ABOUT KILMAR ABREGO GARCIA’S RELEASE AND SITUATION: HERE ARE THE DOCUMENTS AND FACTS ABOUT EVERYTHING GOING ON THIS WEEK IN HIS CASE
Some of you may have been wondering why I didn’t write an article yesterday about Kilmar Abrego Garcia’s release (although I did post about it as soon as it happened). It’s true that, as some of you know, owing to my immune condition I had to evacuate from my house yesterday because workmen had to be in there to replace a failed water heater, and of course I can’t just go work in a coffee shop (ah, those were the days). But there was also a second, legally important reason.
We all celebrated yesterday when we got the news about the Court ordering Kilmar’s release (and again, I did post about that for you, from my phone, while sitting in my car), but I wasn’t going to write an actual coverage article until it actually happened and had stuck, and also until I had all of the facts, as there are a *lot* of moving parts in his case, and I didn’t want to go off half-cocked.
Now I have all of the facts, as well as the relevant documents (there are three documents – the Opinion and two orders – which are of course included for you Notes from the Front members).
To recap, Kilmar Abrego Garcia was picked up by ICE for an immigration violation and then illegally deported to CECOT in El Salvador. Why was it illegal? Because at the time he had a protective order (it may not have been called that, but that’s essentially what it is) saying that the ONE PLACE he could *not* be deported to was El Salvador, because there was a credible expectation that a gang there would try to kill him.
After he arrived in El Salvador, the administration *admitted* that they had committed an oopsie (yes, that’s a real legal term), but refused to bring him back from El Salvador, saying that they were unable to.
Then they finally did bring him back, but not without first trumping up (heh, see what I did there?) some specious charges out of Tennessee, charging him with human smuggling (bringing immigrants into the country in his car). This allowed the administration to *immediately* arrest him and take him into custody as soon as he touched down back in the U.S..
After he was arraigned in Tennessee for the human smuggling charges he was released, and almost immediately picked up again by ICE, and he has been in ICE custody ever since.
Until yesterday.
In a glorious 31-page opinion (again, included for Notes from the Front members), Judge Paula Xinis ordered Abrego-Garcia’s *immediate* release, saying that the administration has *no* legal grounds by which they could continue holding him in detention.
Judge Xinis is meticulous in her opinion and order, no doubt anticipating the administration appealing it, so she made sure to have all of her legal Is dotted and Ts crossed.
I particularly like this passage:
“First, because Respondents have no statutory authority to remove Abrego Garcia to a third country absent a removal order, his removal cannot be considered reasonably foreseeable, imminent, or consistent with due process. Although Respondents may eventually get it right, they have not as of today.”
Bahahaha…”Although Respondents may eventually get it right”.. 😂
But on a more sober note, Judge Xinis points out that in addition to the “never remove this guy to El Salvador” order,… the current removal order for Abrego Garc… waaaait a gosh darned minute.. there IS NO REMOVAL ORDER!!!
Yep, that’s right, the administration actually *had no order to remove him*!
Not only *that*, but, as the Judge notes, Costa Rica has offered to take Abrego Garcia and his family, *and* Abrego Garcia has said THAT HE WANTS TO GO THERE!
And yet, the administration not only has refused to facilitate his *voluntarily* self-deporting to Costa Rica, but keeps trying to send him to *other* countries instead – countries where he would be imprisoned and horribly treated. In fact, they *lied*, saying that Costa Rica did not want Abrego Garcia, and that’s why they *had* to send him to, in the case of that argument, Liberia. Because, this administration is a bullying administration, run by the Bully in Chief and his various henchbullies.
Putting that all together, Judge Xinis determined that at this point it was clear that this case was not actually about getting an illegal immigrant out of the country, and also that the administration had no lawful authority on which to base his continued detention, and so she ordered Abrego Garcia’s immediate release. And she also built a solid record to thwart any appeal.
Remember that courts often issue the actual order separately from the Opinion, as is the case here, and the Order itself (also included for Notes from the Front members) is the sweetest part of all, saying:
“1. Petitioner Kilmar Armando Abrego Garcia’s Petition for habeas corpus pursuant to 28 U.S.C. § 2241 is hereby GRANTED;
2. Respondents SHALL release Abrego Garcia from ICE custody immediately”
Now, he was released last night. He got to spend the night with his wife and son. And some of us held our collective breaths to see what would happen this morning, knowing as we do that ICEy shenanigans may have been afoot. And here’s what happened:
At the crack of the Court’s opening this morning his lawyer went in and got an order (also included for Notes members) saying, and I quote:
“Respondents are ENJOINED from re-detaining Petitioner Kilmar Armando Abrego Garcia in ICE custody until this Court can receive further briefing from the parties and conduct a hearing on the TRO Motion”
In other words, not only is he free, but ICE *cannot* detain him again until further order of the Court.
Yay!
I wonder when the made-for-tv movie about all this will happen.
Of course, he’s not out of the woods yet, as he still has the trial for the Tennessee stuff (that’s scheduled for July of 2026), and of course the administration *could* go back to the drawing board and try to ‘get it right’.
By the way, those of you who have been with me for a while and so who have been privy to various explanations of Habeas Corpus, this is a perfect example of that. In fact, the very first paragraph of the Court’s opinion is:
“Kilmar Armando Abrego Garcia (“Abrego Garcia”) petitions this Court for a writ of habeas corpus to release him from the custody of Respondents, Secretary of the Department of Homeland Security (“DHS”) Kristi Noem, United States Immigration and Customs Enforcement (“ICE”) Director Todd Lyons, ICE Baltimore Field Office Director Nikita Baker, and Attorney General Pamela Bondi.”
See how that worked? He petitioned for a writ of Habeas Corpus, which basically said “Please bring me before you, Judge Xinis, so I can plead my case regarding why I should not be locked up, and if you agree then please order these government officials to release me.”
Finally, Abrego Garcia now has some options, he can go to Costa Rica, or he can stay here and try for a green card (his wife is a U.S. citizen), or he can apply for asylum.
Notes from the Front members: the Opinion and the two orders are in your inbox now.
To protect myself from claims of improper republication, and trolls, I don’t publicly share documents I find, I make them available privately to Notes from the Front members. Some of them may be public, and you can probably find them yourself if you wanted to spend the hours that I do looking for them, but then you wouldn’t get the explanations and insights based on my decades of law practice and as a law professor, nor the snark that I inject into those explanations. ;~) And honestly, $5 a month is less than you would pay for a minute of lawyer time anywhere else. You can join below for immediate access to all of the documents, our private chat, etc.. – it’s $5 a month and it’s fine to join and then cancel if you only want certain documents.
https://annepmitchell.substack.com/p/about-kilmar-abrego-garcias-release
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