Attorneys for wrongly deported Kilmar Abrego Garcia have filed an emergency motion to reopen his immigration case to seek asylum, according to a court filing Tuesday.
Abrego Garcia, who was rearrested Monday in Maryland after he was released Friday from criminal custody in Tennessee, is currently being held in a detention center in Virginia, where the federal government is temporarily blocked from deporting him pending further proceedings in a habeas case.
“At 5pm yesterday, Petitioner filed a motion to reopen before an immigration judge to seek asylum in the United States,” his attorneys said in a proposed scheduling order filed on Tuesday. “Petitioner proposes that the parties allow the immigration judge to resolve that motion within two weeks from today.”
According to the emergency motion to reopen the case, his attorneys argue that because Abrego Garcia was deported and then brought back to the U.S., he is now eligible to apply for asylum within one year of his last entry into the U.S.
The motion asks the immigration court in Baltimore to “immediately” order a stay of removal to afford Abrego Garcia “an opportunity to seek protection from persecution and torture in Uganda,” where the government has indicated he could be sent.
“Respondent fears persecution and torture in Uganda because he is a Salvadoran national and would be a deportee without any legal status in Uganda,” his attorney said in the filing. “Furthermore, he is at risk of being removed to El Salvador by the Ugandan government where he is likely to once again face persecution and torture within CECOT.”
The request to reopen the immigration case argues that because Abrego Garcia was unaware of the possibility of deportation to Uganda, he had no opportunity to pursue a protection claim.
In the filing, the attorney also said that reopening the case is warranted to allow Abrego Garcia to designate Costa Rica as the country of removal.
“Respondent recently received an offer of refugee status from the government of Costa Rica, along with official assurances that Costa Rica will not detain him and will not deport him to El Salvador,” the filing said. “The Court should grant Respondent’s motion to reopen proceedings to allow Respondent to seek both asylum and protection from removal to Uganda based on changed circumstances.”
Abrego Garcia, a Salvadoran native, was deported in March to El Salvador’s CECOT mega-prison — despite a 2019 court order barring his deportation to that country due to fear of persecution — after 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 charges in Tennessee of allegedly transporting undocumented migrants within the U.S. while he was living in Maryland, to which has pleaded not guilty. After being released on Friday while awaiting trial, he was taken into immigration custody upon checking in with the ICE office in Baltimore on Monday.
His attorneys say they were told that he may be deported to Uganda after he rejected a plea deal to be deported to his preferred destination of Costa Rica in exchange for pleading guilty to the human smuggling charges.
In a separate filing Tuesday, attorneys in Abrego Garcia’s criminal case blasted government officials for “unilaterally” rearresting him on Monday, saying they oppose the government’s request for more time to respond to their accusation of “vindictive and selective prosecution.” A magistrate judge in Tennessee granted the government’s request for an extension.
“Ordinarily, we would agree, as a matter of professional courtesy, to a request for an extension, after first consulting with our client,” the attorneys said in their filing. “But the government has unilaterally re-arrested our client, notified us of its intention to deport him to Uganda, and rendered him (at least temporarily) unavailable to us.”
Abrego Garcia’s layers said in Tuesday’s filing that the government is “depriving” him of the pre-trial release ordered by the Tennessee court and argued that the government should not receive an extension “to mitigate the consequences it caused.”
The attorneys said the government “repeatedly failed to persuade courts of its inflammatory and false allegations” about Abrego Garcia and accused the government of not being interested in seeing what “American justice looks like.”
“It is difficult to reach any conclusion other than that the government seeks to delay its response until after Mr. Abrego is deported, at which point it will argue that it does not have to respond at all, and that the Court need not decide the motion,” Abrego Garcia’s attorneys said.
In a filing on Monday, the government, arguing for an extension to respond to Abrego Garcia’s attorneys, pushed back on the claim that the government made an attempt to “coerce” Abrego Garcia into an involuntary plea of guilty.
Robert McGuire, the Acting United States Attorney for the Middle District of Tennessee, said the government had never offered a third-party country placement for Abrego Garcia as part of a plea to his criminal charges.
“The Government, in good faith, began in earnest to search for a third-party country placement which was described by the defendant as a necessary part of any plea agreement,” McGuire said.
“Prior to this demand, the Government had never offered a third-party country placement for the defendant as part of a plea to his criminal charges. Much less had the Government made an attempt to ‘coerce’ the defendant into an involuntary plea of guilty as the defendant now claims,” said McGuire.
