A federal judge ordered the Trump administration on Thursday to “immediately” release Kilmar Abrego Garcia, ruling that the migrant’s detention violates his rights.
Judge Paula Xinis, an Obama appointee to the court in Maryland, said the government has never produced a deportation order to show that Mr. Abrego Garcia faces imminent removal. So she said his arrest and continued detention weren’t justified.
“No such order of removal exists for Abrego Garcia,” the judge wrote.
Mr. Abrego Garcia is the most prominent illegal immigrant in the country today. His case became a major cause for Democrats who rallied to his defense after he was arrested and flown back to El Salvador in March despite an immigration judge’s order that he not be returned to his home country.
Judge Xinis ordered he be brought back, but the administration resisted, finally moving to return him to the United States after it secured a criminal indictment against him on a charge of migrant smuggling.
The judge in the criminal case granted Mr. Abrego Garcia pretrial release, but he was quickly rearrested in his immigration deportation case.
The problem, Judge Xinis said, is that the arrest was made without a warrant. That would be acceptable if there was already a deportation order, which the government suggested there was.
Judge Xinis said that without such an order, the government could not have legally arrested him to pursue his deportation to a country other than El Salvador.
“Accordingly, because Respondents continue to detain Abrego Garcia solely for the purpose of effectuating third-country removal under §1231 but lack any authority to effectuate such removal absent a removal order, his continued detention must end,” she wrote.
She ordered that Mr. Abrego Garcia be restored to the pretrial release conditions imposed on him in his criminal case.
Homeland Security decried the judge’s decision.
“This is naked judicial activism by an Obama-appointed judge. This order lacks any valid legal basis and we will continue to fight this tooth and nail in the courts,” Assistant Secretary Tricia McLaughlin said.
Mr. Abrego Garcia went before an immigration judge in 2019 and was found to be a deportable alien. He was granted withholding of removal to El Salvador, which is a legal ruling that suggests he is deportable but, because of the fear of persecution, he couldn’t be sent back to that one country.
Implicit in that withholding order was the sense that he could be deported.
But Judge Xinis said there should have been an explicit order. Yet the government has never been able to produce it, despite her repeated prodding.
Administration officials have implicated Mr. Abrego Garcia in a host of crimes.
While he’s been formally charged only in connection with a 2022 smuggling allegation in Tennessee, prosecutors say he also solicited sexually explicit photos from an underage girl, was a member of the MS-13 gang and was the muscle for an expansive migrant smuggling operation.
He wasn’t charged with the 2022 smuggling incident until the government renewed its investigation earlier this year, after he was wrongly deported to El Salvador.
Mr. Abrego Garcia’s lawyers, in briefs filed in the criminal case in Tennessee, said the other allegations are tainted because they arose only after the administration went looking for them, cutting deals with others to get dirt on him.
They have challenged the prosecution of Mr. Abrego Garcia as vindictive.
Mr. Abrego Garcia was identified as a likely member of MS-13 by the police gang unit in Prince George’s County, Maryland. Officers said he was identified by gang nickname and rank by a confidential informant.
In the months since Mr. Abrego Garcia has been back in the U.S., the Trump administration, while pursuing the criminal case, has also been seeking to deport him to another country.
He said he was willing to go to Costa Rica, and that nation would take him. The Trump administration resisted and instead sought a country in Africa that would take him.
Liberia stepped up and said it would.
Mr. Abrego Garcia, though, resisted that move.
Judge Xinis said even if there had been a valid deportation order, the ongoing detention of Mr. Abrego Garcia was contrary to the Zadvydas case, a 2001 Supreme Court ruling that limited immigration detention when deportation isn’t imminent.
“Respondents’ 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 ruled.
Mr. Abrego had become the early focal point of Democrats’ resistance to the Trump deportation push.
Several members of Congress made pilgrimages to try to see him in El Salvador.
One of those was Sen. Chris Van Hollen, Maryland Democrat, who said the Trump administration was denying the illegal immigrant full due process rights.
“Today’s ruling by Judge Xinis – requiring the government to immediately release him – is a clear repudiation of those attempts and a forceful stand for our Constitution and the rights of all those in our nation,” Mr. Van Hollen said Thursday.
