Kilmar Abrego Garcia Released but Faces New Legal Hurdles

I last wrote about Kilmar Ábrego García in August. At that time, the administration of cult leader, convicted felon, and failed President Donald Trump was attempting to deport Ábrego to Uganda. In the final paragraph of that post, I mentioned that Ábrego's lawyers had filed a writ of habeas corpus in federal court. Yesterday, United States District Judge Paula Xinis issued an opinion in the matter. Not to put too fine a point on things, but it was a doozy. Xinis found that Ábrego, who at the time was in federal custody, was being unlawfully held, and she ordered his immediate release. As a result, Ábrego was released from custody last night. However, the Trump administration is not finished with its persecution of this man and late yesterday engaged in some highly irregular and potentially unlawful behavior that threatened Ábrego's freedom.

Because events are very fluid at the moment, this post may be out-of-date as soon as it is published. However, at the moment, Ábrego remains free. By way of background, Ábrego is a national of El Salvador who came to the United States in 2012 when he was 16 years old. Ábrego has claimed that he was attempting to escape danger from a gang named Barrio 18. In later years, Ábrego married an American citizen and had a son who is a U.S. citizen. In 2019, Ábrego was taken into custody by Prince George’s County, MD police and accused of being a member of MS-13. At that time, the government began deportation proceedings against him. In response, Ábrego asked that he be granted asylum or be protected from removal. The immigration judge in the case rejected Ábrego's request for asylum but granted withholding of removal. Xinis found that no order for removal had been issued in Ábrego's case. This is rather extraordinary because the government has repeatedly claimed in public that such an order was issued. The existence of this order has been widely accepted and I have even written in earlier blog posts that there was such an order. To learn now that the government has been lying all this time is incredible.

In March, Ábrego was arrested while driving with his son. Three days later, he was deported to El Salvador along with alleged Venezuelan gang members and held in the notorious Terrorism Confinement Center or CECOT. This was in direct contravention of the 2019 withholding order. Government officials agreed that Ábrego should not have been sent to El Salvador and attributed his deportation to an administrative error. Lawyers representing Ábrego went to federal court in Maryland where Xinis heard the case and issued an order for the government to secure Ábrego's return to the United States. The decision was appealed and eventually reached the Supreme Court where justices ruled that the government should "facilitate" Ábrego's release back to the United States.

The government failed to facilitate Ábrego's release, claiming that it had no authority to do so since Ábrego was in Salvadoran custody. However, in June, the Trump administration secured an indictment of Ábrego in Tennessee on charges of human trafficking and arranged for Ábrego to return to face trial. In order to obtain this indictment, the government agreed to deals with three convicted felons, which included their release from federal custody. On their face, the charges were a clear-cut case of vindictive and selective prosecution, and a veteran prosecutor of many years who was originally assigned to the case resigned rather than pursue it. After a number of hearings, the judge in the Tennessee case agreed to release Ábrego and allow him to return to Maryland. Three days later, Ábrego was taken into custody while attending a required meeting at the Baltimore Immigration and Customs Enforcement office. At that time, the government informed the court that it intended to deport Ábrego to Uganda.

Ábrego opposed being sent to Uganda but expressed a willingness to be deported to Costa Rica. However, the government claimed that Costa Rica was unwilling to accept him. This is a claim that Xinis found to be false. The government also expressed a desire to deport Ábrego to Eswatini rather than Uganda as it had originally suggested. Deputy Assistant Director of ICE Enforcement and Removal Operations, John Schultz, later testified before Xinis that both Uganda and Eswatini had said "no" to requests that they accept Ábrego. Trump officials then announced that Ábrego would be sent to Ghana, something that the Ghanaian foreign minister immediately rejected. Government officials continued to insist that Costa Rica was unwilling to accept Ábrego and, instead, said that they would send him to Liberia. The government then sent ICE Acting Assistant Director for the Removal Division, Johnathan Cantú, to testify about Costa Rica's refusal, but he arrived at the hearing entirely unprepared and uninformed. Cantú even admitted that his statement had been written by someone else and that he didn't know anything about its contents. His claims about Costa Rica were immediately refuted by a public statement by Costa Rican authorities.

