Judge Paula Xinis forbids DHS from trying to immediately deport Abrego Garcia

A federal judge threw a new wrinkle in the saga of Kilmar Abrego Garcia on Wednesday, forbidding Homeland Security from trying to rearrest and deport him once he is released from pretrial detention in his pending criminal case.

Judge Paula Xinis said Mr. Abrego Garcia must be returned to the status he was before U.S. Immigration and Customs Enforcement officers arrested him on March 12 — that is, out in the community in Maryland.

She said she was worried ICE was trying to hide Mr. Abrego Garcia from her reach, and she wanted to make sure she has jurisdiction over him to block the government from wrongly deporting him again.

Homeland Security denounced the judge as “unhinged” and vowed to find a way to keep the Salvadoran illegal immigrant in custody. 

Mr. Abrego Garcia is still in custody in Tennessee, where he faces a criminal charge of migrant smuggling, but a judge has suggested he could be released pending that trial. Trump lawyers had said he would then be immediately arrested on immigration charges, with Homeland Security trying to deport him.

But Judge Xinis, an Obama appointee to the court in Maryland who has regularly battled the administration over Mr. Abrego Garcia, said she cannot allow that.

She said because the March 12 arrest and deportation three days later were “unlawful,” the government must return him to the status he was in before that, which means released by ICE on an order of supervision.

She said that “protects Abrego Garcia from re-deportation without due process.”

Judge Xinis specifically banned Homeland Security from immediately arresting Mr. Abrego Garcia in Tennessee. She said if agents do want to rearrest him later under new deportation proceedings, he and his lawyers must be given “72 business hours” of notice.

The judge has repeatedly questioned the government’s handling of the case, which she said has sped decisions along without much explanation.

One government lawyer admitted in Judge Xinis’s courtroom that the March 15 deportation to El Salvador was wrong. That’s because Mr. Abrego Garcia, while having a final order of removal lodged against him, was barred from being sent to El Salvador in particular because of fears he would face persecution.

That lawyer was quickly fired.

But Judge Xinis said the snafus continued.

During subsequent hearings, ICE issued a detainer to take custody of Mr. Abrego Garcia if he were released in Tennessee. That was based on “ongoing removal proceedings.”

Yet there are no such proceedings right now, Judge Xinis concluded.

“Thus the ICE detainer seemed thin cover for defendants to take Abrego Garcia into custody in Tennessee and next transfer him to any ICE facility in the United States,” she said. “It certainly confirmed for the court that defendants had no intention of returning Abrego Garcia to the ICE supervision order in Maryland and commencing lawful immigration proceedings from there.”

The government had indicated that if it arrested Mr. Abrego Garcia on immigration charges, it would try to keep him detained. But thanks to a state sanctuary law, there are no operating detention facilities in Maryland that could hold him.

Assistant Homeland Security Secretary Tricia McLaughlin said Wednesday that the department will work to stop the release.