Lawyers for Salvadoran national Kilmar Abrego Garcia say the Constitution demands his habeas corpus lawsuit, challenging his current detention and potential deportation, must go on during the U.S. government shutdown — and that he should be placed on home detention.
Lawyers for the Department of Justice filed a motion Wednesday requesting a stay in all aspects of the case, saying government attorneys “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.'”
However, in a motion filed late Thursday, Abrego Garcia’s lawyers argued the government failed to mention the habeas corpus law “expressly instructs that in the event of a lapse of appropriations, this Court will continue to ‘hear and dispose of pending cases.'”
As of Friday morning, U.S. District Court Judge Paula Xinis had not issued an order on whether the scheduled Oct. 6 evidentiary hearing will go on.
With the status of the case uncertain, Abrego Garcia’s lawyers also note the government doesn’t have the right to detain him indefinitely.
Abrego Garcia’s lawyers suggest Xinis impose the same conditions a Tennessee judge earlier ordered when releasing him before a trial for human smuggling — third-party custody, electronic monitoring, home detention, and regular reporting to Pretrial Services.
“If this Court orders Petitioner’s release from immigration custody, he would remain under these strict supervisions requirements, ensuring both his appearance at future proceedings and addressing any alleged public safety concerns, however misplaced those may be,” Abrego Garcia’s lawyers wrote.
A U.S. immigration judge in Baltimore denied a bid for asylum on Wednesday, rejecting an application to reopen Abrego Garcia’s 2019 asylum case. He has 30 days to appeal to the Board of Immigration Appeals.
Outside of court, officials with President Donald Trump’s administration have repeatedly referred to Abrego Garcia as a member of the MS-13 gang, among other things, despite the fact he has not been convicted of any crimes.
Lawyers for the government have yet to respond to Abrego Garcia’s filing that the case should move forward, and that he should be on home detention in the interim.
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