH R: you signed your dec electronically. wwere you in office or home? obj - C: at hotel /30

R: what did anderson tell you about dep secy of state landau's conversations with costa rica. C: he told me he had info to pass to you. and he put it in the email /31

R: this teams meeting you had with Anderson -- was is just him reading somethign to you saying i got this from dep SOS & he forwarded it to you. sum and substance C: yes R: did you know dep secy of state was landau C: not awware of that R: his name wasn't even mentioned. C: [correct] /32

R: you can't tell me whether anyone in govt has contacted costa rica since August 2025. Judge: any personal knowledge C: no R: only communications with DOS were Teams meeting and email C: right R: you have no info about ¶4, 5, and 6, there's nothing you could offer me objection /33

obj Judge: this witness has zero info about content of info. No shade on you Mr. Cantu. you'v e been very candid with teh court. R: do you know who would have more info at DOS about sum and substance of your declaration? that we could go talk to. /34

C: no sir. as far as i know I'm only one he talked to. R: were you removed from your position at Field Officer in Phoenix. C: was already [slated for] TDY. [temporary duty assignment] R: when did you learn you'd become asst director? obj - OR C: week of 10/24 R: spent a week not having a post? /35

C: no, i did the job in Phoenix. R: when you left, at same time, were 4 other field officers also moved in DHS obj - relevance? [sidebar] /36

[lengthy sidebar continues, with Sascha Rand and DOJ atty Jonathan Guynn speaking to Judge Xinis.] /37

resuming Rand: do you understand why you were asked to no longer be head of phoenix field office? C: asked to come on TDY to assist. then notified that position would become permanent. i dont know why? R: aware if 4 other heads of ERO field offices changed position in late october? C: yes. /38

R: know why? C: i dont R: when were you told you'd be acting director at ERO C: as acting? R: how long will you be acting? C: 120 days. then position will become permanent. R: this is probationary period? C: no, temporary detail R: when was idea of doing this declaration 1st raised with you? /39

C: after the meeting with mr. anderson R: 1st time you heard about this declaration the morning of 11/7 C: no, it was in the afternoon. R: who told you about this meeting? C: office of principal legal advisor R: who C: Jorge Montecino. chief over one of divisions R: how did he contact you? /40

C: called me afternoon of 11/7 ... over teams R: what did he say obj - atty/client priv R: how long was conversation? C: about 2-3 minute call R: was he providing you with legal advice obj - calls for legal conclusion OR C: not sure. R: anything involving law he was discussing? C: no /41

C: he was telling me there'd be a meeting with this state dept official. asking me if i'm available for a call. ... the call was about an hour-and-a-half later R: who else was on teams call with anderson? C: thijnk it was him and maybe another atty from OPLA. office of principal legal advisor /42

C: OPLA with ERO, not DHS ... [it was] me, Anderson, Jorge, and another lawyer from ERO. R: anyone else say anything? C: no. R: one way converesation. just Mr. Anderson talking. C: yes R: looked at august 2025 assurance letter from costa rica? C: pretty sure i saw it. /43

Rand now handing Cantu an exhibit. R: have you seen this? C: yes R: second ¶. ~govt of Costa Rica intends to provide refugee status to Abergo.~ R: do you recall whether that assurance exists with Liberia? C: don't recall that. R: in your role as head of FO at Phoenix, ... /44

R: ... have you dealt with aliens from Latin America? obj OR R: aware of removing anyone from latin america to african countries in your experience? C: we've done that before. couldn't give you a date. maybe in past 6-7 months. R: prior to that in your decades of experience? C: cannot recall one /45

His testimony is done. no redirect. no sealed testimony. Judge Xinis is going to take a 15 minute break and then hear oral argument. /46

Now resuming. Xinis back on bench for argument. will start with Andrew Rossman for Abrego. Rossman: 3/12/25 Abrego taken into custody & removed to El salvador where prote cted by court order against being removed to. imprisoned. beaten. 5 orders & 3 months to get him returned. /47

Govt came in and told hyou they were powerless to bring him back. since that time we first came into this court, there's been unrelenting cmapaign to deprive him of due prodcess. to retaliate against him for asserting his c'l rights. make him poster child for broader agenda Adm has /48

