Federal judge to decide whether Kilmar Abrego Garcia should return to immigration custody

GREENBELT, Md. (AP) — A federal judge on Monday will hear arguments about whether Kilmar Abrego Garcia should be returned to immigration custody after being free for just over a week.

Abrego Garcia, whose mistaken deportation to El Salvador has become a lightning rod for both sides of the immigration debate, had been in immigration detention since August. In that time, the government has said it planned to deport him to Uganda, Eswatini, Ghana and, most recently, Liberia. However, officials have made no effort to deport him to the one country he has agreed to go to — Costa Rica. U.S. District Judge Paula Xinis, in Maryland, has even accused the government of misleading her by falsely claiming that Costa Rica was unwilling to take 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 order that Abrego Garcia be released from immigration custody also concluded that the immigration judge who heard his case in 2019 had failed to issue an order of removal from the U.S., and he cannot be deported anywhere without a removal order.

Abrego Garcia has an American wife and child and has lived in Maryland for years, but he immigrated to the U.S. illegally from El Salvador as a teenager. In 2019, an immigration judge granted him protection from being deported back to his home country, finding he faced danger there from a gang that had targeted his family. In March, he was mistakenly deported there anyway. U.S. officials resisted calls to bring him back until the Supreme Court weighed in. However, officials have said he cannot stay in the U.S. and have vowed to deport him to a third country.

In filings last week, 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.

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

Meanwhile, 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 Abrego Garcia’s case, detention is punitive because the government wants to be allowed to hold him indefinitely without a viable 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.