Judge denies motion to reopen Kilmar Abrego Garcia’s immigration case

(WASHINGTON) — An immigration judge on Wednesday denied a motion filed by Kilmar Abrego Garcia’s attorneys to reopen his immigration case, according to a copy of the decision obtained by ABC News. 

In the emergency motion filed in August to reopen the case, attorneys for the wrongly deported Abrego Garcia argued that because he was deported to El Salvador and then brought back to the United States, he is now eligible to apply for asylum within one year of his last entry into the U.S.

But in the order filed on Wednesday, Regional Deputy Chief Immigration Judge Philip Taylor said that Abrego Garcia’s motion to reopen his motion to seek asylum is “untimely” because he filed the motion nearly six years after his immigration proceedings — beyond the 90-day deadline required. 

Judge Taylor also concluded there is “insufficient evidence” that the Department of Homeland Security has decided to remove Abrego Garcia to Uganda, Eswatini, or any other third country, after the DHS sent Abrego Garcia’s attorneys a notice in August saying the agency may deport their client to Uganda.

“The word ‘may’ is permissive and indicates to the Court that in sending this notification to Respondent’s counsel, the Department sought to convey that it reserved the right to remove him to Uganda, not necessarily that it intended to do so, that it had decided to do so, or that it would do so imminently,” Judge Taylor said. 

The immigration judge also said that evidence Abrego Garcia provided in his motion arguing for protection due to his fear that he will be tortured or killed  by the Salvadoran government because he’s been labeled an MS-13 gang member is “insufficient.”

Judge Taylor said that when Abrego Garcia was detained in El Salvador’s CECOT mega-prison, he was not subjected to “the conditions described in his country conditions evidence,” and added that Abrego Garcia indicated that he was not “specifically singled out” by CECOT guards “before his mistreatment started or while it was taking place.”

“Respondent also does not indicate that the guards made any statements or otherwise indicated that they believed him or the other deportees to be gang members, so they do not appear to have imputed MS-13 gang membership to him,” Judge Taylor said. “Notably, while prison officials interrogated Respondent about his alleged gang membership and took pictures of his tattoos, they did not mistreat him during the interrogation.”

Abrego Garcia, a Salvadoran native who had been living in Maryland with his wife and children, was deported in March to CECOT, despite a 2019 court order barring his deportation to that country due to fear of persecution. The Trump administration claimed he was a member of the criminal gang MS-13, which his family and attorneys deny.

He was brought back to the U.S. in June to face human trafficking charges in Tennessee, to which he has pleaded not guilty.

After being released into the custody of his brother in Maryland pending trial, he was again detained by immigration authorities, who have sought to deport him.

He was moved last month from a Virginia facility to a detention center in Pennsylvania.

Wednesday’s ruling came on the same day that the Department of Justice on Wednesday moved to postpone all the deadlines Abrego Garcia’s Maryland deportation case, due to the government shutdown.

An evidentiary hearing in the case had been scheduled for Monday. 

“Absent an appropriation, Department of Justice attorneys and employees of the federal Defendants are prohibited from working, even on a voluntary basis, except in very limited circumstances, including “emergencies involving the safety of human life or the protection of property,” Assistant Attorney General Brett A. Shumate said Wednesday in a court filing.

In the filing, the DOJ requested that if the motion for to stay the deadlines is granted, all current deadlines for the parties be extended “by the total number of days of the lapse in appropriations.” 

The DOJ noted that Abrego Garcia “does not consent to the stay.”