Ábrego then argued that the government, despite the many public claims, does not have a lawful final order of removal that would authorize his legal deportation. U.S. law requires an explicit order of removal. As Xinis wrote in her decision, "No such order of removal exists for Abrego Garcia." In fact, as Xinis documents, no government official testified in court that such an order exists. Instead, the government has suggested that an order of removal is implied by the fact that an immigration judge issued a withholding order. The government contends that a withholding order would not be necessary in the absence of an order of removal. Xinis rejected this logic because it does not meet the requirement of an explicit order. It is simply remarkable how widespread the false suggestion that there has been a final order of removal since 2019 has become. As I said, even I believed it and I have been following this case very closely. But, without such an order existing, Xinis found that there was no basis for Ábrego's continued detention and ordered his immediate release. Subsequently, Ábrego was freed from a detention facility in Pennsylvania yesterday evening.

Ábrego has repeatedly embarrassed the Trump administration, primarily by revealing the administration's incompetence. The administration wrongly deported him to El Salvador, lied about its ability to facilitate Ábrego's return, indicted him on trumped-up charges, misled the court about potential third countries to which Ábrego could be removed, and exposed the government as not even having an order for his removal. Given the lengths to which the Trump administration has shown itself willing to go to persecute Ábrego, it would be naive to think that Trump officials would stop with Ábrego's release. Indeed, they did not.

One of the conditions of Ábrego's release was that he appear in person today at 8:00 a.m. at the ICE Baltimore Field Office. The last time that Ábrego complied with such an order, he was taken into custody. The order for Ábrego to appear at the office also claimed that he was "ordered removed" from the U.S. on October 10, 2019. This is a reference to the immigration judge’s decision that Xinis found contains no such order and, indeed, a plain reading of the document shows that it does not. Last night, an immigration judge apparently modified the 2019 order and postdated it to that date. This so-called nunc pro tunc action makes the modification retroactive. The immigration judge claimed that he was correcting a "scrivener's error" and that an order for removal had been inadvertently left out. However, this is a highly unusual and possibly unlawful use of "scrivener's error" corrections, which are normally used to simply correct typos or misspellings. Ábrego quickly requested a temporary restraining order preventing his being taken into custody. Early this morning, Xinis granted the order. Xinis noted in her decision that even if the modified 2019 order were legitimate, the 90-day "removal period" would have expired nearly six years ago. Immigration lawyer Aaron Reichlin-Melnick, referring to the immigration judge's action, wrote that "It’s so flagrantly corrupt and a perversion of due process you almost have to laugh; then go off and file a bar complaint against the judge for violating ethics rules."

I should take this opportunity to remind that "immigration judges" are not Article III judges or part of the judiciary branch of government. Rather, they are executive branch employees. The Trump administration has been particularly aggressive about firing immigration judges that do not adhere to Trump's desires. Therefore, the judge who attempted to modify the 2019 decision was not so much making a legal determination as he was following orders.

Subsequently, Ábrego attended his required check-in this morning at the Baltimore ICE office and left without being detained. It is remarkable what Ábrego has gone through over the past 24 hours. He was released from detention on the grounds that there is no final order of removal to justify his continued detention, an immigration judge modified another judge's order and backdated it by 6 years, and then the government prepared to detain him at 8 a.m. before he had a chance to challenge it. It is only thanks to Ábrego's diligent attorneys and Judge Xinis (who appears never to sleep) that Ábrego is not currently being held pending deportation.

If you had any doubt that the Trump administration is led by sociopaths, you should need no further evidence than the treatment of Kilmar Ábrego García. Ábrego's problems primarily stem from a very suspect accusation in 2019 that he is a member of MS-13. The officer responsible for that allegation was subsequently suspended due to misconduct. The claims that support the accusation are contradictory and easily put in doubt. In March, the government made an error by detaining Ábrego and sending him to El Salvador. A normal government would simply admit its error and take steps to correct it. But our current government of sociopaths is simply not capable of doing such a thing. Instead, Trump officials have taken extraordinary steps to persecute someone who, at the very worst, might have several years ago driven other undocumented migrants from one location to another. Even that is very much in doubt. Trump once went on TV to display photographs that were easily shown to have been Photoshopped. Now, one of his pet immigration officials has essentially forged a document. This is a lawless group that deserves to face legal consequences far more than does Ábrego.