A federal judge is set to decide whether Kilmar Abrego Garcia, who was mistakenly deported to El Salvador and has spent less than two weeks free, should be returned to immigration custody.
Background of Abrego Garcia
Abrego Garcia immigrated illegally from El Salvador as a teenager and has lived in Maryland for years. He has an American wife and child. In 2019, an immigration judge granted him protection from being deported back to his home country, finding he faced danger from a gang that had targeted his family. Despite this protection, he was mistakenly deported to El Salvador in March and officials resisted calls to bring him back until the Supreme Court weighed in.
Government’s Deportation Plans
Since August, Abrego Garcia has been in immigration detention. The government has announced plans to deport him to Uganda, Eswatini, Ghana, and most recently Liberia. However, officials have made no effort to send him to Costa Rica, the only country he has agreed to. U.S. District Judge Paula Xinis in Maryland accused the government of misleading her by falsely claiming that Costa Rica was unwilling to accept him.
Judge Xinis’ Dec. 11 Order
Judge Xinis’ order to release Abrego Garcia from immigration custody concluded that the immigration judge who heard his case in 2019 failed to issue a removal order from the U.S., and that he cannot be deported anywhere without such an order. She wrote:
“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.”
Legal Arguments in Recent Filings
In recent filings, 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. They wrote:
“If there is no final order of removal, immigration proceedings are ongoing, and Petitioner is subject to pre-final order detention.”
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 his case, detention is punitive because the government wants to hold him indefinitely without a viable plan to deport him. They wrote:
“If immigration detention does not serve the legitimate purpose of effectuating reasonably foreseeable removal, it is punitive, potentially indefinite, and unconstitutional.”
Key Takeaways
- Abrego Garcia was mistakenly deported to El Salvador despite a 2019 protection order.
- The government has announced removal to several African countries but has not acted on Costa Rica, the only country he agreed to.
- Judge Xinis’ order highlights the lack of a removal order and questions the legality of continued detention.
The upcoming hearing will determine whether the government can continue to detain Abrego Garcia while pursuing a removal plan that has yet to materialize.
