The Trump administration is once again battling to keep Kilmar Abrego Garcia in detention, telling a federal judge to butt out of what the government says are core executive branch determinations about whether an illegal immigrant needs to be kept in custody while awaiting deportation.
Homeland Security wants to rearrest Mr. Abrego Garcia, after U.S. District Judge Paula Xinis ordered him released last week, saying a 2019 deportation order seemed to have omitted the actual words ordering him to be removed.
The government rushed to a new immigration judge and secured such an order and directed Mr. Abrego Garcia to turn himself in on Saturday.
But Judge Xinis, an Obama appointee, stepped in hours ahead of that deadline with a new blockade, signaling suspicion of the new deportation order — which she repeatedly put in quote marks — and forbidding the government from rearresting Mr. Abrego Garcia this weekend.
Her temporary restraining order blocking any new arrest said judges’ power to rein in the executive branch is now at stake.
“For the public to have any faith in the orderly administration of justice, the court’s narrowly crafted remedy cannot be so quickly and easily upended without further briefing and consideration,” she said.
But Ernesto Molina Jr., the government’s lawyer, said the law gives the administration wide latitude to detain illegal immigrants awaiting deportation, and he said that easily covers Mr. Abrego Garcia’s case.
For one thing, he said, the new immigration court order includes the correct language about deportation. It becomes final 30 days after it was issued and can be appealed, but in the meantime, he is “subject to continued detention,” Mr. Molina said.
He said Mr. Abrego Garcia himself conceded his “removability” — admitted he was in the country without permission and could be deported — in his 2019 immigration case.
Having an immigration court confirm that with a new deportation order puts the matter beyond Judge Xinis, Mr. Molina argued.
He also said the original immigration judge, and later the full Board of Immigration Appeals (BIA), found Mr. Abrego Garcia to be a member of the MS-13 gang and a danger to public safety.
“The administrative proceedings before neutral adjudicators have assessed the degree of danger that Abrego Garcia presents to the United States, and that is the precise sort of national security judgment on which the Executive is entitled to peak deference,” Mr. Molina said in a court filing Sunday.
He said any appeal of the new deportation order must go through the BIA, and can then be appealed to a federal circuit court. He said Judge Xinis is not part of that chain.
Mr. Abrego Garcia is the most prominent illegal immigrant in the country today. His case became a major cause for Democrats who rallied to his defense, even as the administration has implicated him in an alleged string of lawlessness to include soliciting sexual photos of an underage girl and acting as the muscle of a major migrant smuggling operation.
Matthew J. O’Brien, a former immigration judge and now deputy executive director at the Federation for American Immigration Reform, said both the administration and Judge Xinis have turned the case into a fiasco.
He said Judge Xinis is wrong on the law, including her repeated insertions as a federal district judge into deportation and detention decisions, which he said Congress left to the immigration courts. But he said the administration’s decision to fight the case to expose Judge Xinis as a judicial activist has meant keeping Mr. Abrego Garcia in the U.S. much longer than necessary.
“This thing is becoming a self-licking ice cream cone, when what everybody’s responsibility should be is how do we protect the American public from a guy who clearly should not be here in the first place,” Mr. O’Brien said.
He said the administration has the better of the legal arguments, including that there was no need to un-deport Mr. Abrego Garcia in the first place, and that his 2019 order was actually a valid deportation directive.
“She’s completely wrong about that,” Mr. O’Brien said.
Mr. Abrego Garcia was first arrested by the Trump administration on March 12. He was deported to El Salvador three days later, despite the immigration court’s order that he not be sent to that country.
Facing a previous order by Judge Xinis to un-deport him, the government brought him back in early June — though it had secured an indictment on a human smuggling charge in federal court in Tennessee, stemming from a 2022 highway traffic stop where police said they spotted illegal immigrants in his vehicle.
He was kept in pretrial detention until the judge in the criminal case ordered his release on Aug. 22.
Three days later, U.S. Immigration and Customs Enforcement rearrested him in the civil immigration case, citing the 2019 deportation and withholding of removal order.
Judge Xinis last week ruled that order was defective and, besides, she said the government’s pursuit of Mr. Abrego Garcia raised other constitutional questions. That led to his release on Thursday.
After a check-in with ICE on Saturday, Mr. Abrego Garcia spoke at a rally in his honor.
“I stand before you as a free man, and I want you to remember me this way, with my head held up high,” he said in Spanish, through a translator from CASA, an immigrant rights group. “I will continue to fight and stand firm against all of the injustices this government has done upon me.”
