Kilmar Abrego Garcia: Federal judge bars ICE from re-detaining Garcia through Christmas

GREENBELT, Md. - A federal judge says Kilmar Abrego Garcia will remain free at least through Christmas after a judge in Maryland extended her order blocking the federal government from taking him into custody.

What we know:

Kilmar Abrego Garcia made his first in-person court appearance here at the federal courthouse in Greenbelt.

When he walked down the hallway to the courtroom, a line of supporters applauded him as he entered the courtroom. He appeared alongside a bevy of lawyers — Judge Paula Xinis remarked he could almost field a baseball team with the number of lawyers who entered an appearance on his behalf.

The image was in stark contrast to DOJ’s side of the dais — with just one lawyer, Ernesto Molina, the deputy director of immigration litigation.

Judge Xinis ruled from the bench that she was extending her temporary restraining order that blocks immigration officials from taking Kilmar Abrego Garcia back into custody.

She issued the original TRO 11 days ago shortly after she ordered his release from an ICE detention center in Pennsylvania because she was concerned DHS could try to re-detain him in the middle of the night.

Xinis pushed DOJ lawyers to tell her what they plan to do next and whether they want to take Abrego back into custody. Molina refused to take a position.

Instead, DOJ argues that the judge no longer has purview over this case now that she has granted Abrego’s release. They say the case should now proceed through immigration officials.

DOJ also reiterated that Abrego Garcia was found to be a danger to the community back in 2019 when an immigration judge reviewed his bid to stay in the United States.

Abrego’s immigration lawyer, Simon Sandoval, said the federal judge in Tennessee overseeing the criminal human smuggling charges against Abrego found that he was not a danger to the community when the judge ordered his release pending trial.

Abrego’s lawyers told the judge that he is willing to go to Costa Rica as early as this afternoon if the government would allow it.

Costa Rica has already agreed to accept him. But his ultimate preference is to stay here in Maryland with his family.

Big picture view:

Abrego Garcia, whose mistaken deportation to El Salvador has drawn national attention from both sides of the immigration debate, had been held since August. 

During that time, the government said it planned to deport him to Uganda, Eswatini, Ghana and, most recently, Liberia. 

But officials have made no attempt to send him to the one country he agreed to go to - Costa Rica. 

U.S. District Judge Paula Xinis has even accused the government of misleading her by falsely claiming Costa Rica would not accept him.

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," she wrote.

Xinis’ Dec. 11 ruling releasing Abrego Garcia from custody also found that the immigration judge who heard his case in 2019 never issued a removal order, meaning he cannot be deported anywhere until one exists.

READ MORE: Kilmar Abrego Garcia heading back to Maryland after judge orders his release from ICE custody

The backstory:

Abrego Garcia has an American wife and child and has lived in Maryland for years. He came to the U.S. illegally from El Salvador as a teenager. In 2019, an immigration judge granted him protection from being returned there, finding he faced danger from a gang targeting his family. But in March, he was mistakenly deported anyway. U.S. officials resisted calls to bring him back until the Supreme Court intervened. They have since said he cannot remain in the U.S. and must be deported to a third country.

In recent filings, government attorneys argued that, with or without a final removal order, they are still working to deport him and can legally detain him while that process continues.

"If there is no final order of removal, immigration proceedings are ongoing, and Petitioner is subject to pre-final order detention," they wrote. 

Abrego Garcia’s attorneys countered by citing a Supreme Court ruling that "because immigration proceedings ‘are civil, not criminal’ detention must be ‘nonpunitive.’" 

They argued his detention has become punitive because the government is seeking the authority to hold him indefinitely without a realistic plan to deport him.

"If immigration detention does not serve the legitimate purpose of effectuating reasonably foreseeable removal, it is punitive, potentially indefinite, and unconstitutional," they wrote.

READ MORE: Judge issues temporary order blocking ICE from detaining Kilmar Abrego Garcia