No single alien has drawn more media (and popular) attention than Salvadoran national Kilmar Abrego Garcia, alleged human smuggler, wife abuser, gang member, and “Maryland man”. His case has become a Rorschach test for how Americans view immigration enforcement under Trump II, but more importantly, it highlights what happens when cases are argued in the court of public opinion instead of courts of law.
A Quick Recap
As Judge Paula Xinis, the federal jurist handling Abrego’s case in the U.S. District Court for the District of Maryland (D. Md.) recently opined: “The history of Abrego Garcia’s case is as well known as it is extraordinary.” True that, but here are some basic facts.
In March 2012, 16-year-old Abrego entered the United States illegally.
He continued to reside here illegally until he was arrested by ICE in March 2019 based both on his illegal status and purported evidence linking him to MS-13, a violent criminal organization with its roots in Los Angeles and a significant presence in El Salvador and elsewhere.
While he was in ICE custody in April 2019, an immigration judge (IJ) in Baltimore, Md., denied Abrego’s request for release on bond, finding evidence in the case “shows that he is a verified member of MS-13”.
He appealed that bond denial, but the Board of Immigration Appeals (BIA) adopted and affirmed what it referred to as the IJ’s “danger ruling” eight months later.
While in detained removal proceedings, Abrego filed an application for asylum, “statutory withholding” of removal under section 241(b)(3) of the Immigration and Nationality Act (INA), and withholding of removal under the Convention Against Torture (CAT).
That application was heard by a second IJ, who on October 10, 2019, granted Abrego’s request for statutory withholding but denied his applications for asylum and CAT.
Three things stand out about the second IJ’s grant of statutory withholding — and have driven everything that’s happened in this case ever since.
First, as I explained on April 4, that statutory withholding grant was (in my opinion) in error as a matter of law.
To be granted that protection, Abrego was required to show by a preponderance of the evidence that he faced persecution if returned on account of at least one of the following five grounds: race, religion, nationality, membership in a particular social group, or political opinion.
The second IJ concluded it was more likely than not that Abrego would be persecuted upon return by the Barrio 18 gang due to his membership in a particular social group, “immediate family members of the Abrego family”.
In reality, based upon the facts as laid out in the second IJ’s decision and viewed in the best light to the alien, Abrego and his family members were threatened as part of an extortion scheme by Barrio 18 members, not because of their membership in that familial unit — and that, without more that doesn’t appear in the record, doesn’t merit statutory withholding protection.
Second, due to the IJ’s references at key points in his decision to “Guatemala”, not “El Salvador”, it’s not entirely clear from that decision that El Salvador was the country from which removal was withheld.
Third, a separate and more formal order issued by the second IJ, commonly referred to as a “minute order”, would have cleared up that confusion between El Salvador and Guatemala and finalized the case.
But as evidence in Abrego’s federal case ultimately revealed, the second IJ never issued such an order, and consequently never ordered Abrego removed and withheld his removal.
Matter of I-S- and C-S-
Consequently, the second IJ’s October 2019 decision had no real legal effect, and to explain why I turn to the BIA’s 2008 precedent opinion in Matter of I-S- and C-S-.
As in Abrego’s case, an IJ granted I-S- and C-S- statutory withholding without first issuing a formal removal order.
The IJ there contended that entry of a removal order prior to a grant of statutory withholding under section 241(b)(3) of the INA “was not mandated by statute or regulation”, but the BIA disagreed, concluding:
Although entering an order of removal prior to granting withholding may appear to be a technicality, it is not an insignificant one. It is axiomatic that in order to withhold removal there must first be an order of removal that can be withheld.
Plenty of Blame to Go Around
Score one for common sense, but under the precedent in Matter of I-S- and C-S-, everyone involved in that October 2019 removal proceeding — the ICE attorney representing the government, Abrego’s lawyer, and the second IJ and his staff — erred in some way in failing to correct that fatal flaw.
Both the ICE attorney and Abrego’s attorney should have filed a motion for clarification with the IJ to bring to his attention to the fact that his decision was incomplete, but then the IJ and court clerks should also have realized that fact when they were inputting the decision into the court’s electronic record.
For what it’s worth, the ICE attorney likely should have appealed that decision to the BIA both because it lacked a removal order and was thus incomplete and (again in my opinion) because it was legally erroneous.
