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U.S. Immigration and Customs Enforcement cannot re-detain Kilmar Abrego Garcia because the statutory 90-day detention period has expired and the federal government has no viable plan to deport him, a federal judge ruled Tuesday.
U.S. District Judge Paula Xinis said the government failed to show that Abrego Garcia’s removal is reasonably foreseeable, a key legal requirement for continued immigration detention under Supreme Court precedent.
“The government made one empty threat after another to remove him to countries in Africa with no real chance of success,” Xinis wrote. “From this, the Court easily concludes that there is no ‘good reason to believe’ removal is likely in the reasonably foreseeable future.”
The ruling prevents U.S. Immigration and Customs Enforcement from re-detaining Abrego Garcia based solely on his pending deportation status.
A Case at the Center of Immigration Debate
Abrego Garcia, a Salvadoran national who has lived in Maryland for years and has an American wife and child, entered the United States illegally as a teenager.
In 2019, an immigration judge ruled that he could not be deported to El Salvador because he faced credible threats from a gang that had targeted his family. Despite that protection order, the Trump Administration “mistakenly” deported to his home country last year.
Following public scrutiny and a court order, the administration of President Donald Trump brought him back to the United States in June.
However, federal prosecutors in Tennessee secured an indictment charging Abrego Garcia with human smuggling. He has pleaded not guilty.
At the same time, administration officials have maintained that he cannot remain in the country and have sought to deport him to third countries, including Uganda, Eswatini, Ghana and Liberia, according to court filings.
Costa Rica Offer Highlighted
In her order, Xinis noted that the government had “purposely — and for no reason — ignored” Costa Rica, which she said has consistently offered to accept Abrego Garcia as a refugee and to which he has agreed to go.
The court said the failure to pursue that option undermined the government’s claim that deportation was imminent.
Abrego Garcia’s attorney, Simon Sandoval-Moshenberg, argued that immigration detention is legally justified only to facilitate removal and cannot be used as punishment or extended indefinitely without a realistic deportation plan.
“Since 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,” Sandoval-Moshenberg wrote in an email Tuesday. “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.”
He said the administration should now engage in a good-faith effort to finalize removal arrangements with Costa Rica.
DHS Response
Tricia McLaughlin, an assistant secretary at the Department of Homeland Security, sharply criticized the ruling.
“If 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,” McLaughlin said in an emailed statement.
The administration has argued in court that Abrego Garcia’s criminal charges and immigration history justify continued detention and removal efforts.
Under Supreme Court precedent, immigration authorities generally may not detain a noncitizen indefinitely if there is no significant likelihood of removal in the reasonably foreseeable future. Once the 90-day removal period expires, the government bears the burden of showing that deportation is practically achievable.
Xinis concluded that standard was not met in this case.
The decision marks another high-profile legal setback for the administration’s immigration enforcement efforts and underscores the legal constraints federal courts have placed on prolonged detention without a clear path to removal.
