Judge in Abrego Garcia Case Finally Realizes a Point I Made Months Ago

Politico reported last week from the ongoing hearings in U.S. District Court in Greenbelt, Md., on the government’s attempts to deport Kilmar Abrego Garcia, an alleged MS-13 member whose removal to El Salvador in the spring triggered a national firestorm. Apparently, 30 weeks later, the judge hearing the case realized something I reported on in early April – though the implications may not be quite what she thinks they are. 

The Kilmar Abrego-Garcia Saga

This case became national news on April 1, the New York Times reported: “A Maryland man who was in the United States legally was deported to El Salvador and imprisoned there because of an ‘administrative error.’” 

The “Maryland man” is Abrego, a Salvadoran national alleged by both local authorities and the federal government to be a member of MS-13. 

He entered illegally in March 2012, and but was only taken into custody by ICE in March 2019, based both on his illegal status and purported evidence linking him to MS-13, a violent criminal organization with its roots in Los Angeles and a significant presence in El Salvador and elsewhere.

In April 2019, an immigration judge (IJ) in Baltimore denied Abrego’s bond request, finding the evidence in the case “shows that he is a verified member of MS-13”. He appealed that bond denial, but the Board of Immigration Appeals (BIA) adopted and affirmed what it referred to as the IJ’s “danger ruling” eight months later.

While in detained removal proceedings, Abrego through counsel filed an application for asylum, “statutory withholding” of removal under section 241(b)(3) of the Immigration and Nationality Act (INA), and withholding of removal under the Convention Against Torture (CAT).

That application was assigned to a second IJ, who on October 10, 2019, granted Abrego’s statutory withholding application but denied his applications for asylum and CAT.

Abrego Garcia was released following that grant, but rearrested by ICE on March 12, 2025, and sent to an ICE detention facility in Texas. 

Thereafter, he was removed to the Terrorism Confinement Center (CECOT) in El Salvador sometime around March 16 under an agreement (the terms of which are still undisclosed) the administration struck with the government of that country.

On March 24 – nine days after he arrived in El Salvador – Abrego, his wife, and child, through counsel, filed a “Complaint for Injunctive Relief and Declaratory Judgment” in federal district court in Maryland.

The case was assigned to U.S. district court Judge Paula Xinis, and on April 4, she issued an order granting the plaintiffs’ motion for a preliminary injunction. That order formed the basis of DOJ’s later appeal to the Fourth Circuit, and ultimately its application to the Supreme Court.

Specifically, Judge Xinis directed the government to “facilitate and effectuate the return of … Kilmar Armando Abrego Garcia to the United States by no later than 11:59 PM on Monday, April 7, 2025”.

By ordering the government to “effectuate” the return of Abrego Garcia, the judge was demanding the administration to engage in expedited diplomatic negotiations with El Salvador and requiring that those negotiations result in the return of Abrego Garcia – again, a Salvadoran citizen – to the United States before April 8.

The government asked the Fourth Circuit to stay Judge Xinis’s order, noting in its Emergency Motion: “The United States does not have control over Abrego Garcia. Or the sovereign nation of El Salvador.”

A three-judge circuit panel denied that motion on April 7, forcing DOJ to quickly file an application to vacate Judge Xinis’s order with Chief Justice John Roberts, the circuit justice for the Fourth Circuit.

The chief justice issued an administrative stay of the district court order to give the Court the chance to consider the government’s application, and on April 10, all nine justices weighed in.

The Court noted Judge Xinis’s order “properly requires the Government to ‘facilitate’ Abrego Garcia’s release from custody in El Salvador and to ensure that his case is handled as it would have been had he not been improperly sent to El Salvador”.

Nonetheless, the justices remanded the case to Judge Xinis to “clarify” her demand that the government “effectuate” the alien’s return, “with due regard for the deference owed to the Executive Branch in the conduct of foreign affairs”.

While Abrego was in El Salvador, on May 21, a grand jury in Tennessee handed down an indictment in U.S. v. Abrego Garcia, charging him with conspiracy to transport aliens under section 274(a)(1)(A)(v)(I) of the INA and “unlawful transportation of illegal aliens” under section 274(a)(1)(A)(ii) of the INA.

That indictment was unsealed by order of the U.S. District Court for the Middle District of Tennessee on June 6, the same day Attorney General Pam Bondi announced Abrego had been returned to the United States to answer those charges.            

Both the criminal case and the case before Judge Xinis remain pending. 

Back to the Beginning

Remember, Abrego – through counsel – was the petitioner in the Maryland case, and as such bore the burden of showing that he had been improperly removed from the United States to El Salvador.

To establish that he had been improperly removed, Abrego submitted a 14-page decision issued by the second IJ to hear his case on October 10, 2019. That was the only proof of that fact he offered, but as I explained on April 4, having read that order it appeared the IJ had granted Abrego statutory withholding to Guatemala, not El Salvador. 

