(NEW YORK) -- A top ICE official struggled to answer questions about Kilmar Abrego Garcia's potential deportation during an evidentiary hearing on Thursday, and admitted that someone else helped draft his sworn declaration submitted in the case.
John Cantu was called to testify about why the government is not planning to deport Abrego Garcia to Costa Rica and is instead preparing to remove him to the West African nation of Liberia.
When pressed by Abrego Garcia's attorneys about the contents of the sealed declaration regarding the government's communication with Costa Rica, their client's preferred country of removal, Cantu said he did not understand parts of his declaration.
Lawyers for Abrego Garcia, a native of El Salvador, accuse the government of having "cycled through" four third-country destinations -- Uganda, Eswatini, Ghana, and now Liberia -- without providing "the notice, opportunity to be heard and individualized assessment that due process requires."
After not being able to answer several questions from Abrego Garcia's attorneys, Cantu said he received "verbiage" for his declaration from a State Department attorney.
"Sitting here today, you could not tell me whether anyone from the State Department has been in touch with Costa Rica since August 21, to determine whether communications have changed?" asked Sascha Rand, an attorney for Abrego Garcia.
"That's right," Cantu replied.
"Mr. Cantu, when you say Costa Rica is not an option for removal ... where does that come from?" U.S. District Judge Paula Xinis interjected.
"Counsel," Cantu said referring to the State Department attorney.
"The point has been made that this witness knows zero information about the content of the declaration," Xinis said.
Cantu later admitted he had no involvement in Abrego Garcia's case prior to November and said his only involvement was a "five minute Teams call" with the Department of State attorney.
Abrego Garcia, who had been living in Maryland with his wife and children, 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 he denies.
He was brought back to the U.S. in June to face human smuggling charges in Tennessee, to which he has pleaded not guilty. His criminal trial is scheduled to begin in January.
Abrego Garcia's deportation is currently blocked by U.S. District Judge Paula Xinis pending the resolution of the habeas case challenging his removal. He is currently in a detention center in Pennsylvania.
During Thursday's hearing, Abrego Garcia's attorney also pointed out that the government has never submitted a removal order in the case -- only the existing order for withholding of removal to El Salvador.
His attorney argued that deporting someone without a final order of removal would be a "due process violation," and they asked the judge to either give the government time to show a constitutionally valid basis for removal or release Abrego Garcia immediately from immigration detention.
"The entire structure the government has built crumbles if there is no final order of removal demonstrated," the attorney said.
Drew Ensign, an attorney for the government, argued that Abrego Garcia's order withholding removal to El Salvador would only exist if there was a final order of removal issued.
"There is a very strong argument for Mr. Abrego that third country removal is derivative of a valid removal order, and from the beginning, your former colleague agreed that there is no order of removal in the record," Judge Xinis pushed back.
When Ensign said that it is "odd" for Abrego Garcia to concede to go to Costa Rica if he doesn't have an order of removal, Xinis replied, "It's a concession because he's been to CECOT and back."
"And Costa Rica will not put him in a detention center where he could be harmed," she added.
When pressed on why the government won't send Abrego Garcia to Costa Rica, Ensign said the Salvadoran native can apply to move to Costa Rica after being removed to Liberia.
"Why make him do that though?" Xinis said. "Costa Rica says, 'We'll give you the papers.' Why is the government standing in the way of that?"
Abrego Garcia's attorneys say the U.S. government has disregarded Abrego Garcia's "statutory designation" of Costa Rica, despite the country's previous assurances that it would accept him and give him refugee or resident status.
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