U.S. Immigration and Customs Enforcement cannot re-detain because a 90-day detention period has expired and the government has no viable plan for deporting him, a federal judge ruled on Tuesday.
The Salvadoran national鈥檚 case has become a focal point in the immigration debate after he was to his home country last year. Since his return, he has been fighting a second deportation to a series of African countries proposed by Department of Homeland Security officials.
The government 鈥渕ade one empty threat after another to remove him to countries in Africa with no real chance of success,鈥� U.S. District Judge Paula Xinis, in Maryland, wrote in her Tuesday order. 鈥淔rom this, the Court easily concludes that there is no 鈥榞ood reason to believe鈥� removal is likely in the reasonably foreseeable future.鈥�
Homeland Security Assistant Secretary Tricia McLaughlin criticized the ruling in an email.
鈥淚f this matter were actually about the law or due process, Kilmar Abrego Garcia would already be deported and would never set foot in this country again; Judge Xinis will not be satisfied until he is authorized to live in the United States forever,” she wrote.
Abrego Garcia has an American wife and child and has for years, but he immigrated to the U.S. illegally as a teenager. In 2019, an immigration judge ruled that he could not be deported to El Salvador because he faced danger there from a gang that had threatened his family. By mistake, he was there anyway last year.
Facing public pressure and a , President Donald Trump鈥檚 administration brought him back in June, but only after securing an indictment charging him with in Tennessee. He has . Meanwhile, Trump officials have said he cannot stay in the U.S. In court filings, officials have said they intended to deport him to , , Ghana, and .
In her Tuesday order, Xinis noted the government has 鈥減urposely 鈥� and for no reason 鈥� ignored the one country that has consistently offered to accept Abrego Garcia as a refugee, and to which he agrees to go.鈥� That country is Costa Rica.
Abrego Garcia’s attorney, Simon Sandoval-Moshenberg, argued in court that immigration detention is not supposed to be a punishment. Immigrants can only be detained as a way to facilitate their deportation and cannot be held indefinitely with no viable deportation plan.
鈥淪ince Judge Xinis ordered Mr. Abrego Garcia released in mid-December, the government has tried one trick after another to try to get him re-detained,鈥� Sandoval-Moshenberg wrote in an email on Tuesday. 鈥淚n her decision today, she recognized that if the government were truly trying to remove Mr. Abrego Garcia from the United States, they would have sent him to Costa Rica long before today.鈥�
The government should now engage in a good-faith effort to work out the details of removal to Costa Rica, Sandoval-Moshenberg wrote.
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