Kilmar Abrego Garcia, the Salvadoran who has been at the center of the Trump administration’s deportation battles, was freed from Immigration and Customs Enforcement (ICE) custody after a judge’s order on Thursday.
U.S. District Judge Paula Xinis ordered ICE to immediately release Abrego Garcia and for the administration to notify the court of his status by 5 p.m.
“Because Abrego Garcia has been held in ICE detention to effectuate third-country removal absent a lawful removal order, his requested relief is proper,” Xinis said in an opinion.
Abrego Garcia’s attorney’s office confirmed he was released just before 5 p.m.
White House press secretary Karoline Leavitt said in a Dec. 11 press briefing that the administration will file an appeal.
“The administration opposed this activism from a judge who is really acting as a judicial activist, which we’ve unfortunately seen in many cases across the country,” Leavitt told reporters.
The administration had indicated that it would remove Abrego Garcia, an illegal immigrant, to an African country, while Costa Rica had offered to take him as a refugee. But without a removal order, Xinis said, the administration couldn’t deport him to a “third country” or one other than his home country of El Salvador.
Stretching back to Trump’s first term, an immigration judge issued a withholding of removal in 2019 after Abrego Garcia said he feared persecution in returning to El Salvador.
Xinis said on Dec. 11 that continuing to detain Abrego Garcia without an order would violate due process and the Immigration and Nationality Act. She also criticized the administration’s conduct in recent months, stating that its officials “believe that his detention has been for the basic purpose of effectuating removal, lending further support that Abrego Garcia should be held no longer.”
At one point, she accused the administration of an “inexplicable reluctance” to send Abrego Garcia to Costa Rica.
“This inexplicable reluctance seemed at odds with continued detention for purposes of third-country removal,” she said.
The Justice Department previously said it didn’t believe that the government of Costa Rica would accept Abrego Garcia, but Xinis disputed this, pointing to a statement by Costa Rica’s Minister of Public Security Mario Zamora Cordero.
“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,” the judge said.
Abrego Garcia has become a flashpoint for the administration’s immigration agenda and the legal battles that have ensued. The Justice Department said earlier this year that there was an administrative error regarding his deportation to El Salvador.
Backed by the Supreme Court, Xinis ordered the administration to facilitate Abrego Garcia’s return to the United States. He is currently facing a criminal indictment in Tennessee for alleged human smuggling offenses.
In her order, Xinis directed the U.S. Probation and Pretrial Services Office for her district to contact “Abrego Garcia’s criminal counsel with further instruction for installation on the release conditions previously imposed in his criminal case [in Tennessee].”
In August, Abrego Garcia was released from custody in Tennessee but was later apprehended by ICE after returning to Maryland.
In announcing his arrest, Homeland Security Secretary Kristi Noem said in an Aug. 25 social media post, “President Trump is not going to allow this illegal alien, who is an MS-13 gang member, human trafficker, serial domestic abuser, and child predator to terrorize American citizens any longer.”
Abrego Garcia’s attorney has denied that his client is a member of MS-13, and, in an earlier lawsuit, Xinis questioned the underlying evidence from an immigration proceeding during Trump’s first term in office. In its May indictment, the Justice Department stood by this characterization, accusing Abrego Garcia of using his status in MS-13 to further illegal activity.