Notably, in the “conclusion” paragraph in that decision, the second IJ explained:

DHS has not shown that there are changed circumstances in Guatemala that would result in the Respondent’s life not being threatened, or that internal relocation is possible and reasonable under the circumstances. Therefore, the Respondent’s application for withholding under the Act is granted. [Emphasis added.] 

Guatemala and El Salvador are two different countries, and while no transcript of the hearings before Judge Xinis appears in the record, I assume that the attorney representing DOJ admitted that Abrego was removed from the United States due to administrative error. 

Lawyers owe a duty of candor to the court, and perhaps that lawyer knew some extrinsic facts that aren’t in the record. If, however, the DOJ lawyer relied on the October 10, 2019, decision from the second IJ, that admission may have been in error. 

Statutory withholding is “country-specific”, in that it prevents the government from deporting an alien granted that protection to the country or countries from which the IJ or BIA withheld removal.

In fact, the regulation governing statutory withholding, 8 C.F.R. § 1208.16, states in its final subsection (f): “Nothing in this section . . . shall prevent [DHS] from removing an alien to a third country other than the country to which removal has been withheld or deferred.”

“An Immigration Court Error 6 Years Ago Could Lead to Release of Kilmar Abrego Garcia”

Which brings me to the Politico article, headlined “An immigration court error 6 years ago could lead to release of Kilmar Abrego Garcia”. 

The article quotes Judge Xinis as stating in open court on November 20: 

There is no order of removal in the docket, in the record . . .. You can’t fake it ‘til you make it. You got to have it. … You have to have the order. It’s got to be an order memorialized somewhere and I don’t have it.

The “order” Judge Xinis is apparently referring to is what’s commonly known as a “minute order”, a preprinted document the second IJ would have (or should have) issued when he issued his October 10, 2019, decision.

As I explained back on April 4: 

While the judge’s memorandum of decision and order is enlightening, it conveys no legal authority in and of itself. At the time he issued it, the immigration judge should also have issued a separate preprinted form referred to as a “minute order”, which does have legal authority.

On that form, the immigration judge would have checked boxes showing he denied asylum and CAT, but granted statutory withholding, which Abrego Garcia would have needed to present to prove that he had lawful status in the United States.

That minute order, however, would also have shown that Abrego Garcia was ordered removed and listed the country to which removal was ordered but withheld. As I explained above, statutory withholding is country specific, but no minute order appears in the record in his federal court case.

Abrego was represented by counsel in his removal proceedings before the second IJ, and if the second IJ failed to issue a minute order it was up to that lawyer to ask the court to prepare and serve one. 

This isn’t a mere “paperwork” issue: Abrego needed that document to prove he was here lawfully and to apply for work authorization. He had every reason to request one, and again that minute order – not the October 10, 2019, decision – was the proof Abrego needed when he filed his complaint with Judge Xinis in March to prove the government had unlawfully removed him to El Salvador.

Faking It Until Making It

Respectfully, everybody in this case has been faking it until they can make it in this case, or nobody is. And in my opinion, nobody is; they are just a little unclear on the law. 

By precedent, an order of removal was a “condition precedent”, a crucial step the second IJ was required to take before he could grant Abrego statutory withholding. 

The precedent in question is the BIA’s 2008 opinion in Matter of I-S- & C-S-, where the Board held: “When an Immigration Judge issues a decision granting an alien’s application for withholding of removal under section 241(b)(3) of the [INA], without a grant of asylum, the decision must include an explicit order of removal.”

It’s possible the second IJ never issued a minute order in Abrego’s case (I had plenty of other issues with his decision), but I doubt it and if there is one, it’s in his alien file (A-file) and in the immigration court Record of Proceedings (ROP) — and it will clarify whether withholding was granted to El Salvador or Guatemala.

Somebody may want to check out Abrego’s A-file and ROP, but considering that precedent and the second IJ’s decision, I’d argue that even absent a minute order, the second IJ de jure had to have ordered Abrego removed to grant him statutory withholding, and that he granted withholding to Guatemala. 

But respectfully, Judge Xinis could have spared everyone a lot of drama and court time if she had simply asked Abrego – who again bore the initial burden of proof in the case – for the minute order in his case before she did anything else.

Not that I blame her for failing to do so. Section 242 of the INA governs judicial review in immigration cases, and Congress therein largely cut district courts out of the process. Cases like this are terra incognita for most trial-level federal court judges (which is why they may want to be circumspect when they do consider them).

In April, I noted two key defects in Abrego v. Noem: an IJ decision that appeared to withhold Abrego’s removal to Guatemala, not El Salvador; and the absence in the record of a minute order, a legal document that would clarify the issue. 

I’m dumbfounded that only now – after this case was considered by 13 different federal judges (one district, three circuit, and nine justices) and thousands of gallons of ink were spilled examining every aspect of Kilmar Abrego Garcia’s life – has Judge Xinis identified the same issues I did 30 weeks ago. But the ultimate result may not be what she thinks it is.