The Trump administration is struggling to find a foreign country willing to accept Kilmar Abrego Garcia, a Salvadoran national with a checkered legal history, as a federal judge in Maryland weighs ordering his release from immigration detention.
The saga of Abrego Garcia, 29, has become a test of the administration’s “third-country” deportation strategy, which has otherwise logged major successes in returning migrants to partner nations that agree to cooperate with U.S. enforcement. But those efforts have faltered in Abrego Garcia’s case amid diplomatic resistance and lingering legal restrictions from a 2019 immigration ruling that bars his removal to El Salvador.
During a daylong court hearing on Oct. 10, a senior Immigration and Customs Enforcement official testified that U.S. overtures to several African nations have fallen flat. Uganda and Eswatini both rejected requests to receive Abrego Garcia, and Ghana’s foreign minister confirmed on X that his country would not accept him.
Abrego Garcia’s lawyers claim those failures show the administration is “dragging its feet” to keep their client locked up while officials insist they are pursuing every available option to carry out a lawful removal.
U.S. District Judge Paula Xinis, an appointee of former President Barack Obama, sharply criticized the government during the hearing for sending a premature deportation notice to Ghana before receiving any agreement from that country, calling the mistake evidence that parts of her prior order had been ignored. She also questioned why a witness from ICE, John Schultz, was not aware of Abrego Garcia conceding that he would be satisfied if the government deported him to Costa Rica.
“You come today with a witness who knows nothing about Costa Rica — I mean, less than nothing,” Xinis said, after ICE witness John Schultz admitted he was unaware that Abrego Garcia had already agreed to be deported there, according to Politico’s retelling of the hearing. An attorney for the Salvadoran national, Andrew Rossman, said during the hearing that the government’s attempts to identify more African countries for consideration suggested that the government was unwilling to entertain the Costa Rica offer.
Schultz testified that the White House had been directly involved in discussions through Homeland Security Council official Matt Ochoa, who at one point suggested Uganda as a destination. Justice Department attorneys quickly invoked executive privilege to cut off further questioning on that subject matter.
The Washington Examiner contacted representatives for the Department of Homeland Security on Friday to inquire whether there had been any diplomatic changes in Eswatini or whether progress had been made on finding a different third country for Abrego Garcia.
A never-ending deportation saga entangled in the courts
Abrego Garcia first entered the United States illegally from El Salvador more than a decade ago and lived in Maryland until his arrest in March. He was briefly deported to El Salvador before a U.S. court ruled the removal illegal because it violated the 2019 “withholding of removal” order meant to protect him from gang retaliation in his home country.
The administration returned Abrego Garcia to the U.S. in June under court order, but federal prosecutors in Tennessee simultaneously charged him with human smuggling after a 2022 traffic stop. He denies the allegations, and U.S. District Judge Waverly Crenshaw on Friday scheduled hearings for Nov. 4 and 5 to address motions from his defense team claiming “vindictive prosecution” and seeking to suppress certain evidence.
If Abrego Garcia is ultimately convicted in that case, the administration could revisit the 2019 order that blocks deportation to El Salvador — possibly clearing the way for his removal to his home country and ending a standoff that has plagued the administration for months. If the case is not dismissed, a trial is slated for early next year, giving the government an opportunity to chip away at the defendant’s limited protection status.
One of the most recent court rulings in the administration’s favor was an Oct. 2 ruling by an immigration judge who held that the removal order against Abrego Garcia can still stand. Regional Deputy Chief Immigration Judge Philip Taylor found that Abrego Garcia’s recent request for asylum was “untimely,” as it arrived nearly six years after litigation over his illegal entry into the U.S. began.
However, that doesn’t resolve the more onerous problem in the short term, which is the hunt to find a country willing to take him in.
Six-month rule could limit detention
Immigration attorney Juan Rivera, based in Miami, told the Washington Examiner the government now faces serious time constraints under Zadvydas v. Davis, a 2001 Supreme Court decision that limits post-order detention to roughly six months unless deportation is “reasonably foreseeable.” The ruling requires the government to show “a significant likelihood of removal in the reasonably foreseeable future,” Rivera explained.
“In Kilmar Abrego Garcia’s case, if three countries have refused to accept him, it becomes increasingly difficult for the government to argue that removal is foreseeable,” he said. “At that point, prolonged detention risks becoming unconstitutional.”
Rivera also said ICE’s notice to Abrego that he would be sent to Ghana — before that country had actually agreed to accept him — “suggests a breakdown in coordination between DHS, ICE, and the State Department.” While such a mistake may not amount to outright bad faith, he said courts under the Zadvydas framework “look at the government’s diligence and credibility in pursuing removal,” meaning even small procedural missteps could hurt the administration’s case.
He added that allegations that the government is detaining Abrego Garcia for political reasons rather than legitimate immigration purposes would be constitutionally significant.
“If the defense can show that the government is keeping Mr. Abrego Garcia detained not for legitimate immigration purposes but to pressure a plea or avoid contradicting a political statement, that raises serious due-process and constitutional concerns,” Rivera said. “Immigration detention must serve a legitimate, non-punitive purpose: ensuring removal or protecting public safety.”
Rivera said the reported involvement of a Homeland Security Council official in determining possible destinations “would be highly unusual” because such decisions are typically handled by ICE and the State Department, not political offices inside the White House. He noted that invoking executive privilege to block further questioning in court “could compound transparency concerns” about how removal decisions are made.
Even so, Rivera emphasized that the Abrego Garcia case doesn’t necessarily signal a broader policy failure. Instead, it highlights “the outer limits of the third-country deportation strategy.”
IMMIGRATION JUDGE ALLOWS REMOVAL ORDER TO STAND IN KILMAR ABREGO GARCIA CASE
Other countries fighting lawsuits against deportation deals
A recent BBC report on Oct. 6 underscored how possibly volatile these third-country deals have become, mostly due to activist pressures within foreign countries resulting in litigation in some circumstances. The outlet reported that Eswatini accepted 10 U.S. deportees this month despite a pending court challenge by local human rights groups that argue the agreement with Washington was reached without parliamentary approval.
The Eswatini government confirmed it had agreed to take up to 160 deportees in exchange for roughly $5 million in U.S. assistance to expand its border-management capacity, a deal that critics in the region have called opaque and unconstitutional. The U.S.-Eswatini agreement has also stirred concerns in neighboring South Africa that deportees might slip across the border, illustrating the diplomatic balancing act that now surrounds every such transfer.