That’s especially true given that ICE had argued — successfully — before the first IJ on bond that Abrego was an MS-13 member and a danger to the community.
Abrego’s actual statutory withholding claim hinged on his claim his mother ran a successful pupusa business, which drew Barrio 18’s (criminal) attention. Abrego’s claim would have made a lot more sense if, to the degree Barrio 18 was interested in Abrego at all, it was because he was a member of their bitter rival, MS-13 — but that wouldn’t have legally earned him statutory withholding, either.
The government did raise the MS-13 issue in response to Abrego’s applications for asylum, statutory withholding, or CAT, handing up evidence linking the applicant to the gang, but the IJ only referenced it in passing in a footnote, and then only to dismiss a separate claim for membership in a “particular social group” of “Salvadoran male deportees labeled as MS-13 gang members by U.S. law enforcement”.
Abrego’s Removal and Its Aftermath
Abrego Garcia was released following that grant, but rearrested by ICE on March 12, 2025, and sent to a detention facility in Texas. Thereafter, he was removed to El Salvador where the government placed him in its special prison for criminal risks, the Terrorism Confinement Center (CECOT), around March 16.
On March 24 — nine days after he arrived in El Salvador — Abrego Garcia, his wife, and minor child, through counsel, filed a “Complaint for Injunctive Relief and Declaratory Judgment” (complaint) in federal district court in Maryland.
The case was assigned to Judge Xinis, and on April 4, she issued an order directing the government to “facilitate and effectuate the return of ... Kilmar Armando Abrego Garcia to the United States by no later than 11:59 PM on Monday, April 7, 2025”.
On April 10, after staying that order, the Supreme Court weighed in, with the justices remanding the case to Judge Xinis to “clarify” her demand that the government “effectuate” the alien’s return, “with due regard for the deference owed to the Executive Branch in the conduct of foreign affairs”.
On June 6, Abrego was returned to the United States to face federal criminal charges in Tennessee, and on July 23, Judge Xinis issued an order directing that he not be taken into ICE custody in Tennessee, but rather placed under an “ICE Order of Supervision out of the Baltimore Field Office” if he were released from criminal detention.
In addition, given admitted efforts by the government to remove Abrego to a third country, she also required DHS to give him 72 hours’ notice before any such third-country transfer occurred.
Abrego was released from criminal detention by the court in Tennessee in August, but was taken back into ICE custody on August 25 when he responded to an ICE appearance order in Baltimore.
Abrego filed a new petition for writ of habeas corpus in the D. Md. that same day, alleging his continued immigration detention violated both the INA and the Due Process clause of the U.S. Constitution.
That matter (not surprisingly) was assigned to Judge Xinis, and on December 11, she realized at last what I have been saying since April: There was no actual removal order because the second IJ in October 2019 failed to issue one.
DHS’s Authority to Detain Aliens
She ordered Abrego released; normally I would say “consequently, she ordered Abrego released from custody”, but while that’s more or less what happened, the facts and law in this case aren’t quite as clear cut as she presented them in that order.
Section 241(a) of the INA directs DHS to take aliens under final orders of removal into custody, and paragraph (2) therein requires the department to detain those aliens pending removal from the United States.
In its 2001 opinion in Zadvydas v. Davis, however, the Supreme Court held that “this post-removal-period statute” doesn’t allow DHS to detain aliens under removal orders indefinitely, but only until “it has been determined that there is no significant likelihood of removal in the reasonably foreseeable future”, presumptively six months — much longer than Abrego was detained.
Judge Xinis admitted that “Zadvydas is an imperfect fit precisely because”, as she explained in her order, no removal order was issued in this case and DHS therefore has “no lawful authority to hold Abrego Garcia under” section 241 of the INA.
Nevertheless, she concluded that the “teachings” of Zadvydas “are nonetheless instructive”, but they’re likely not as “instructive” as she thinks. Let me explain.
Under section 241(a)(1)(B) of the INA, the “post-removal period” begins on one of three dates: (1) “the date the order of removal becomes administratively final”; (2) the date a federal court issues its final order if the alien files a petition for review of an administrative removal order under section 242 of the INA; or (3) the date the alien is released from criminal detention or confinement.
