A federal judge in Maryland ordered the immediate release of Kilmar Abrego Garcia from immigration detention on Thursday, ruling that the government has no lawful authority to continue holding him while it pursues his removal to a third country.
U.S. District Judge Paula Xinis said the case had reached a breaking point because “since Abrego Garcia’s wrongful detention in El Salvador, he has been re-detained, again without lawful authority.” She found that Immigration and Customs Enforcement has been detaining him solely for the purpose of executing a removal that she said the law does not permit, writing that “no order of removal exists,” a discrepancy in the record that the government has not yet been able to fix.
Xinis stressed in her 31-page written opinion that the absence of a valid removal order is significant. The government has repeatedly asserted it can remove him under the third-country provisions of 8 U.S.C. § 1231, but the statute only applies after a noncitizen “is ordered removed” by an immigration judge.
In 2019, a federal immigration judge imposed a limited withholding of removal order barring Abrego Garcia from being sent to El Salvador for fear and safety concerns. Although the government and legal experts have said the existence of a withholding of removal order implies that Abrego Garcia was first ordered for removal, the immigration court failed to provide a written notice on the docket, leaving Xinis with “nothing in the record” to show that any immigration judge ever ordered his removal.
Xinis further concluded that the government’s shifting third-country designations of Uganda, Eswatini, Ghana, and Liberia as destinations for Abrego Garcia only underscored that “no significant likelihood of removal in the reasonably foreseeable future exists.”
The Department of Homeland Security responded to the ruling by accusing Xinis, an appointee of President Barack Obama, of engaging in “naked judicial activism.”
“This order lacks any valid legal basis and we will continue to fight this tooth and nail in the courts,” assistant secretary Tricia McLaughlin told the Washington Examiner.
The ruling caps a year of extraordinary legal and diplomatic turmoil for the Salvadoran native, who lived in Maryland illegally for years with his wife and children. He was deported in March to El Salvador’s CECOT megaprison despite a 2019 order barring his removal to that country because of what he convinced the immigration court was his well-founded fear of persecution.
The Trump administration has maintained he is an MS-13 member, an allegation his lawyers and family say is false. After being returned to the United States in June to face unrelated human smuggling charges in Tennessee, he was released on strict pretrial conditions — those included GPS monitoring, home detention, regular check-ins, and a prohibition on travel without authorization — before ICE seized him again as he exited federal custody in August.
The pretrial conditions remain in place. Nothing in Xinis’s order alters the supervision structure imposed by the Middle District of Tennessee, meaning Abrego Garcia will be released from ICE custody directly back into the court-ordered regime already governing his criminal case, which is slated for a trial early next year.
The judge also emphasized that even if removal were theoretically possible, ICE’s conduct persuaded her that continued detention had become arbitrary. She pointed to months of failed or nonexistent outreach to the countries ICE claimed would accept him, federal witnesses testifying they had “no knowledge” of basic facts they were ordered to investigate, and Costa Rica’s public confirmation that its refugee offer, which would allow immediate removal without litigation, “remains valid and unchanged.” The government’s refusal to pursue that option led the judge to conclude that detention “cannot be justified on any lawful basis.”
The Justice Department can seek an immediate stay pending appeal, but Xinis’s order is executable unless the U.S. Court of Appeals for the 4th Circuit intervenes.
SIX-YEAR-OLD IMMIGRATION COURT ERROR HAUNTS KILMAR ABREGO GARCIA CASE
In similar cases, appellate courts have been reluctant to disturb habeas-based release orders where the government lacks a valid statutory foundation for detention. However, Abrego Garcia’s case is novel in that all signs suggest an immigration judge did, in fact, order his deportation — just not to his home country of El Salvador.
For now, the ruling returns Abrego Garcia to the supervision framework that existed before his redetention, while his broader habeas challenge to the government’s third-country removal practices continues in federal court.
