Kilmar Abrego Garcia Challenges Trump Administration’s Deportation Case Using Legal Loophole

Attorneys representing Kilmar Abrego Garcia are capitalizing on the complexities of immigration law, which they argue are currently benefiting their client by complicating the Trump administration’s efforts to deport him.

On Monday, Abrego Garcia’s legal team submitted a seven-page document to U.S. District Judge Paula Xinis, aiming to dismantle the government’s deportation efforts. They declared that Garcia will not challenge a December 11, 2025 immigration court decision ordering his removal, which has been retroactively applied to October 10, 2019.

This latest development in the prominent case is a counter to a late 2025 submission from an Immigration and Customs Enforcement (ICE) officer, which outlined various legal grounds for potentially “re-detaining” Garcia.

Garcia’s attorneys argue that the same legal statutes cited by ICE actually prevent “re-detention” under certain conditions. They claim Monday’s filing has now triggered those conditions.

The government’s recent filing states: “The immigration judge’s December 11, 2025 decision entering a removal order is not final, and Petitioner has the opportunity to appeal that decision by January 12, 2026.” The ICE officer also referenced a statute stating: “An alien may be arrested and detained pending a decision on whether the alien is to be removed.”

According to Abrego Garcia’s legal team, the key term in this statute is “pending.” They contend that the statute allows for immigration detention only if there is an ongoing, time-sensitive dispute regarding the judge’s removal order.

The government’s latest filing also cites other statutes to make a similar argument and argues that his “detention will be governed” by those laws “until removal proceedings have concluded.”

Now Abrego Garcia is dropping his opposition, in a formalistic sense, in a bid to have the removal proceedings shuttered.

“Abrego Garcia has decided to not appeal the immigration judge’s December 11 order, and he hereby waives his right to do so,” the Monday filing reads. “As a result, that order is final, there are no ongoing removal proceedings, and thus neither § 1225(b)(2) nor § 1226(a) can authorize detention. While Abrego Garcia has serious concerns about the validity of the immigration judge’s December 11 order, he waives his right to challenge that order to eliminate any doubt that § 1225(b)(2) or § 1226(a) could apply here.”

In other words, Abrego Garcia is no longer contesting the immigration court’s deportation order – which Xinis, a Barack Obama appointee, has implicitly and explicitly chosen to ignore anyway.

Also on Dec. 11, 2025, Xinis found that “no such [removal] order exists for Abrego Garcia” and that the federal defendants in the habeas case “never produced an order of removal despite Abrego Garcia hinging much of his jurisdictional and legal arguments on its non-existence.”

The judge did, however, acknowledge the bare existence of the document in the context of ICE’s own reference to the immigration court.

From the court’s earlier ruling, at length:

The ICE Order of Supervision also states that Abrego Garcia was “ordered removed” on October 10, 2019, despite no such order having issued on that date. Instead, the ICE Order of Supervision seems to rely on an “order” issued last night from Immigration Judge Phillip Taylor. The Court does not opine on this newest “order” here. But the Court does note that this “order” was issued nunc pro tunc, effective October 10, 2019.

Abrego Garcia’s Monday filing further pushes against his re-detention by noting that he has already been held in custody for six months and that his would-be deportation is still a far-fetched idea.

“If, after six months of post-removal-order detention, a petitioner ‘provides good reason to believe that there is no significant likelihood of removal in the reasonably foreseeable future,’ then immigration detention becomes unlawful unless the Government proves that removal is reasonably foreseeable,” the father of three’s attorneys argue, citing a 2001 Supreme Court case on the issue.

To be sure, the Trump administration is still trying to deport Abrego Garcia. But it is barred from doing so in its preferred manner.

By now, the government has repeatedly expressed its intentions to deport Abrego Garcia to African countries, such as Uganda, Eswatini, Ghana, or Liberia, even as the plaintiff has expressed a willingness to self-deport to Costa Rica — and even as Costa Rica has repeatedly expressed a desire to accept Abrego Garcia as a refugee. The U.S. government has argued that Costa Rica took itself off the table.

In that dimension of the case, Xinis has been withering, describing the Trump administration’s in-court efforts with regard to Costa Rica as “affirmatively” misleading the court through “misrepresentation.”

And that island nation angle, Abrego Garcia says, is exactly why the foreseeability of his deportation is all but nonexistent.

Again, the plaintiff’s latest motion, at length:

Removal is no more foreseeable today than it was when the Court granted Abrego Garcia’s habeas petition. Now, as then, there is no viable third country other than Costa Rica. So long as the Government continues its “inexplicable reluctance” to remove Abrego Garcia to Costa Rica, he remains in “removable-but-unremovable limbo,” With no viable removal country, detention now would not serve any legitimate purpose, but amount to nothing more than detention for detention’s sake. Thus, even if there were a statutory justification for detention under § 1225 or § 1226, detaining Abrego Garcia now “cannot be squared with the ‘basic purpose’ of holding him to effectuate removal.”

“To the contrary, such detention untethered from any lawful purpose, would be punitive and violate due process,” the motion goes on.