I hadn't been following up on this case from April, as the situation surrounding it was in flux and under serious legal review. But a major step happened last week when the judge overseeing the deportation of Kilmar Abrego Garcia ordered the man released from custody as well as ripping into trump's corrupted Justice Department for blatant lies and stonewalling (via Edith Olmsted at the New Republic):
In a 31-page opinion, U.S. District Judge Paula Xinis granted Abrego Garcia’s request to be released from ICE custody. In her ruling, she torched the prosecutors’ efforts to deport Abrego Garcia to Liberia, after they claimed they could not deport him to the country of his choice, Costa Rica.
“This time, when the Court sought information about Liberia and Costa Rica so to fairly assess the validity of Abrego Garcia’s claims, Respondents did not just stonewall. They affirmatively misled the tribunal,” Xinis wrote.
“They announced that Liberia is the only viable removal option because Costa Rica ‘does not wish to receive him,’ … and that Costa Rica will no longer ‘accept the transfer’ of him,” she wrote. “But Costa Rica had never wavered in its commitment to receive Abrego Garcia, just as Abrego Garcia never wavered in his commitment to resettle there.”
Costa Rican officials had previously put in writing that they had no intention to remove Abrego Garcia back to El Salvador once he was in their custody—while Liberia had made no such assurances. Xinis wrote that the government’s continued lies made clear that Abrego Garcia’s lengthy detention was not for the basic purpose of a timely removal to the third country.
Xinis saw what a lot of others saw: there wasn't much legal foundation to what trump and his lawyers were doing in the first place.
Xinis also found that there was never any order for Abrego Garcia’s removal in the first place. “Indeed, Respondents twice sponsored the testimony of ICE officials whose job it is to effectuate removal orders, and who candidly admitted to having never seen one for Abrego Garcia,” she wrote.
Instead, the government argued that the court should take an October 10 “withholding decision” as evidence that an original order existed—but Xinis didn’t buy it. “The October 10 withholding decision is unambiguously not an order of removal,” she wrote.
Continued detention without a removal order violates Abrego Garcia’s rights under the Immigration and Nationality Act, as well as due process.
Of course, given the bullying and vengeful mindset of trump and his entire administration, DOJ lawyers tried to pull a runaround to Xinis' ruling by manufacturing a last-minute "removal order" from an immigration judge as though it would supersede the original order six years ago (something even enraging Andrew C McCarthy over at the National Review (yeah, I know!)):
In a nutshell, after months of playing “hide the ball” (or is it, “hide the lack of a ball”?) about whether there exists an order of removal authorizing Abrego’s detention and deportation, the Trump Justice Department has attempted to cure the absence of an order by what appears to be a blatantly illegal process: To wit, without notice to Abrego, the DOJ went ex parte to a DOJ immigration judge who lacks jurisdiction over the case, but who nevertheless dutifully issued a “sua sponte order correcting scrivener’s error” order, under which everyone is now supposed to pretend — Abracadabra! — that there was an order of removal all along.
I'm not a lawyer but I know a couple of them via Ta-Nehisi's Horde. Every single one of them were screaming (Upper Case Text) in the chat channels "THAT'S NOT WHAT A SCRIVENER'S ERROR DOES!" Along with their utter disgust at how trump's people are idiots with the legal system. Meanwhile:
The entire labyrinthine Abrego litigation — featuring immigration removal actions, habeas corpus claims, and a criminal prosecution that have collectively burdened the DOJ’s immigration tribunals, the district courts of Maryland and Tennessee, the Fourth Circuit, and the Supreme Court — has been pursued by the Trump DOJ on the premise that there was an order of removal, that had been issued in 2019 conterminously with IJ Jones’s order of withholding of removal to El Salvador.
The assumption was that the order of removal authorized Abrego’s expulsion from the United States, and that the order of withholding of removal was just a caveat that Abrego, a Salvadoran, could not be repatriated to his native country. That caveat was in place because (a) Abrego had convinced Jones that he reasonably feared persecution in El Salvador, (b) the DOJ, in the first Trump administration, did not appeal that dubious ruling (it allowed Abrego to be released to live and work in Maryland), and (c) the current Trump DOJ did not (as far as is publicly known) attempt to get the caveat removed based on, among other things, changed conditions in El Salvador...
