GREENBELT, Md. (AP) – A federal judge on Monday will hear arguments on whether Kilmar Abrego Garcia should be returned to immigration custody after being free for a little more than a week.
Abrego Garcia, whose botched deportation to El Salvador became a lightning rod for both sides of the immigration debate, had been in immigration detention since August. At the time, the government said it planned to deport him to Uganda, Eswatini, Ghana and, most recently, Liberia. However, the officials made no effort to deport him to the one country he agreed to go to — Costa Rica. US District Judge Paula Xinis, in Maryland, even accused the government of misleading her by falsely claiming that Costa Rica was not ready to take her.
The government’s “persistent refusal to recognize 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 the purpose behind his detention, it was not for the ‘basic purpose’,” wrote the third count of the time.
Xinis’ December 11 order releasing Abrego Garcia 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 United States, and he cannot be deported anywhere without an order of removal.
Abrego Garcia has an American wife and son and has lived in Maryland for years, but he immigrated to the United States illegally from El Salvador when he was a teenager. In 2019, an immigration judge granted him protection from being deported back to his country, and found that he was facing danger there from a gang that targeted his family. In March, he was still mistakenly deported there. US officials resisted calls to bring them back until the Supreme Court weighed in. However, officials said he cannot stay in the United States and promised to deport him to a third country.
In filings last week, government lawyers 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 trial.
“If there is no final order of removal, the immigration proceedings are ongoing, and the Petitioner is subject to pre-final order detention,” they wrote.
Meanwhile, Abrego Garcia’s lawyers cited a US Supreme Court ruling that “because immigration proceedings are ‘civil, not criminal’ detention must be ‘non-punitive’.” They claimed that in the case of Abrego Garcia, the detention is punitive because the government wants to be allowed to detain him indefinitely without a viable plan to deport him.
“If immigration detention does not serve the legitimate purpose of effecting a reasonably foreseeable removal, it is punitive, potentially indefinite, and unconstitutional,” they wrote.