I'm going to talk about treatment of Abrego & treatment of this court. history shows bad faith. shows malice— Judge: this course maybe relevant to Abrego I case, but i'd like you to focus on 5 counts are your principal ones & why & whether this court has jurisdiction to provide relief /49

Rossman: a\nd that's where i'm going. due process claims of habeas have 3 parts Judge says thing she's really focused on ... the absence of an order of removal. there is none in the docket. R: we've not seen one. we've seen order of withholding. the 2019 order proceeds as if there'd been one. /50

J: that argument in my view guides this case. guides the jurisdictional arguments. legality of wht govt did and what it's trying to do now. how do i say removal is reasonably foreseeable if there's no removal order? R: that's right. critically important. due process rights accorded to all /51

Rossman ... includes right to be heard before removal to a 3d country -- JGG, for instance -- in 2019 there was only one country govt sought to remove abrego to. withholding blocked that path. govt made no effort to remove him to 3d country. no opportunity to raise hand and designate another /52

R: ... everything has to start with final order of removal. not overly fastidious of us to insist on J: govt has quietly said it's the withholding of remov al order. they cite that opinion. that's only one ever given. makes oblique reference to removal to guatemala R: yes glitch in opinion /53

Judge: what do you say to argument: can't have withholding without an order of removal? R: that assumes to much. in convention against torture case we cite ... Riley case: (phonetic) wasn't sufficient to reference it, need to reference final order of removal /54

Judge: clear in 4th Circuit that one cannot substitute for other. but i think govt will say, you can't make that call cause you don't have j.d. Statutes that deprive you of j.d. to review final orders of removal--what's your response. Rossman: first level of response-- Mr. Jonathan Cooper /55

R: ... will address more particular questions but YH certainly has j.d. over due process violations. if you want to pivot immediately to jursidictional questions i can give you mr. cooper J: so much pivots on whether there's an order of removal. there's also "parole." /56

J: i think i've got to answer that first. if i have j.d. to take judicial notice of record, and there's no order of removal, than at a minimum Abrego is entitled to certain relief. R: that's right. entire structure govt has built crumbles if there's no final order of removal /57

R: most of our brief is about--even if they have one, there's legions of reasons there are violations of due process. i can unpack that or we can focus on jurisdiction. J: let's unpack that R: relief--we think relief should be granting petition. Abrego should be released. at minimum, /58

R: ... he should be provided conditional release. Give govt short period to show they have c'l valid basis to remove him. if they want to put him on next plane to costa rica, [fine with us.] J: govt saying costa rica saying no. i dont have any evidence of that, frankly. R: that's the problem /59

R: if govt fails to prove Costa Rica is off the table, our perspective we got a triple hearsay affidavit with zero evidentiary value. you ordered to produce a knowledgeable witness. he was a nice witness. but no knowledge. J:i thought govt's 1st level point was: your time to choose C.R. was ... /60

Judge: ... 6 years ago. now it's too late. Rossman: that would have to imagine that it's consistent with due process to reqwuire client who having rec'd withholding to one and only country govt sought to remove him -- imagine Abrego would have crystal ball that he'd be asked one day to go /61

... to Uganda, or Eswatini, or Ghana, or Liberia & then designate a country where he was willing to go. Judge: if you have that conversation in first instance, because there is no order of removal -- how can we hold abrego responsible for not designating country then R: i wholeheartedly agree /62

Rossman: ... without that order, you dont have effective functioning of the statute. Abrego's deprived of protections congress afforded him to make a designation. the language is "shall" not may. mandatory. only override: country unwilling. there's been a failure of evidence on that. /63

R: only other exception: prejudice to the US. clearly doesn't apply since govt went to Costa Rica and got assurances when they were trying to get him to plead. to complete the menu, govt takes position, pursuant to 3/31/25 memo, that can send him to Liberia so long as their own official ... /64

Rossman: finds no reasonable fear. there has to be review by an immigration judge -- that's bear minimum on procedural level in terms of due process. primary request: release. you could condition it on govt providing c'l valid basis of removal. J: i dont understand R: if govt does not do X ... /65

