Judge orders immediate release of Kilmar Abrego Garcia from immigration detention

(NEW YORK) — A federal judge has ordered the immediate release of Kilmar Abrego Garcia from immigration detention.

U.S. District Judge Paula Xinis said in her order Thursday that “since Abrego Garcia’s wrongful detention in El Salvador, he has been re-detained, again without lawful authority.”

Xinis said that the absence of a removal order prevents the government from removing Abrego Garcia from the United States.

Abrego Garcia, a Salvadoran native who had been living in Maryland with his wife and children, was deported in March to El Salvador’s CECOT mega-prison — despite a 2019 court order barring his deportation to that country due to fear of persecution — after the Trump administration claimed he was a member of the criminal gang MS-13, which he denies.

He was brought back to the U.S. in June to face human smuggling charges in Tennessee, to which he has pleaded not guilty.

After being released into the custody of his brother in Maryland pending trial, he was again detained by immigration authorities and is currently being held in a detention facility in Pennsylvania.

Department of Homeland Security spokesperson Tricia McLaughlin said in a social media post following the ruling, “This is naked judicial activism by an Obama appointed judge. This order lacks any valid legal basis and we will continue to fight this tooth and nail in the courts.”

Last month, the federal government — seeking to deport Abrego Garcia to the West African nation of Liberia — asked Xinis to dissolve a ban on his removal to that country, saying it had received assurances from the Liberian government that he would not be persecuted or tortured should he be deported there.

In her order Thursday, Judge Xinis directed the government to notify Abrego Garcia of the exact time and location of his release and to notify the court no later than 5 p.m. ET today.

In the 31-page order granting Abrego Garcia’s habeas petition, Xinis detailed Abrego Garcia’s removal to El Salvador, his return to the U.S. to face criminal charges, and his re-detention in immigration custody.

“The circumstances of Abrego Garcia’s detention since he was released from criminal custody cannot be squared with the ‘basic purpose’ of holding him to effectuate removal,” Xinis said.

Xinis, citing reporting from ABC News and others, said the government at the same time could have removed Abrego Garcia to Costa Rica, his preferred country of removal.

“Respondents’ calculated effort to take Costa Rica ‘off the table’ backfired,” Xinis wrote. “Within 24 hours, Costa Rica, through Minister Zamora Cordero, communicated to multiple news sources that its offer to grant Abrego Garcia residence and refugee status is, and always has been, firm, unwavering, and unconditional.”

“Respondents serially ‘notified’ Abrego Garcia — while he sat in ICE custody — of his expulsion to Uganda, then Eswatini, then Ghana; but none of these countries were ever viable options,” Xinis wrote.

The judge said Abrego Garcia will receive instruction from the United States Pretrial Services Office on the release conditions previously imposed in his criminal case.

Xinis in August blocked the government from removing Abrego Garcia from the United States until the habeas case challenging his removal was resolved in court.

“The history of Abrego Garcia’s case is as well known as it is extraordinary,” Xinis wrote in her decision Thursday.

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