But as Judge Xinis found, no order of removal was ever issued. The court asked the government to produce it for months; prosecutors neither produced it nor provided a straightforward explanation for its absence from the record – to say nothing of an explanation why, in the absence of the order, they would suddenly arrest Abrego without notice six years after releasing him and then controversially send him to a notorious counterterrorism prison in El Salvador — the one country to which it was explicitly forbidden to deport him...
Yet, as Xinis concluded, if there is no order of removal, then the case Abrego filed against the government cannot properly be deemed a removal proceeding. Rather, it is a habeas proceeding – a challenge claiming that, in the absence of a removal order, the government’s detention and removal of Abrego are illegal. While Xinis would have no jurisdiction to act in a removal proceeding under immigration law, federal district courts do have jurisdiction over habeas and related claims...
To repeat what I argued Friday, that’s an offer (Garcia agreeing to deport to Costa Rica) the DOJ should have leapt at. It would have drawn the curtain on this sorry saga. Instead, the DOJ tried to use Abrego’s desire to go to Costa Rica as leverage in plea negotiations in connection with the dubious criminal prosecution the DOJ brought in Tennessee. The DOJ’s refusal was also vindictive: The Abrego case has been an embarrassment, so rather than accommodate the Costa Rica transfer and end it, Abrego was kept in custody while the administration unsuccessfully tried to arrange his removal to African countries – which didn’t want to take Abrego and to which he didn’t want to go.
In any event, once the DOJ lost the case on Thursday, when Xinis ordered Abrego’s release, Attorney General Bondi and her subordinates apparently decided it was futile to continue resisting a concession that there never was a removal order. But rather than just beginning a new removal proceeding — for which there is a basis since there is no doubt that Abrego entered the country illegally and never obtained lawful status — the DOJ opted for chicanery.
On Thursday evening, without giving notice to Abrego’s counsel, prosecutors went to the aforementioned IJ Phillip Taylor. At a little after 7 p.m., Taylor issued an “Order of the Immigration Judge” with the subheading “Immigration Court’s Sua Sponte Order Correcting Scrivener’s Error...”
Essentially, Taylor has tried to insert a previously absent order of removal into the 2019 document (the order of withholding of removal), label the prior absence a “scrivener’s error” (i.e., a mere clerical mistake of negligible substantive importance), and backdate the whole thing by six years (the “nunc pro tunc” provision, as if what was not there had been there all along.
Perhaps most hilarious is the assertion that this was done “sua sponte” (i.e., of the judge’s own accord). It’s as if IJ Taylor just happened to be sitting in his office on a Thursday evening, thinking about IJ Jones’s six-year-old orders (as I guess IJs are wont to do), and suddenly decided, on his own, to correct what seemed to him to be a clerical error — as opposed to being induced by Trump DOJ officials to make a substantive addition to an order, the absence of which had caused them to lose a high-profile case earlier in the day...
The following Friday, Xinis reinforced her order to release Abrego Garcia and warned the federal government to not arrest him under any pretense. One hopes that when hearings resume during the work week that Xinis shreds the Justice Department lawyers for this circus and starts issuing sanctions and contempt charges.
Out of all of the immigration battles being waged in the United States right now - the mass deportation roundups, the violations of civil rights committed by ICE and Border Patrol goons, the decimation of an honest migrant workforce that's contributing to a growing economic recession - this one person's legal fight is representative of trump and the Far Right's entire war. But it's a little bit more because of one thing: trump made this personal.
Out of the hundreds of Latino - and African, and Asian, and non-White - men - and women and children(!) - getting detained, trump himself seemed to focus on Abrego Garcia as his perfect poster child of "criminal gang-related" stuff he and his staff want to paint in broad strokes across that entire population. By late April as the case gained national attention - and warnings from legal experts that the Justice and Homeland departments were on thin ice with this one - trump went on a media offensive that was offensive (via Julia Conley at Common Dreams):
The White House’s public response on Friday to an image of Kilmar Abrego Garcia, a Maryland father who the Trump administration sent to a notorious prison in El Salvador last month, was to mock the migrant and the U.S. senator who successfully urged Salvadoran President Nayim Bukele to allow a visit with him—and critics said officials may come to regret that decision.
