Federal Court to Review Whether ICE Can Take Kilmar Abrego Garcia Back Into Custody

The federal court handling the immigration case of Kilmar Abrego Garcia will convene on Monday to decide if U.S. Immigration and Customs Enforcement can place the Salvadoran native back in detention while the government pursues his removal to Liberia or another nation.

U.S. District Judge Paula Xinis scheduled the hearing less than two weeks after ordering Abrego Garcia’s release from ICE custody on Dec. 11. In that earlier ruling, Xinis determined that the government lacked “lawful authority” to keep him confined because no final removal order had been issued during his 2019 immigration proceedings.

The question now before the court centers on a subsequent action by the immigration court. After Abrego Garcia left custody, an immigration judge revisited his case record and inserted a formal order of removal, describing the omission as an administrative error. Federal lawyers argue that the updated record reinstates a legal basis for detention, while defense counsel maintains that ICE cannot retroactively correct the procedural flaw identified by Judge Xinis.

Abrego Garcia, 34, previously lived in Maryland with his spouse and children. In March, he was deported to El Salvador and placed in the CECOT “mega-prison,” despite a 2019 federal order prohibiting his removal to his home country because he expressed a credible fear of persecution. The Trump administration authorized that deportation after asserting that he was a member of the transnational gang MS-13, an allegation he denies.

According to court filings, ICE transferred Abrego Garcia back to the United States in June so he could face separate human-smuggling charges in the Middle District of Tennessee. He has pleaded not guilty, and trial is set for January. During pretrial proceedings, Judge Xinis approved his release under supervision, a decision the government is now challenging.

The upcoming hearing will also address new friction between the parties. On Friday, defense attorneys filed a motion seeking sanctions against the administration for statements made after Abrego Garcia’s release. The filing cites televised remarks by Chief Border Patrol Agent Gregory Bovino, who referred to their client as an “alien smuggler” and “wife beater.” Lawyers for Abrego Garcia contend those comments violated a prior court order restricting extrajudicial statements that could prejudice ongoing litigation.

Government attorneys have not yet publicly responded to the sanctions request. They are expected to argue Monday that continued detention is warranted because Abrego Garcia is subject to a valid removal order and poses both a flight risk and a danger to the community—claims his legal team disputes.

Background of the Legal Dispute

The origins of the case trace back to 2019, when an immigration judge found Abrego Garcia ineligible for deportation to El Salvador after he testified that gangs had threatened him and his family. However, the judge did not issue a written removal order to a third country at that time, a step normally required before ICE can detain someone while seeking deportation.

ICE nevertheless detained Abrego Garcia during the latter years of the Trump administration. Judge Xinis ruled in early December that the detention lacked statutory foundation because the missing removal order rendered the process incomplete. Her decision directed ICE to release Abrego Garcia and barred the agency from re-arresting him without prior court approval.

Imagem: Internet

Within days of the release, the immigration court added a removal order to Abrego Garcia’s record, listing Liberia as the designated country. Prosecutors now argue that the amended document satisfies the legal conditions identified by Judge Xinis and therefore authorizes renewed detention under the Immigration and Nationality Act.

Defense attorneys counter that the government is attempting to retroactively fix a procedural defect and that any new detention would violate both due-process rights and the December court order. They have asked the judge to hold the administration in contempt and to sanction officials for the televised remarks they believe were intended to influence public perception of the case.

Next Steps

Monday’s session is expected to cover two main issues: whether ICE can detain Abrego Garcia while removal efforts continue, and whether any sanctions are appropriate for the statements attributed to Chief Agent Bovino. Legal experts note that the hearing could clarify the limits of ICE’s authority when administrative errors occur during immigration proceedings.

For context, ICE retains broad detention powers under federal law, but courts have occasionally curtailed those powers when procedural safeguards are not observed. Additional information on the agency’s detention authority is available on the official U.S. Immigration and Customs Enforcement website.

If Judge Xinis rules that Abrego Garcia cannot be re-detained, he will remain free under current supervision while awaiting the January trial in Tennessee. A decision permitting ICE custody would likely place him back in a detention facility pending the outcome of both the criminal case and deportation proceedings.

Crédito da imagem: Stephanie Scarbrough/AP