Federal judge orders ICE release Kilmar Ábrego García immediately

GREENBELT, Md. (CN) — A federal judge on Thursday ordered Kilmar Ábrego García be immediately released from U.S. Immigration and Customs Enforcement custody, after finding an immigration judge never issued a removal order required for his deportation.

U.S. District Judge Paula Xinis, a Barack Obama appointee, granted the Maryland man’s habeas petition and determined the government had no lawful authority to detain Ábrego García following his return from El Salvador in June, after his wrongful deportation to the infamous CECOT megaprison in March.

Ábrego García had been in ICE custody since August, when he was arrested during a mandatory immigration check-in at the agency’s Baltimore field office.

He had been released from criminal detention in Tennessee the previous Friday, where he faced criminal human smuggling charges only brought after the government facilitated Ábrego García’s return.

Xinis’ order further prevents the government from immediately deporting him to Liberia — throughout the proceedings, the Justice Department identified three other African nations as potential destinations: Uganda, Eswatini and Ghana — as ICE would need to reopen his immigration case to obtain a removal order.

“Because respondents have no statutory authority to remove Ábrego García to a third country absent a removal order, his removal cannot be considered reasonably foreseeable, imminent or consistent with due process,” Xinis wrote. “Although respondents may eventually get it right, they have not as of today. Thus, Ábrego García’s detention for the stated purpose of third-country removal cannot continue.”

If the government were to reopen his immigration case, it would likely have to ultimately deport Ábrego García to Costa Rica, where he repeatedly stated he would willingly go.

Costa Rica has provided explicit assurances that it would accept Ábrego García and prevent his re-deportation to El Salvador, assurances the other third countries did not provide.

Xinis wrote that the government’s continued identification of new African countries he could be deported to while Ábrego García remained in ICE custody, while ignoring Costa Rica, lent proof to the idea his detention was vindictive.

“Respondents’ persistent refusal to acknowledge Costa Rica as a viable removal option, their threats to send Ábrego García to African countries that never agreed to take him, and their misrepresentation to the court that Liberia is now the only option available to Ábrego García, all reflect that whatever purpose was behind his detention, it was not for the ‘basic purpose’ of timely third-country removal,” Xinis said.

Throughout her opinion, Xinis highlighted how the Justice Department seemed to stonewall or outright mislead her when she sought answers about the government’s plans for Ábrego García.

When she ordered the government to provide witness testimony from ICE officials, they repeatedly brought people with no personal knowledge of the case who could only speak to ICE’s general procedures, and in one instance only procedures from years ago.

“At the hearing on Nov. 20, it became evident that once again, respondents defied this court’s orders,” Xinis said. “They simply refused to prepare and produce a witness with knowledge to testify in any meaningful way. [Jonathan] Cantú candidly admitted, for example, that he had no prior involvement in Ábrego García’s case and spent approximately five minutes preparing to testify.”

Xinis recounted how Cantú, the ICE acting assistant director for the Removal Division, could not answer basic questions about a sworn declaration filed in his name regarding discussions with Costa Rica.

She added that, during a sidebar between DOJ attorney Jonathan Guynn, fellow DOJ attorneys and Cantú, Guynn said, “I’ll just say I told you this was exactly what was going to happen.”

Department of Homeland Security Assistant Secretary of Public Affairs Tricia McLaughlin slammed Xinis’ decision in a post on X.

“This is naked judicial activism by an Obama-appointed judge,” McLaughlin said. “This order lacks any valid legal basis and we will continue to fight this tooth and nail in the courts.”

The Justice Department is likely to appeal the decision to the Fourth Circuit Court of Appeals.

“As before, Ábrego García’s case demands judicial intervention to ensure that respondents choose constitutionally permissible means of implementing the [Immigration and Nationality Act],” Xinis concluded. “Because Ábrego García has been held in ICE detention to effectuate third-country removal absent a lawful removal order, his requested relief is proper.”

“Separately, respondents’ conduct over the past months belie that his detention has been for the basic purpose of effectuating removal, lending further support that Ábrego Garcia should be held no longer,” she added.

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