... 2 within 3 days -- like agreement to take him to Costa Rica -- then he will be released. give govt one last clear chance to do it right way. J: if i find no order of removal on docket-- R: he should be released. J: conditional -- should be given 3 days to get an order R: well, i don't know /66

R: ... about that. J: I remember Reuveni telling me on first day--'you're not gonna like it but' he didn't have a document called an order of removal. R: that hasn't changed. ... could give govt one last chance -- 3 days -- to do it right way. alternative minimum: injunction prohibiting ... /67

R: ... removal without according him immigration review process before he can be removed. they way i'm thinking of it. you dont need to reach the alternative minimum grounds if he's released. But Rossman wants to consult with co-counsel. Judge: if i grant relief, no basis to enjoin further /68

Judge: ... i dont see ongoing vitality to injunction if i accord the kind of relief you're talking about R: not sure that's right. Maldonado in DNJ. different issue. but court granted writ, released petitioner, but still enjoined govt from rearresting the person under the contested portion of /69

R: ... statute [Rossman now consulting with co-counsel Simon Sandoval-Moshenberg about this.] Sandoval-Moshenberg will address court directly. S-M: relatively common in Zadvydas petition for court to order release with no re-detention unless such-and-such. /70

Judge: thing i'm stuck on is to have such a fundamental absence in the record. different posture to be in. no order of removal. until govt comes up with one. what if they do get one. S-M: if no removal order, habeas should be immediate. immediate release. 7 months of litigating. no need for more /71

Judge: in Abrego I my order was to restore Abrego to status quo ante. return to MD and have his immigration case continue in MD. you moved to reopen and it got transferred outside my j.d. so after immediate release, & a notice to appear [materializes] ... /72

S-M: the existence or non-existence of order of removal is something you have j.d. to enter. when his valid parole expires, or they revoke it, he could receive a new notice to appear. The other option govt has, if willing to concede error--they could file motion to re-open. /73

Judge: what's going on with immigration case -- S-M: motion to reopen we filed seeking asylum, that was denied by immigration judge. we filed appeal to bureau of immigration appeals. it's not yet issued order. /74

Rossman: I'd just say, putting aside absence of order of removal, we think we've won overwhelmingly on the 1231b2 claim. that merits a grant of the petition. would not have qualms with giving govt 3 days to remove him to costa rica, which would [moot the issue]. /75

Rossman passes lectern to Jonathan Cooper to discuss jurisdiction and DVD Cooper: govt reads 8 uSC 1252 to create a jurisdictional black hole that [gives aliens no rights against being removed to 3d countries]. 2 bedrock principles. strong presumption in favor of judicial review of agency acts /76

other is presumption in favor of providing habeas jurisdiction. SCOTUS has rejected this notion in cases like Reno v -- Judge: but govt ssaying a lot of what you're asking for is substantive review. particular country. really not in this court. idea was to eliminate habeas & have those ... /76

Judge: ... be determined by Court of Appeals (reviewing BIA and immigration judge). Cooper: Abrego challenges process. congress has never withdrawn review for those kinds of claims. that's what scotus said in Reno v AADC and [other cases]. /77

Cooper: you asked Rossman, is there j.d. to decide if there's a removal order in the record. question in DVD class is that there must be an order of removal. for him to be in that class, govt must produce order of removal. /78

J: they'll say order of withholding assumes & subsumes order of removal C: [yes, but it's telling that 7 months after Reuveni told you about that absence, govt has still not come up with one.] [he cites an 8th Circuit case he says requires an actual order.] /79

Cooper: with respect to DVD, we submit that it does not foreclose Abrego's claims 1. no final order of removal on record 2. his claims are very different. he raises challenges to his detention. 3. procedural challenges to 3d country removal process, including unique challenges ... /80

Cooper: ... the failure to comply with his designation of costa rica. unique procedural challenges not covered lby DVD 4. even if he were a member of the class, 4th Cir has held that class actions are exception to "splitting" concept. Also think Abrego would have mandatory right to opt out /81