In most cases, a removal order is only administratively final under 8 C.F.R. § 1241.1 when the alien waives appeal of the IJ’s decision, or the alien fails to appeal the IJ’s decision within “the time allotted for an appeal”, or the BIA dismisses the alien’s appeal.
But, as Judge Xinis concluded (and I have long argued), no removal order had been issued in Abrego’s case at the time she issued her December 11 order and therefore neither the “post-removal-period statute” (again, section 241(a) of the INA) nor Zadvydas applies.
The Nunc pro Tunc IJ Removal Order and Judge Xinis’s TRO Order
A third IJ (Judge Philip Taylor) finally issued a removal order nunc pro tunc (Latin, “now for then”) on December 11, correcting the second IJ’s “scrivener's error” (confusing El Salvador and Guatemala) and complying with Matter of I-S- and C-S-.
IJ Taylor reserved appeal for both parties in that order, and by regulation (8 C.F.R. § 1003.38), both ICE and Abrego have 30 days to file an appeal with the BIA. Only once both parties either waive appeal or fail to file a timely appeal or the BIA dismisses Abrego’s appeal will that order be final.
As an aside, while IJ Taylor’s nunc pro tunc order, filed more than six years after the second IJ rendered his decision, may seem a little funky, such purely “ministerial” orders are not uncommon. And given Judge Xinis’ December 11 order and Matter of I-S- and C-S-, this one is required to perfect the record.
On December 12, however, after Abrego received IJ Taylor’s order and an “Order of Supervision” from ICE, he returned to Judge Xinis asking for a “Temporary Restraining Order” (TRO) preventing ICE from taking him back into custody.
In response, that same day, Judge Xinis issued a second order enjoining ICE from taking Abrego back into custody pending her consideration of the TRO.
No offense, but she appears to have acted a little precipitously.
That’s because — again given the facts as determined by Judge Xinis and under the precedent in Matter of I-S- and C-S- — Abrego is not under an “administratively final” removal order and therefore (again) neither the “post-removal-order” detention period in section 241(a) of the INA nor the detention limitations in Zadvydas applies.
If Abrego were again detained, it would be under section 236 of the INA, which governs pre-final order detention and allows ICE to either continue to detain aliens arrested on warrant, release them on a bond of not less than $1,500, or release them on “conditional parole”.
At that point, by regulation (8 C.F.R. § 1003.19), Abrego can ask the IJ to cut him loose, and if that request is denied, he can request that the BIA do so.
Note that section 236(e) of the INA (“Judicial review”) provides that administrative “discretionary judgments regarding” pre-order detentions and releases “shall not be subject to review”, and thus bars courts from “set[ting] aside any action or decision by the Attorney General under this section regarding the detention of any alien or the revocation or denial of bond or parole”.
Regardless, it’s not uncommon for federal district court judges to ignore the statute and consider pre-order detention in habeas. Consequently, if Abrego were again taken into custody and Judge Xinis wanted to order his release, that would arguably be the proper time for her to act. Not before.
Judge Xinis’s December 12 order smacks of “precrime”, a concept advanced in the 2002 sci-fi police thriller Minority Report to stop offenses before they occur, that has no place in our jurisprudence. Having made her (correct) findings about the lack of a final removal order for Abrego in her December 11 order, Judge Xinis should now allow the well-trod administrative review process to proceed.
Next Steps
Abrego already has filed a motion to reopen with the BIA, and IJ Taylor’s nunc pro tunc order gives him an opportunity to double down on that request on appeal.
If the BIA dismisses his motion to reopen and his appeal, his next option is the Fourth Circuit, not the D. Md., by filing a petition for review under section 242 of the INA. There’s plenty of due process built into this system, just not at this point in Judge Xinis’s court.
By the way, on Sunday DOJ filed its opposition to Abrego’s latest request for a TRO and its own motion to dissolve the injunction Judge Xinis issued on December 11, making many of the points I stated above and then some. We’ll see how the court rules then.
It’s hard to remember a case like Abrego’s, in which nearly everyone involved, over the course of more than six years, missed so many crucial facts. I understand this is an emotional matter, but that’s all the more reason everybody needs to step back, review the law and the facts, and let the familiar process Congress has created play itself out.