Why Hasn’t the Trump Administration Deported Kilmar Abrego Garcia to Costa Rica?

The DOJ is still trying to use that potential outcome as a carrot to induce him to plead guilty. Africa is the stick.

T wo weekends ago, I wrote about the Kilmar Abrego Garcia saga. The state of play is that a federal judge in Tennessee dismissed the criminal indictment against Abrego, finding that the Trump Justice Department’s prosecution was unconstitutionally selective and vindictive. I’ve long theorized that the vindictiveness of the prosecution was related to vindictiveness in the immigration removal proceedings: The Trump DOJ has been using Abrego’s desire to be deported to Costa Rica as leverage to pressure him to plead guilty to the criminal charges — with the threat that it would send him to an African country, to which he objects, if he continues contesting the charges.

Now, Abrego’s lawyers have informed a federal court in Maryland not only that this is exactly what has been happening, but also that the new Homeland Security secretary, Markwayne Mullin, told Congress that there’s no good reason to refrain from deporting Abrego to Costa Rica if he’s willing to go and that country is willing to take him.

More on that is coming. First, let’s recap.

The Trump administration arrested Abrego in Maryland in March 2025 and illegally deported him to El Salvador. The administration claimed that it lacked suasion over the Salvadoran government (which it was paying to hold aliens) and thus could not facilitate his return despite court orders to do so. (See the Supreme Court’s April 10, 2025, ruling in Noem v. Abrego Garcia). This insult to the intelligence was shown to be laughably false when, in a televised interview, President Trump bragged that he could get Abrego back with one phone call to Salvadoran President Nayib Bukele; he was choosing not to do so because, he insisted, Abrego is a member of MS-13 — something the Justice Department has never even charged, much less proved.

In the interim, the Trump DOJ quietly indicted Abrego on dated and dubious alien-smuggling charges in Tennessee. Basically, top Trump officials — fresh from publicly contradicting the Justice Department’s confession to the courts that the Salvadoran deportation had been erroneous and illegal — had vowed that, regardless of what the courts said, Abrego would “never go free on American soil” again. (Note: It had been the first-term Trump DOJ that, after declining to appeal a DOJ immigration judge’s ruling that Abrego could not be deported to El Salvador, allowed him to be released, to live, and to work in Maryland, even though he was illegally in the country, could thus have been deported elsewhere, and was a suspected gang member.)

Once there was an indictment in place, the administration quickly retrieved Abrego from El Salvador. But it has long been obvious that the administration wanted the indictment, not to try Abrego, but for purposes of publicity and leverage: (1) With an indictment, the administration could publicly posture that it had not backed down in the face of court orders — i.e., it had brought Abrego back to America solely to prosecute him; (2) the indictment would serve as a hedge against the possibility Abrego would get bail in the immigration case — i.e., the criminal case would be an alternative basis to keep him in custody; and (3) even if the criminal case was weak, the administration could use its control over where Abrego would ultimately be deported to pressure him to plead guilty.

In their zeal to make a case against Abrego, prosecutors cut deals with convicted criminals, some of whose ties to MS-13 were stronger than Abrego’s, and some of whom had returned to the United States after being deported multiple times. In exchange for testimony that led to the underwhelming smuggling charges against Abrego, the Trump DOJ gave these cooperators such benefits as early release from custody for criminal convictions (including at least conviction for the same smuggling crime charged against Abrego) and deferral of deportation.

If the government had had to try the case in court, this information about the benefits it had extended to illegal alien criminals would have been widely publicized — and embarrassing for the administration to defend. Moreover, Abrego could well have been acquitted. Indeed, following a bail hearing in the criminal case, a federal magistrate judge found the testimony of two of the cooperating witnesses to be weak — particularly regarding Abrego’s alleged membership in MS-13. (“Even without discounting the weight of the testimony of the first and second male cooperators for the multiple layers of hearsay, their testimony and statements defy common sense.”)

Notwithstanding former Attorney General Pam Bondi’s tough talk at the time of the indictment that Abrego would not be deported until after he was tried, convicted, and had served his sentence, the Trump DOJ subsequently let it be known that it planned to deport Abrego before he could be tried — i.e., there would be no real criminal prosecution because a criminal trial cannot proceed in a defendant’s absence, particularly if the government is responsible for that absence.

