Kilmar Abrego Garcia told a federal judge Monday evening that the Trump administration still does not have the legal authority to take him back into immigration custody, even after an immigration judge ordered him deported last month.
The latest claims by the Salvadoran national in court pertain to two separate rulings issued on the same day, Dec. 11, by two different judges. That morning, an immigration judge entered a removal order against Abrego Garcia in immigration court. Later that day, U.S. District Judge Paula Xinis, ruling in a separate federal habeas case, ordered Abrego Garcia released from Immigration and Customs Enforcement custody, finding that the government lacked a lawful basis to continue detaining him at the time.
Since then, the Justice Department has argued that the immigration judge’s deportation order gives ICE a new basis to re-arrest Abrego Garcia.
In a Dec. 30 sworn declaration, ICE Assistant Director for Field Operations Liana Castano told the court that Abrego Garcia remains subject to immigration detention because he entered the United States illegally and was never formally admitted. Castano said ICE intends to detain Abrego Garcia if the court lifts its current order blocking his re-arrest.
“If the Temporary Restraining Order enjoining his re-detention be dissolved,” Castano wrote, “ICE does intend to re-detain Mr. Abrego Garcia.”
Castano also argued that Abrego Garcia would not be entitled to a bond hearing if detained under the immigration statutes cited by the government and said his release does not serve the public interest. The declaration asserted that Abrego Garcia poses a danger to the community, and authorities have previously alleged he is an MS-13 gang member.
Abrego Garcia’s attorneys pushed back in a Tuesday response filing, arguing that the government is misreading what the deportation order actually allows.
Their core argument is that a deportation order alone does not automatically authorize continued detention. The attorneys stated that Abrego Garcia has waived his right to appeal the immigration judge’s Dec. 11 ruling, rendering the order final. They argue that once the order became final, the government could only continue to detain him if deportation were realistically likely.
Since the dueling deportation and habeas petition rulings on Dec. 11, the government has not shown that removal has become any more likely, Abrego Garcia’s attorneys argued. The Trump administration ran into roadblocks in its effort to deport Abrego Garcia last year when multiple countries seemingly refused to take him.
Abrego Garcia’s lawyers further said the original removal order the government relies on, which was backdated to 2019, directs his deportation to El Salvador while simultaneously barring his removal to that country. They argue that the order does not identify any other country where he could be legally sent and that the government has offered no evidence of a viable alternative destination.
As a result, the attorneys contend, re-arresting Abrego Garcia would serve no legitimate immigration purpose and would amount to unconstitutional punishment rather than lawful civil detention. The Salvadoran national was previously offered Costa Rica as a place he would be willing to go, but the government has said with little explanation that the country is off the table.
The Trump administration has considered several third countries for deporting Abrego Garcia, including Uganda, Eswatini, Ghana, and Liberia; however, Xinis has ruled that immigration officials failed to demonstrate that any of those countries would accept him.
Future steps surrounding Abrego Garcia’s case are not immediately clear, though a federal judge handling his criminal human smuggling case in Tennessee, which was brought against the Salvadoran man after the government was ordered to return him from a March deportation to his homeland, has been indefinitely postponed while the court weighs the defendant’s claims that he is being vindictively prosecuted.
U.S. District Judge Waverly Crenshaw has scheduled a hearing for Jan. 28 to hear from prosecutors their reasoning for charging Abrego Garcia, and if they fail, the charges could ultimately be dismissed.
Abrego Garcia’s charges stem from a 2022 traffic stop in Tennessee, where nine passengers were discovered in his car. Officers at the time discussed their suspicions of smuggling, but Abrego Garcia was ultimately allowed to drive away with only a warning.
JUDGE SUGGESTS DOJ LEADERSHIP PUSHED FOR KILMAR ABREGO GARCIA PROSECUTION
It wasn’t until Trump’s return to office last year that Abrego Garcia found himself swept up in a broader deportation effort, during which he was removed to El Salvador in March despite the 2019 immigration court order barring his deportation to that country.
Federal courts later concluded that the removal was unlawful and ordered the government to return him to the United States, finding that immigration officials had violated the terms of his withholding of removal and failed to follow required procedures.