Remember Kilmar Abrego Garcia?
Today, Judge Paula Xinis ordered Kilmar Abrego Garcia released from immigration detention, granting his petition for habeas corpus. This is a signal ruling, though not the end of Abrego Garcia's journey through the looking glass world of a lawless executive branch's treatment of him.
In the earliest days of the Trump regime's lawless assault on immigrants, particularly their due process rights, Kilmar Abrego Garcia was among the people ICE deported to CECOT, the torture camp in El Salvador. All were sent without due process. Moreover, as the Trump regime admitted, Abrego Garcia's deportation was due to an "administrative error." Rather than act on this mistake, the Trump regime first insisted they did not have the authority to return him from El Salvador, though eventually, months later, the regime had him returned – but only to stand trial on criminal charges in Tennessee. Abrego Garcia was granted bail and released from criminal custody. Shortly thereafter, in late August, 2025, he reported for a mandatory check-in with ICE, when he was again put into immigration detention. The Trump regime told Abrego Garcia they were deporting him to Uganda; Abrego Garcia filed his petition for habeas corpus relief, alleging that he was being unlawfully held. Between August and the end of November, the Trump regime created an absurd circus around its renewed, supposed efforts to deport Abrego Garcia, delaying Judge Xinis' consideration of the merits of his habeas petition.
The details of what transpired drive home the utter mendacity of the Trump regime. As Judge Xinis explained in her opinion in support of the release order, despite a public offer by Costa Rica to accept Abrego Garcia and his willingness to go there, the Trump regime kept claiming it was deporting him to various African countries.
Abrego Garcia objected to being sent to Uganda because he feared persecution and torture there. So, ICE announced to him that he would be sent to Eswatini. Again, Abrego Garcia said he feared persecution and torture there. For its part Eswatini publicly announced it had not received any communication from the U.S. regarding Abrego Garcia, and that Eswatini would not accept him.
This kicked off efforts by Judge Xinis to ascertain whether the Trump executive branch had made any serious attempt to remove Abrego Garcia to Uganda, Eswatini, Costa Rica, or any country other than El Salvador, the one country a U.S. immigration judge had previously found he could not be sent to, due to his credible fear of persecution and torture there. This finding was the ground of the "administrative error" in sending Abrego Garcia to CECOT.
Judge Xinis held a hearing. The Trump regime proffered one declarant, an ICE administrator, who, contrary to the judge's order, was totally unprepared to discuss Costa Rica. Instead, this declarant named Ghana as the country to which Abrego Garcia would be deported. Following in Eswatini's footsteps, Ghana immediately announced it would not accept Abrego Garcia. Judge Xinis announce her intention to quickly address the merits of Abrego Garcia's habeas petition. The Trump regime responded by announcing they now planned to send Abrego Garcia to Liberia. The regime claimed that Costa Rica had rescinded its willingness to accept him.
Judge Xinis scheduled another hearing regarding these pronouncements. Again, the Trump regime proffered a single declarant, a different ICE administrator than at the previous hearing. This declarant "candidly admitted...he had no prior involvement in Abrego Garcia's case and spent five minutes preparing to testify." The regime offered no communication from Costa Rica expressing its supposed change of mind. Unsurprisingly the declarant knew nothing about anything about the Costa Rica situation. Within twenty-four hours, Costa Rica publicly reiterated that "its offer to grant Abrego Garcia residence and refugee status is, and always has been, firm, unwavering, and unconditional."
Ever since, the Trump regime has said nothing more to the public or to Judge Xinis about any plans to remove Abrego Garcia from the United States. Judge Xinis turned her attention to the merits of the Abrego Garcia's contention that the Trump regime was unlawfully keeping him in an immigration detention facility. Today, the judge agreed with him.
Before explaining the specifics of Judge Xinis' reasoning, here is a quick review of what is involved when ICE detains somebody. Centrally, immigration detention is not criminal detention; it does not result from any criminal proceedings. The detention and deportation of immigrants is governed by federal civil law, the Immigration and Nationality Act (INA). This complex statute includes the establishment of immigration courts, civil tribunals to hear the cases of those ICE detains and the Department of Homeland Security or the Attorney General or both seeks to deport. These tribunals are not judicial branch courts created by the U.S. Constitution in Article III. They are executive branch bodies, and their decisions are reviewable by judicial courts, however, according to the INA, some of their determinations are only reviewable by federal appellate courts and not by federal district courts.
A claim arising from an action by the Attorney General to execute a removal order is one that can only be properly reviewed by a federal appellate court. In response to Abrego Garcia's habeas petition in federal district court, the Trump regime maintained that the district court did not have proper authority to consider the question, because, according to the Trump regime, Abrego Garcia was challenging the execution of a removal order against him.
Today, Judge Xinis found that there is no removal order against Abrego Garcia, and that therefore he cannot be characterized as challenging the execution of such an order. In fact, Abrego Garcia has been challenging his detention on the ground that there is no final order of removal against him, and without that, he cannot be indefinitely detained in immigration custody. As Xinis stated: "The absence of a removal order raised an intractable problem for [the Trump regime]."
Xinis could have stopped at this point, but she went on to address an alternative argument Abrego Garcia had made. He contended that he was being deprived of due process rights the Supreme Court has held belong to people who are subject to actual final orders of removal. In Zadvydas v. Davis, the Supreme Court ruled that such people cannot be detained indefinitely; detention to effectuate a removal order can only be for reasonably necessary periods. If there is no likely prospect of removing a person in the foreseeable future, that person cannot be kept in immigration detention.
In Abrego Garcia's case, ICE has been holding somebody not subject to a final removal order and they have not had any meaningful plan to remove him. To quote Judge Xinis, the Trump regime'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...all reflect that whatever purpose was behind his detention, it was not...timely third-country removal."
In sum: under the INA, the Trump executive branch, the Trump regime had no basis for detaining Abrego Garcia and even had they had an appropriate basis, their handling of the process whereby they were allegedly trying to remove him was constitutionally defective because in violation of his right to due process.
You might wonder why Judge Xinis gave the Trump regime from August until today before announcing her decision on the merits Abrego Garcia's case. Remember that the Roberts Court insists that the very greatest deference be given by judges to the Trump executive branch. So before making any decision adverse to it, a judge must give the regime every opportunity to present facts in support of its position. Hence Xinis's multiple hearings on the regime's supposed efforts to deport Abrego Garcia to a country other than El Salvador. What these hearings demonstrated was the regime's total lack of seriousness about these efforts. Xinis was also giving the Trump executive extensive time to produce an actual order of final removal against Abrego Garcia. Her goal: to reach the merits of habeas relief once the record firmly established her willingness to give the Trump regime every opportunity to make its case.
Xinis took the right approach if Abrego Garcia is to have any chance of release from ICE detention, because the Trump regime is bound to appeal her decision. But it is worth noting that the Roberts Court's insistence on such extreme care and handling of the Trump executive meant that Abrego Garcia sat in ICE custody for months while the executive obfuscated and lied.