What to know about Kilmar Abrego Garcia's release from immigration custody

Abrego Garcia is fighting his deportation in federal court in Maryland, where his attorneys claim the administration is manipulating the immigration system to punish him for successfully challenging his earlier deportation.

Here’s what to know about the latest developments in the case:

Who is Kilmar Abrego Garcia?

Abrego Garcia is a Salvadoran citizen with an American wife and child who has lived in Maryland for years. He immigrated to the U.S. illegally as a teenager to join his brother, who had become a U.S. citizen. In 2019, an immigration judge granted him protection from being deported back to his home country.

While he was allowed to live and work in the U.S. under Immigration and Customs Enforcement supervision, he was not given residency status. Earlier this year, he was mistakenly deported to El Salvador, despite the earlier court ruling.

In custody since March

When Abrego Garcia was deported in March, he was held in a notoriously brutal Salvadoran prison despite having no criminal record.

The Trump administration initially fought efforts to bring him back to the U.S. but eventually complied after the U.S. Supreme Court weighed in. He returned to the U.S. in June, only to face an arrest warrant on human smuggling charges in Tennessee. Abrego Garcia was held in a Tennessee jail for more than two months before he was released on Friday, Aug. 22, to await trial in Maryland under home detention.

His freedom lasted a weekend. On the following Monday, he reported to the Baltimore immigration office for a check-in and was immediately taken into immigration custody. Officials announced plans to deport him to a series of African countries, but they were blocked by an order from U.S. District Judge Paula Xinis in Maryland.

No deportation order

On Thursday, after months of legal filings and hearings, Xinis ruled that Abrego Garcia should be released immediately. Her ruling hinged on what was likely a procedural error by the immigration judge who heard his case in 2019.

Normally, in a case like this, an immigration judge will first issue an order of removal. Then the judge will essentially freeze that order by issuing a “withholding of removal" order, according to Memphis immigration attorney Andrew Rankin.

In Abrego Garcia's case, the judge granted withholding of removal to El Salvador because he found Abrego Garcia's life could be in danger there. However, the judge never took the first step of issuing the order of removal. The government argued in Xinis' court that the order of removal could be inferred, but the judge disagreed.

Without a final order of removal, Abrego Garcia can't be deported, Xinis ruled.

Possible next steps

The only way to get an order of removal is to go back to immigration court and ask for one, Rankin said. But reopening the immigration case is a gamble because Abrego Garcia's attorneys would likely seek protection from deportation in the form of asylum or some other type of relief.

One wrinkle is that immigration courts are officially part of the executive branch, and the judges there are not generally viewed as being as independent as federal judges.

“There might be independence in some areas, but if the administration wants a certain result, by all accounts it seems they’re going to exert the pressure on the individuals to get that result,” Rankin said. “I hope he gets a fair shake, and two lawyers make arguments — somebody wins, somebody loses — instead of giving it to an immigration judge with a 95% denial rate, where everybody in the world knows how it’s gonna go down.”

Alternatively, the government could appeal Xinis' order to the 4th U.S. Circuit Court of Appeals and try to get her ruling overturned, Rankin said. If the appeals court agreed with the government that the final order of removal was implied, there could be no need to reopen the immigration case.

Free for now

In compliance with Xinis' order, Abrego Garcia was released from immigration detention in Pennsylvania on Thursday evening and allowed to return home for the first time in months. However, he was also told to report to an immigration officer in Baltimore early the next morning.

Fearing that he would be detained again, his attorneys asked Xinis for a temporary restraining order. Xinis filed that order early Friday morning. It prohibits immigration officials from taking Abrego Garcia back into custody, at least for the time being. A hearing on the issue could happen as early as next week.

The criminal case continues

Meanwhile, in Tennessee, Abrego Garcia has pleaded not guilty in the criminal case where he is charged with human smuggling and conspiracy to commit human smuggling.

Prosecutors claim he accepted money to transport, within the United States, people who were in the country illegally. The charges stem from a 2022 traffic stop in Tennessee for speeding. Body camera footage from a Tennessee Highway Patrol officer shows a calm exchange with Abrego Garcia. There were nine passengers in the car, and the officers discussed among themselves their suspicions of smuggling. However, Abrego Garcia was eventually allowed to continue driving with only a warning.

Abrego Garcia has asked U.S. District Court Judge Waverly Crenshaw to dismiss the smuggling charges on the grounds of “selective or vindictive prosecution.”

Crenshaw earlier found “some evidence that the prosecution against him may be vindictive” and said many statements by Trump administration officials “raise cause for concern.” Crenshaw specifically cited a statement by Deputy Attorney General Todd Blanche on a Fox News Channel program that seemed to suggest the Justice Department charged Abrego Garcia because he won his wrongful-deportation case.

The two sides have been sparring over whether senior Justice Department officials, including Blanche, can be required to testify in the case.