The Department of Justice is once again attempting to incarcerate Kilmar Abrego Garcia, a Maryland father who was wrongfully deported and accused of human smuggling. The DOJ contends that if Abrego Garcia disagrees with this decision, he is entitled to request a bond hearing, despite the government previously asserting that such hearings are not applicable in similar cases.

According to Law&Crime, Abrego Garcia was deported from Maryland in March and detained in El Salvador’s Terrorism Confinement Center (CECOT). The deportation, initially carried out under the Trump administration, was later acknowledged as an “administrative error,” prompting an order for his return, which was executed in June. This occurred shortly after Abrego Garcia was indicted in Tennessee on human smuggling charges related to a 2022 traffic stop. Abrego Garcia has argued that the charges were retaliatory, stemming from his civil lawsuit that embarrassed the U.S. government.

Recently, U.S. District Judge Paula Xinis of Maryland approved Abrego Garcia’s petition for release from ICE custody. She criticized the Trump administration for unlawfully detaining him and misleading the court regarding Costa Rica’s readiness to accept him as a refugee. Judge Xinis concluded there was no valid order for his removal from the U.S.

In a submission filed Sunday, the Trump administration’s response to Abrego Garcia’s emergency release request revealed that Judge Xinis found a 2019 judicial oversight. The oversight involved the failure to explicitly state “ordered removed” concerning Abrego Garcia’s removal to El Salvador. Consequently, Judge Xinis determined that Abrego Garcia was never officially ordered removed and lacks a final removal order.

“This means he is not currently removable from the United States,” the DOJ stated in their filing. “However, it does not imply he is exempt from all forms of detention.”

The DOJ clarified that while the absence of a final removal order prevents one specific type of detention, it does not eliminate all detention possibilities.

“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.