The Government is Violating Mr. Abrego's Due Process Rights. Again.

Mr. Abrego's attorneys have revealed that the government has threatened him with deportation to Uganda if he doesn't plead guilty to the two felony counts against him.

Many of you have been following the case of Kilmar Abrego Garcia. Last March, he was kidnapped and unlawfully disappeared to El Salvador where he was confined to CECOT. The government admitted he was sent there erroneously, but refused to return him to the United States. Instead, the government defied a court order to explain what steps they were taking to return him.

To avoid the embarrassment of discovery, the government began “investigating” a 2022 traffic stop and cooked up two paper-thin criminal charges against him, thus returning him to the United States to face trial. A hearing was held with a magistrate judge in Tennessee to determine whether the government could get a detention hearing with a district court judge. The government used double and triple hearsay evidence of minors being involved in the 2022 traffic stop to secure a detention hearing. A district court judge determined the government had met its burden for a detention hearing but ruled that Mr. Abrego was not a danger to the community (or a flight risk) and could be released under the Bail Reform Act.

Mr. Abrego didn’t avail himself of his release immediately, though, because the government would not divulge whether it planned to deport him once he was released from prison on bond. After a hearing, Judge Xinis - frustrated by the government refusing to tell her where they intended to deport him - ordered that if ICE were to detain him upon his release, the government would have to give 72-hour notice to Mr. Abrego and his lawyers if they intended to render him to a third country.

The government’s argument for not divulging their deportation plans was that they would not know where they planned to deport him until he was in ICE custody.

Here is the timeline of events that occurred surrounding the release of Mr. Abrego according to a court filing today:

On Tuesday, Mr. Abrego moved to dismiss the Indictment pending against him on grounds of vindictive and selective prosecution.

On Wednesday, it became clear that Mr. Abrego would be released at the end of the week. At Judge Holmes’s request, the government confirmed that it had no objection to the Court’s permitting him 48 hours to travel home to Maryland upon the expiration of a stay of his release set for Friday, August 22, 2025. The government and Mr. Abrego then informed Judge Holmes of the plan to ensure Mr. Abrego’s release and return to Maryland.

Late Thursday evening, in a last-ditch effort to forestall that release, the government informed Mr. Abrego’s counsel that if Mr. Abrego agreed to extend the stay of his release to Monday, August 25, 2025, and plead guilty to both counts of the Indictment, then the government would promise to deport Mr. Abrego to Costa Rica after serving any sentence imposed by the Court. In conjunction with that proposal, the government produced a letter to Mr. Abrego’s counsel confirming that he could live freely in that country, which would accept him as a refugee or grant him residency status, and promise not to refoul him to El Salvador.

Mr. Abrego did not agree to extend the stay, but counsel informed Mr. McGuire that it would, of course, communicate the government’s proposal to Mr. Abrego.

Friday afternoon, Mr. Abrego was released. The government immediately responded to Mr. Abrego’s release with outrage. DHS issued a press release blaming Judge Xinis—the District of Maryland Judge presiding over Mr. Abrego’s civil case, the success of which precipitated this case—personally for “allowing…a known MS-13 gang member, human trafficker, wife beater, and child predator to walk free on U.S. streets,” citing screenshots of random documents as evidence of its claims, and quoting Secretary Kristi Noem’s separately issued statement promising that the government would “not stop fighting till this Salvadoran man faces justice and is OUT of our country.

Despite having requested and received assurances from the government of Costa Rica that Mr. Abrego would be accepted there, within minutes of his release from pretrial custody, an ICE representative informed Mr. Abrego’s counsel that the government intended to deport Mr. Abrego to Uganda and ordered him to report to ICE’s Baltimore Field Office Monday morning.

The only thing that happened between Thursday—Costa Rica—and Friday—Uganda— was Mr. Abrego’s exercise of his legal entitlement to release under the Bail Reform Act and the Fifth Amendment.

This seems wildly illegal and coercive. The above language is from a supplemental motion to Tuesday’s motion to dismiss the charges against him for vindictive and selective prosecution - his criminal case. But I immediately thought of the civil case filed by the men who were deported to South Sudan, and how Judge Randolph Moss said in that case that the plaintiffs had a substantial claim on the merits. “The government should not be in the business of inflicting pain and suffering on human beings.” Unfortunately, because of a vague ruling from the Supreme Court on the emergency docket, their claim was denied by Judge Murphy - who got the case from Judge Moss in a transfer because of concerns of claim-splitting.

So how is this Costa Rica/Uganda Carrot/Stick coercion violative of Mr. Abrego’s due process rights? According to today’s supplemental brief:

These latest moves punish Mr. Abrego further, this time for “exercising [his] constitutional and statutory right[]” to release from pretrial detention, which the Fifth Amendment forbids. United States v. Zakhari, 85 F.4th 367, 379 (6th Cir. 2023); see also Bordenkircher v. Hayes, (1978) (“To punish a person because he has done what the law plainly allows him to do is a due process violation of the most basic sort…and for an agent of the State to pursue a course of action whose objective is to penalize a person’s reliance on his legal rights is patently unconstitutional.”).

In other words, you can’t punish someone for following the law. And in a footnote, Mr. Abrego’s lawyers point out the government’s misrepresentation to the court that his deportation could not be decided until after he’s in ICE custody. They made the Costa Rica/Uganda threat before he is set to report to ICE on Monday. They also tell the court that Mr. Abrego is considering filing an emergency motion in his civil case to block his removal.

The blatant, coercive coordination between DOJ and DHS eviscerates the government’s previous assertion that one agency cannot tell the other “what to do” and that each agency must “attend to their specific duties as governed by the appropriate law”—including DHS proceeding with detaining and removing Mr. Abrego. The government made similar misrepresentations in the Maryland case, where it claimed that decisions about third countries are not and cannot be made until a person is taken into ICE custody.

In prior cases in this Circuit and elsewhere, courts have required the government to choose between prosecuting a criminal case and taking a defendant into immigration custody pending removal. See, e,g., United States v. Garcia. The Sixth Circuit rejected that practice in United States v. Veloz-Alonso, relying explicitly on the premise that there were “two Article II agencies navigating their own competing statutory requirements while an Article III adjudication commences.” Given the seemingly unprecedented, coercive, and vindictive coordination among the nominally separate Article II agencies here, Veloz-Alonso may very well be distinguishable. As a result, Mr. Abrego is evaluating whether the conduct described here would support a supplemental emergency motion to forestall his removal or otherwise sanction the prosecutorial misconduct he is being subjected to.

I think Tuesday’s motion to dismiss for vindictive and selective prosecution is strong, and now adding this violation of Mr. Abrego’s due process rights makes it even stronger. I will be keeping an eye out for an emergency filing in his civil case to block his removal with arguments similar to those made in the South Sudan case, but addressing the Supreme Court ruling allowing removal to third countries during the pendency of litigation on the merits.

Mr. Abrego’s case is different because there are two countries being offered - Costa Rica or Uganda - hinging on whether he pleads guilty to criminal charges. If Costa Rica is available, I think the punitive threat of deportation to Uganda for doing nothing more than availing himself of a judge’s decision to release him violates Mr. Abrego’s rights under 8th amendment.

You can read the full supplemental motion to dismiss for vindictive and selective prosecution here. You can read the original motion to dismiss for vindictive and selective prosecution here.

Credit: George Walker IV / AP