Left: Kilmar Abrego Garcia, a Salvadoran citizen who was living in Maryland and deported to El Salvador by the Trump administration, speaks in a hotel restaurant in San Salvador, El Salvador, Thursday, April 17, 2025. (Press Office Sen. Van Hollen, via AP). Right: President Donald Trump arrives for a formal dinner at the Paleis Huis ten Bosch ahead of the NATO summit in The Hague, Netherlands, Tuesday, June 24, 2025. (AP Photo/Markus Schreiber).
The Department of Justice is trying yet again to put wrongly deported Maryland father and accused human smuggler Kilmar Abrego Garcia back behind bars, arguing that if he disagrees with the decision, he can ask for a bond hearing — the same type of hearing the government has also argued is not actually allowed in cases like Abrego Garcia”s.
As Law&Crime has previously reported, Abrego Garcia was deported in March from Maryland and imprisoned in El Salvador at the Terrorism Confinement Center (CECOT). The Trump administration, eventually admitting the deportation was due to “administrative error,” was ordered to “facilitate” his return — and it carried out that return in June, weeks after securing a federal indictment in Tennessee on charges of human smuggling, allegedly stemming from a 2022 traffic stop. Abrego Garcia has claimed that the prosecution was brought vindictively because his civil case brought embarrassment to the U.S. government.
Last week, Maryland U.S. District Judge Paula Xinis granted Abrego Garcia’s petition for release from ICE custody. She slammed the Trump administration for holding him “without lawful authority,” and for “affirmatively” misleading the court on Costa Rica’s willingness to accept him as a refugee. She concluded that an order for his removal from the U.S. does not exist.
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According to the Trump administration’s response filed Sunday to Abrego Garcia’s emergency release request, Xinis determined that a judge in 2019 “had neglected to include the words ‘ordered removed’ at the end” of the judge’s decision whether to withhold the man’s removal to El Salvador. Xinis then concluded that Abrego Garcia “had never actually been ordered removed” and “has no final order of removal.”
“That means he is not presently removable from the United States,” the DOJ said in its filing. “But it does not mean he is not subject to any form of detention.”
The absence of a final order of removal only blocks one pathway to detention, the DOJ said — but not all.
“If there is no final order of removal, immigration proceedings are ongoing, and Petitioner is subject to pre-final order detention under the separate legal authority in [other federal immigration statutes],” the filing said. “This Court’s new TRO precluding detention therefore has no legal basis, and must be immediately dissolved.”
Those other statutes, according to the DOJ, “authorize detention of aliens during removal proceedings” such as Abrego Garcia’s.
“Nothing about this Court’s order somehow shields Petitioner from the ordinary detention rules that apply to all aliens in removal proceedings,” the DOJ filing says. “Rather, the Supreme Court has expressly found that detention remains under [federal immigration law] until there is an ‘administratively final removal order.'”
If Abrego Garcia isn’t happy with the decision to detain him under the relevant statutes, the government says, he could request a bond hearing.
“An alien who is subject to discretionary detention may be released on bond, either by an ICE officer or by an IJ at a bond hearing,” the filing says. “At a bond hearing, the burden is on the alien to justify release by showing that he or she is not a flight risk or a danger. An alien may appeal the bond decision to the [Board of Immigration Appeals].”
However, in July, the DOJ announced a policy ending bond eligibility for people in ICE detention. As Law&Crime has previously reported, ICE instructed all agents to deny bond for anyone who entered the country without “inspection.” Under the terms of the policy, such immigrants are to be detained “for the duration of their removal proceedings” unless granted parole — a rarer form of release. A lawsuit from the ACLU says that the policy will result in tens of thousands of people being “jailed indefinitely while their immigration cases are considered for months or years on end.”
The government, despite its announced policy opposing bond, appears to acknowledge that Abrego Garcia does indeed still have “the right to an independent assessment of whether, even assuming he is detained again, he may be released on bond.”
Even if Abrego Garcia is denied bond, he’s not out of options — according to the government, he can still choose to leave the country.
“If an alien is denied bond, the alien is always free to terminate detention by accepting a final order of removal, qualifying for voluntary departure, or (in some instances) simply leaving the United States,” the filing says in a footnote, adding that “an alien who files a petition for review in the court of appeals after the BIA has entered a final removal order can depart or be removed from the United States and continue to challenge the removal order from abroad.”
Notably, Abrego Garcia has apparently been invited to leave the U.S. for Costa Rica — a fact the Trump administration had denied, leading Xinis to shred the government for “affirmatively” misleading the court on the issue.