Cooper: ... of the class. J: and govt has argued that the DVD class is an improper class Cooper: [yes] we cite to Philips Petroleum case ... members of class involving monetary claims have due process right to opt out. should be true if you're being deprived of life & liberty as well. /82

Cooper now addressing 5 USC 1252g. (One of the jurisdiction stripping provisions.) it's narrow. applies only to discretionary decisions by AG in 3 limited situations. commencing proceedings, adjudicating cases, executing removal orders. /83

Abrego is challenging detention & processes for 3d country removal. [He cites rulings to effect that such issues not barred by 1252g] Next govt goes to 8 USC 1252a5 and b9--idea that these issues need to be funneled to US Court of Appeals (after immigration court & BIA). /84

Cooper makes similar argument as to those--challenges to detention or 3d country removal processes not covered. next govt talks about 1252a4 and FARRA section 2242d. those are similar. talk about challenges to immigration judge's resolution of Convention Against Torture claim. /85

Cooper: Abrego not challenging a CAT decision. Judge: ... he's not getting enough process to even tee that question up Cooper: exactly. last j.d. bar: 1252a2b, about denials of dlscretionary relief. nothing he's seeking here is discretionary. /86

Cooper: for all those reasons, none of j.d.'l bars apply here. Drew Ensign for govt: start with final order of removal piece. there is one. Judge: there's 3 aspects of that order. none says order removed to any country. doesn't say order removed. Ensign: not in so many words. /87

Ensign: it says application to asylum is denied. J: i am just interested in finding the order of removal. not here to fight on whethe IJ was right. this doc says denying asylum because of time it took Abrego to bring it. E: correct, but context of order is imoprtant. he conceded removability /88

J: point me to the language that is the order of removal. E: the withholding order necessarily would only exist bercause he otherwise had been determined removable. final order would hvae issued, and did by operation of law by rejecting his only defense--asylum. /89

J: there's ample law that says you can't just consider withholding a removal order by operation of law. judge wilkinson said it well. in opining on imporatnce of this question in [missed it] 943 f3d 205 : ... /90

Judge: when IJ grants withholding of removal, an explicit order of removal must be included in the decision. for 2 reasons. matter of simple logic. [she reads from Judge wilkinson's decision] Judge: jurisdiction begins with the order. why should i do it differently here? /91

E: [makes same argument as before] he's adjudicated all issues and by operation of law, by adjudicating abrego's only defense, this is a final order of removal. J: you're argument is not that the document says that. you're saying by operation i should construe it that way. E: [yes] /92

E: [E saying that the order in total context leads to that conclusion] ... Judge & Ensign now having back-and-forth I can't follow. J: This doesn't look anything like an order of removal. doesn't designate the country. does it? E: it does not. /93

J: it granted withholding to Guatemala. let's not gloss over that. people make mistakes. but notably in conclusion, said DHS hasn't shown changted circumstances in Guatemala. he got the country wrong. so how do i say what country he's been removed to. E: [there are ways to fix these mistakes.] /94

J: i'm just here to determine if i have j.d. All these sections you're citing depend on existence of removal order. E: i dont think that premise is correct for all of them. 1252g would not apply--does presuppose execution of order of removal. b /95

E: but a5 and b9 are different clauses that funnel everything thru a court of appeals. b9 does refer to final orders of removal but a5 does not. J: wait. you could say anything in the record is an order and if you say it's an order i'm barred from reviewing it? E: no ... /96

J: i'm not opining on sufficiency of an order. i'm taking notice of a court file and this thing is missing. if no order, on what authority can abrego be detained for imminent removal. removal is predicated on an order. under zadvydas--i have authority to review legality of prolonged detention /97

E: we agree a9 and b5 not bar to challenging prolonged detention. ... Zadvydas--those claims are reviewable. but those fails on the merits. [Zadvydas is idea that he's being subjected to prolonged detention without a reasonable likelihood of being removed.] /98

J: it doesn't seem to imminent or reasonable foreseeable that he'll be removed because no final order of removal. E: if no order of removal, zadvydas doesn't apply. J: principle remains. if a person ... if not 1231 it's nothing right now. you may proceed with new removal order with new plan. /99

