In the convoluted, never-ending saga of the wrongfully deported and then indicted Kilmar Abrego Garcia, a federal judge in Maryland this morning ordered his immediate release from ICE custody — on grounds that are tinged with the bitterest of ironies.
After Abrego Garcia was released from custody in his pending criminal case, ICE quickly took him back into custody and made a big show of preparing to deport him to an ever-changing third country somewhere in Africa. But upon closer examination by U.S. District Judge Paula Xinis, the administration’s plan never panned out and began to resemble a scheme to keep Abrego Garcia detained indefinitely — punishment for having successfully challenged his wrongful deportation and winning at the Supreme Court.
The administration’s bad faith extended to Xinis herself, repeatedly violating her orders as she sought testimony from officials with knowledge of the plans for Abrego Garcia’s removal. It was an extension of the clash between Xinis and the executive branch that began when Abrego Garcia was deported to El Salvador in March in violation of a immigration judge’s withholding order that he could not be deported to his home country because of the threats he faced there.
But something else had been lurking in the background throughout the habeas case — and in the civil case before it that sought his return to the United States after his wrongful deportation: the failure of the Trump administration to produce a final order of removal from an immigration judge directing that Abrego Garcia be deported to El Salvador in the first place.
A final order of removal was the legal underpinning for the administration’s actions in both cases. The administration represented that a final order of removal existed, but throughout the litigation across two cases it never produced one. It only produced the withholding order, arguing that it in effect was the final order of removal. Xinis rejected that argument today.
“The October 10 withholding decision is unambiguously not an order of removal. It does not ‘order’ Abrego Garcia removed to any country or designate removal to alternative countries, as required under the INA,” Xinis wrote in her ruling.
As a result, ICE had no basis to detain Abrego Garcia or to continue to detain him. But the irony — befitting a Greek tragedy — is that if there was never a final order of removal in the first place, then Abrego Garcia should never have been on whatever removal list the government kept that led to his deportation and imprisonment in El Salvador in March. No immigration judge had ever ordered his removal, Xinis concluded. So his wrongful deportation was doubly wrong: It violated the withholding order, but even more fundamentally, Abrego Garcia wasn’t ever under order to be deported.
The related irony is that the pending criminal human smuggling case against him — ginned up by the administration to save face — would never have come about either if not for the doubly wrong deportation in March and Abrego Garcia’s successful challenge of it. His motion to dismiss the case because of vindictive prosecution is being actively litigated in Nashville, much of it under seal in recent days.
In granting Abrego Garcia’s petition for a writ of habeas corpus, Xinis gave the Trump administration until 5 p.m. ET today to notify her of his release.