“I suspect this is going to show up in a variety of court pleadings,” said former U.S. Attorney Joyce White Vance, who is now a law professor. “Whoever thought this was cute at the time may be less giddy when this becomes evidence of intent to disobey a court order...”
The story headline read, “Senator Meets With Wrongly Deported Maryland Man in El Salvador”—but the White House crossed out the word “wrongly,” replaced “Maryland Man” with “MS-13 Illegal Alien,” and scrawled, “who’s never coming back” on the article about the father and sheet metal worker.
The digital graffiti was shared with the White House’s 1.6 million followers even though, as software engineer and writer Lakshya Jain said, “the White House admitted in court that they deported the wrong guy.”
Journalist David Leavitt added that the White House had given a federal court “more evidence of contempt,” two days after Chief Judge James Boasberg of the U.S. District Court in Washington, D.C. warned that there was “probable cause... to find the government in criminal contempt”—punishable by fines or prison time...
The administration has also flouted the U.S. Supreme Court’s unanimous ruling last week that found the White House must facilitate Abrego Garcia’s return to the United States. Officials have admitted he was sent to El Salvador due to an “administrative error.” Although officials including Vice President JD Vance have called him a “convicted” gang member and Bukele repeatedly called him a “terrorist” in the White House earlier this week, Abrego Garcia has not been convicted of any crimes...
trump even took the time on social media to display a photo - later proved manufactured - of Abrego Garcia's "tattoos" as proof he was a major MS-13 gang leader. The whole thing was fake (via Louis Jacobson at PolitiFact):
"This is the hand of the man that the Democrats feel should be brought back to the United States, because he is such ‘a fine and innocent person,’" Trump’s post says. "They said he is not a member of MS-13, even though he’s got MS-13 tattooed onto his knuckles."
The figures M, S, 1 and 3 and the words below the symbols don’t appear in other photographs of Abrego Garcia’s hand, including the one taken by Salvadoran government officials (and shared on X by El Salvador’s president, Nayib Bukele) when Abrego Garcia met with Sen. Chris Van Hollen, D-Md., on April 17.
We asked the White House whether "MS-13" is tattooed on Abrego Garcia’s hand or whether the photo had been altered, perhaps to show that each of the pictorial tattoos represented one of those letters or numbers. The White House did not respond to our inquiry.
Several gang crime experts urged caution about assuming that any of the tattoos provide proof of MS-13 ties. MS-13 experts said the tattoos’ iconography was unfamiliar, and that those symbols have common meanings in mainstream tattooing...
Marijuana leaves, crosses and skulls are widely used as tattoos by people who do not belong to gangs. Gang crime experts said they did not stand out to them as MS-13 markers.
"I don’t believe a ‘dangerous individual’ would have such anodyne and farcically generic tattoos on his hand," said Liliana Castañeda Rossmann, a California State University San Marcos emerita professor of communication and author of the book "Transcending Gangs: Latinas Story Their Experience."
Sean Kennedy, a former federal public defender in California and now a Loyola Law School professor, said that in his experience representing and interacting with current and former MS-13 members, "The tattoos in the photo don't look familiar to me."
This is a burden on Abrego Garcia, not that he's facing legal challenges and deportation, but that trump has targeted Abrego Garcia for his racist ire.
Always remember: trump never admits to being in the wrong, he never will admit he lost anything (a legal challenge, a fight, an election, etc). In that, trump will blame others, he will claim he really won but his victory was "stolen," he will claim "vindication" even as he's forced to pay his victims in legal settlements. trump can never lose, ergo everyone else must.
This means that trump will never admit he was wrong regarding Abrego Garcia's situation. trump will double down on the lies and gaslighting, and he will enforce his underlings to do the same. he will insist the Justice Department pursue "every avenue" - i.e. manufacture any evidence - to ensure this one man gets convicted as a gang member criminal.
trump's DOJ lawyers are going to play fast, loose, and false with the legal system to twist reality to fit trump's fantasies. But the legal system - for all its faults - doesn't work like that. trump's going to run out of lawyers to do his bidding before he will shatter the American judiciary against his will.
In the meantime, here's hoping Kilmar Abrego Garcia and his family can rest - even for a brief moment - in the middle of this chaos.