J: but as of today ... if you're being held by govt for removal purposes and removal is not reasonably foreseeable, you're entitlted to release. E: i dont believe that's the state of the law. ... he cites scotus ruling in Jennings. J: only basis to hold abrego is 1231. without valid order /100

J: ... of removal ... E: several reactions YH. [she laughs] E: could issue new NTA [notice to appear] which would allow detentino under 1225 and 1226. could potentially detain him under original NTA. J: you may be right. lot of questions mooted out. /101

J: where we are now is only basis for holding him is 1231. (that's the provision about how you remove an alien to a third country if he has an order of removal and can't go to his home country.) /103

J: [curiosity you won't send him to costa rica] E: that is not an open door J: no basis to say that. we've had 4 applicant countries. every time the govt gives me factual predicate. this witness said nothing today. i just want underlying info. /104

J: do you know why costa rica is not on table? E: [he wasn't privy to any of the discussions] J: you're saying CR has rescinded the offer it made in record. it wasn't conditional. i'd love to see evidence. & rest assure this isn't empty word salad of an affidavit. /105

judge is pressing Ensign on why won't the govt just send him to costa rica. yhou want me to make finding CR is no longer on the table, but you won't show me the work. not for public consumption. record's going to be cflosed as of today. in terms of future proceedings where i issue an order /106

on what the witness should be prepared on. it's not followed. 3 times. i issue an order to provide a witness prepared to testify on an issue. it's not followed. this was the worst yet. he didnt know the meaning of rthe words in his affidavit. E: defendants believe this is not reviewable. /107

E: DHS Secy has power to say removal to CR is prejudicial to US and that's not subjecto to judicial review. J: i hear you. [we go back to jurisdictional issues]. E: turn back to 1252g. execution of removal orders is squarely within it. /108

J: and procedural challenges also barred? E: correct. they've also implied that these claims are not covered because it's not discretionary--that's been rejected by courts of appeals. 243 F3d at 214. /109

E: ... challenge that Liberia would torture or persecute him--only fears he raises in his brief. He's really concerned about being sent back to El Salvador. US has rec'd assurances that won't happen. J: Maybe IJ would agree with asylum officer. doesn't mean he doesn't get review. /110

J: speaking of foregone conclusion--how is it after abrego won, when i ordered him to be returned and restored to status quo ante, how is it when he is restored & detained in Baltimore & petitioners move to reopen, case is assigned to IJ with no ties to this j.d. E: i dont specifically know /111

J: you don't know? why sent to Atlanta. petitioner raises disturbing statistic. IJ has very high rate of denial for asylum claims. would mr. Molina know? E: dont know why it ended up there. happy to try to find out. J: if you start process over, where would it start? E: dont know. /112

E: dont know how DHS would handle. dont know of a parallel case. J: Is IJ that had it before still on bench? E: dont think so. J: and no Baltimore IJ available so it went to Atlanta? E: dont know. ... there's docket management. Molina: i don't know why. /113

Molina: it's something we can look. into. J: if it's out of the ordinary, that's a problem. my order was to restore him to status quo ante. M: new immigration judge uses baltimore heading ... J: would still be 4th Circuit case? /114

M: that's correct. ... govt's perspective is: when case is assigned to Baltimore, that's location of hearing even if IJ is in Hawaii. no venue change. still a baltimore immigration case. J: thank you for that /115

Ensign turns to due process. He is saying courts can't review diplomatic assurances. Munif categorically precludes courts as matter of law from second guessing executive's determination regarding torture and related matters are credible. /116

[Judge Xinis likes to talk things out. I'm running out of steam here. I'm only going to pipe in more periodically from here on out.] /117

[Ensign saying Liberia has given explicit assurances that no refoulement--that is, re-deportation--to El Salvador will occur, and courts can't review dept of state's assessment that those reassurances are credible.] /118

[Ensign now arguing that unlawful admission limits due process rights, even for those who have been inside this country for years. Accordingly, he's not due any more process than what's provided by statute. Can't relay on due process clause to create additional procedures.] /119

DOJ's Ensign now rebutting idea that jurisdictional bars create a "judicial black hole." Says 1252g is broad but it's not a black hole. it channels those claims to different courts--immigration judge to bureau of immigration appeals (BIA) to US Court of Appeals. /120