Meantime, Abrego was released on bail in connection with the criminal case in August 2025, and that case — as I discussed two Saturdays ago — was dismissed last month by Judge Waverly Crenshaw Jr. (an Obama appointee).

The removal proceeding is more complicated. As I’ve detailed a number of times, Congress’s immigration statutes strip jurisdiction over removal proceedings from district judges. But the district courts continue to have habeas corpus jurisdiction over claims that a person’s detention or conditions of confinement violate federal law. Remarkably given its aggressiveness in the case, the Trump DOJ never got a proper removal order for Abrego prior to arresting him and illegally deporting him to El Salvador. Consequently, Judge Paula Xinis (also an Obama appointee), had habeas jurisdiction over Abrego’s claim that he was unlawfully deported to El Salvador. Although she has no authority to hold that Abrego cannot be deported (by statutory law, as an illegal alien, he is removable from this country), she has nonetheless retained jurisdiction over the questions (a) whether Abrego was properly detained while the removal proceedings ensue, and — more dubiously in my opinion — (b) whether Abrego may be deported to a “third country” to which he objects.

As I’ve outlined before, Section 1231(b) of federal immigration law (Title 8, U.S. Code) authorizes the government to remove an alien to any country willing to accept him if it is “impracticable, inadvisable, or impossible” to send the alien to his native country or to a country to which he’d prefer to be sent. If an alien who may not be sent to his native country chooses a country that is willing to take him, he should be removed to that country unless our government determines “that removing the alien to [that] country is prejudicial to the United States.”

Abrego has asked to be removed to Costa Rica, which is relatively close to, as well as culturally and linguistically compatible with, his native El Salvador. Costa Rica’s government has advised the U.S. government that it is willing to accept Abrego. The administration’s overarching position is that it wants illegal aliens deported from the United States as swiftly and cost-efficiently as practicable.

So why hasn’t Abrego been sent to Costa Rica?

Why has the administration endeavored to send him to countries in Africa — Uganda, Eswatini, and Ghana — which have refused to take him and to which he objected? Why has it more recently been pushing to send him to Liberia, another African country to which Abrego objects? After all, no Trump administration has publicly claimed that it would be prejudicial to the United States for Abrego to be sent to Costa Rica. And how could it be prejudicial compared to what we have now — an illegal alien who the administration still maintains has gang ties and committed felony smuggling and is at liberty in the United States?

The answer, according to counsel for Abrego, is that the Trump DOJ has been trying to squeeze him into pleading guilty to the criminal indictment. The lawyers said he’s been told that if he’ll plead guilty, the administration will send him to Costa Rica; but if he refuses to plead guilty, they will find a way to send him to Africa.

Last week, Markwayne Mullin testified before a Senate Committee. Abrego’s lawyers have informed Judge Xinis that, when Senator Chris Van Hollen (D., Md.), asked the secretary about the government’s manipulation of deportation destinations to try to induce a guilty plea, Mullin did not deny it (although he did not indicate that he had specific knowledge about it either). Mullin elaborated that he had not heard that Abrego was willing to go to Costa Rica and that Costa Rica was willing to take him. But when Van Hollen informed him of that fact, Mullin replied, “Great, if he’s willing to do that, we’ll be happy to send him.”

Yet, it hasn’t happened even though it could have happened months ago. Is the Trump DOJ still pressuring Abrego to plead guilty to criminal charges? The DOJ said it intended to appeal the court’s dismissal of the criminal indictment as vindictive, but it doesn’t appear to have done so yet — it has 30 days from the May 22 date of Judge Crenshaw’s ruling. If it were to appeal, it would probably need to allow Abrego to stay in the U.S. — free on bail — while the appeal proceeds, which could take many months (even more if the case ultimately went to the Supreme Court). On the other hand, if the DOJ fails to appeal, it would appear to be conceding Crenshaw’s finding that it committed unconstitutional misconduct. But there’s an escape hatch: If the DOJ can get Abrego to plead guilty, the embarrassing criminal case can be resolved without an appeal and without an implicit admission of misconduct.

Hence, it appears that Abrego has not been deported to Costa Rica because the Trump administration is still trying to use that potential outcome as a carrot to induce him to plead guilty. Africa is the stick.

In point of fact, the indictment should never have been brought, and Abrego should already have been sent to Costa Rica — an outcome our law dictates, so it shouldn’t be the subject of negotiations.