Federal judge to decide whether Kilmar Abrego Garcia should return to immigration custody

The Monday hearing was a glimpse into the complexity of immigration proceedings as Xinis tried to get information on the status of Abrego Garcia’s case. “I am trying to get to the bottom of whether there are going to be any removal proceedings,” she said as she questioned the government’s lawyer. “You haven’t told me what you’re going to do next."

Abrego Garcia, his wife and legal team were welcomed to the federal court building in Maryland by a boisterous reception that included a choir, bullhorn and drum as scores of supporters cheered. His mistaken deportation to El Salvador has become a lightning rod for both sides of the immigration debate. Inside the courtroom Abrego Garcia sat with at least half a dozen defense team members while a lone government attorney sat across from them.

Abrego Garcia had been in immigration detention since August before his Dec. 11 release. In that time, the government has said it planned to deport him to Uganda, Eswatini, Ghana and, most recently, Liberia. However, officials have made no effort to deport him to the one country he has agreed to go to — Costa Rica. U.S. District Judge Paula Xinis, in Maryland, has even accused the government of misleading her by falsely claiming that Costa Rica was unwilling to take him.

The government's “persistent refusal to acknowledge Costa Rica as a viable removal option, their threats to send Abrego Garcia to African countries that never agreed to take him, and their misrepresentation to the Court that Liberia is now the only country available to Abrego Garcia, all reflect that whatever purpose was behind his detention, it was not for the ‘basic purpose’ of timely third-country removal,” she wrote.

In court on Monday, Abrego Garcia's reiterated that he is prepared to go to Costa Rica “today.”

Xinis’ Dec. 11 order that Abrego Garcia be released from immigration custody also concluded that the immigration judge who heard his case in 2019 had failed to issue an order of removal from the U.S., and he cannot be deported anywhere without a removal order.

Abrego Garcia has an American wife and child and has lived in Maryland for years, but he immigrated to the U.S. illegally from El Salvador as a teenager. In 2019, an immigration judge granted him protection from being deported back to his home country, finding he faced danger there from a gang that had targeted his family. In March, he was mistakenly deported there anyway. U.S. officials resisted calls to bring him back until the Supreme Court weighed in. However, officials have said he cannot stay in the U.S. and have vowed to deport him to a third country.

In filings last week, government attorneys argued that, with or without a final order of removal, they are still working to deport Abrego Garcia, so they can legally detain him during the process.

“If there is no final order of removal, immigration proceedings are ongoing, and Petitioner is subject to pre-final order detention,” they wrote.

For their part, Abrego Garcia's attorneys cited a U.S. Supreme Court ruling that “because immigration proceedings ‘are civil, not criminal’ detention must be ‘nonpunitive.’” They argued that in Abrego Garcia's case, detention is punitive because the government wants to be allowed to hold him indefinitely without a viable plan to deport him.

“If immigration detention does not serve the legitimate purpose of effectuating reasonably foreseeable removal, it is punitive, potentially indefinite, and unconstitutional,” they wrote.

In addition to the Maryland case, Abrego Garcia is fighting human smuggling charges in a Tennessee court. His attorneys in that case on Friday asked the judge for sanctions after Border Patrol's Gregory Bovino made disparaging comments about their client on national news. The judge previously ordered Justice Department and Homeland Security officials to cease making comments that could prejudice Abrego Garcia's right to a fair trial.

Loller reported from Nashville, Tenn.