Ensign says govt reads SCOTUS's DVD ruling more broadly than they do. J: we can have long debate about the infirmities of how the class was defined. it's very broad. why isn't it possible SCOTUS stayed injunction just on breadth of class definition. can't read more into it. /121

Ensign is done. Judge: if i grant relief on Zadvydas, and adjudicate the petition, what assurance do I get that govt won't just remove him to 3d country? E: too many permutations to answer that question. /122

J: what if it's based on prolonged detention because there's no order of removal. E: strongly suspect, if court holds no final order of removal, govt would take the position that additional injunction not needed. we'd disagree that j.d. exists for that. /123

J: well maybe i'll table the motion to dissolve the petition. if i deny petition, i'll dissolve injunction. if i grant petition, i'll see. maybe i'll do petition and then turn to the motion to dissolve. E: makes sense. decide the habeas first. Rossman agrees to table the injunction issue. /124

Rossman: Ensign cited Kaplan case. 1925 case. Detainee stopped at ellis island. was minor. middle of the war. didn't send back to russia. held him in constructive custody of an orphanage. had never crossed theshold into US. /125

Zadvydas 60 years later says after person enters country things change. same in clark v martinez, 7-2, by Scalia. zadvydas applies to inadmissible immigrants. once they're here, no question at all they're entitled to full measure of due process. govt trying to transport us back /126

... to a [different] century. ... on issue of status of my client would have in liberia--critical that liberia has only said it would be temporary. has not agreed to give him travel docs to stay permanently. "assurance' we hear is that Liberia would not send him directly to El Salvador. /127

R: but what happens after his temporary status ends. he wouldn't have travel docs. naturally he'd be sent to his home country--el salvador. R: i dont see how Abrego, left to his own devices in Liberia, could engineer exit to Costa Rica or anywhere else. /128

R: govt's brief was telling in its callousness. ... Govt focuses on whether he'll experience persecution in Liberia. what happens outside liberia is not issue, per govt. but what happens when temporary status ends? /129

Rossman: there's a reason why there's an extraordinarily small fraction of people sent to 3d countries before this year. wherever you send someone, unless they have status, at risk directly or indirectly to refoulement. all i am saying, abrego entitled to is review by IJ to a final conclusion. /130

J: if you're asking for my than IJ review burden gets heavier under [federal due process standard]. There are regulations in expedited removal--get review but it stops at the IJ. it's odd to me, seems irrational, he wouldn't get that, but why unconstitutional? /131

R: in weighing the 3 Mathews v. Eldridge factors, have to weigh burden of providing procedure. when weighed against fundamental liberty interests of abrego it seems quite modest. won't halt machinery of govt to give him appeals. /132

Rossman's last substantive point is on Costa Rica. we've had 3 hearings. before we got to courtroom we took 3 depositions. supposed to provide us with witnesses with knowledge. mr giles, schwartz, cantu. no evidence at all that costa rica is unwilling to take my client. /133

R: you've given the govt every chance. Judge: if no order of removal -- govt may issue a new order. that will allow you to timely designate costa rica as your 3d country. *today was a zero in my view.* but i dont have to reach the import of it. /134

R: Ensign says Secy of HLS has right to choose 3d country designation. we don't think that's right. it's a "shall" when it comes to my client's designation of Costa rica. Can be overridden if 3d country won't take or Secy has determined it would prejudice US. [No showing of either.] /135

R: it's been a parade of less than memorable witnesses, YH. we're left with a plain winner for my client. Cooper now addressing some of the technical jurisdictional questions. He gives her some cases where courts have exercised jurisdiction when there was no order of removal. /136

Judge: I dont have any other questions. i consider the record and argument to be closed. will reach as quickly as I can. weighty issues. I'll likely not reach the motion to dissolve till I decide the petition ... /137

Judge Xinis thanks the members of the community in the courtroom for being their quiet respectful comportment. "you've been wonderful guests." Adj. Thanks for following! If you found this helpful, I hope you'll consider donating to help our whole team coverage: givebutter.com /138-end