DOJ says Abrego Garcia must be detained and can ask for a bond hearing — despite its own policy against immigration bond hearings

The Department of Justice is trying yet again to enactment wrongly deported Maryland father and accused quality smuggler Kilmar Abrego Garcia backmost down bars, arguing that if helium disagrees with the decision, helium tin inquire for a enslaved proceeding — the aforesaid benignant of proceeding the authorities has besides argued is not really allowed successful cases similar Abrego Garcia's.

As Law&Crime has antecedently reported, Abrego Garcia was deported successful March from Maryland and imprisoned successful El Salvador astatine the Terrorism Confinement Center (CECOT). The Trump administration, yet admitting the deportation was owed to "administrative error," was ordered to "facilitate" his instrumentality — and it carried retired that instrumentality successful June, weeks aft securing a federal indictment successful Tennessee connected charges of quality smuggling, allegedly stemming from a 2022 postulation stop. Abrego Garcia has claimed that the prosecution was brought vindictively due to the fact that his civilian case brought embarrassment to the U.S. government.

Last week, Maryland U.S. District Judge Paula Xinis granted Abrego Garcia's petition for release from ICE custody. She slammed the Trump administration for holding him "without lawful authority," and for "affirmatively" misleading the tribunal connected Costa Rica's willingness to judge him arsenic a refugee. She concluded that an bid for his removal from the U.S. does not exist.

Love existent crime? Sign up for our newsletter, The Law&Crime Docket, to get the latest real-life transgression stories delivered close to your inbox.

According to the Trump administration's response filed Sunday to Abrego Garcia's exigency merchandise request, Xinis determined that a justice successful 2019 "had neglected to see the words 'ordered removed' astatine the end" of the judge's determination whether to withhold the man's removal to El Salvador. Xinis past concluded that Abrego Garcia "had ne'er really been ordered removed" and "has nary last bid of removal."

"That means helium is not presently removable from the United States," the DOJ said successful its filing. "But it does not mean helium is not taxable to immoderate signifier of detention."

The lack of a last bid of removal lone blocks 1 pathway to detention, the DOJ said — but not all.

"If determination is nary last bid of removal, migration proceedings are ongoing, and Petitioner is taxable to pre-final bid detention nether the abstracted ineligible authorization successful [other national migration statutes]," the filing said. "This Court's caller TRO precluding detention truthful has nary ineligible basis, and indispensable beryllium instantly dissolved."

Those different statutes, according to the DOJ, "authorize detention of aliens during removal proceedings" specified arsenic Abrego Garcia's.

"Nothing astir this Court's bid someway shields Petitioner from the mean detention rules that use to each aliens successful removal proceedings," the DOJ filing says. "Rather, the Supreme Court has expressly recovered that detention remains nether [federal migration law] until determination is an 'administratively last removal order.'"

If Abrego Garcia isn't blessed with the determination to detain him nether the applicable statutes, the authorities says, helium could petition a enslaved hearing.

"An alien who is taxable to discretionary detention whitethorn beryllium released connected bond, either by an ICE serviceman oregon by an IJ astatine a enslaved hearing," the filing says. "At a enslaved hearing, the load is connected the alien to warrant merchandise by showing that helium oregon she is not a formation hazard oregon a danger. An alien whitethorn entreaty the enslaved determination to the [Board of Immigration Appeals]."

However, successful July, the DOJ announced a argumentation ending enslaved eligibility for radical successful ICE detention. As Law&Crime has antecedently reported, ICE instructed each agents to contradict enslaved for anyone who entered the state without "inspection." Under the presumption of the policy, specified immigrants are to beryllium detained "for the duration of their removal proceedings" unless granted parole — a rarer signifier of release. A suit from the ACLU says that the argumentation volition effect successful tens of thousands of radical being "jailed indefinitely portion their migration cases are considered for months oregon years connected end."

The government, contempt its announced argumentation opposing bond, appears to admit that Abrego Garcia does so inactive person "the right to an autarkic appraisal of whether, adjacent assuming helium is detained again, helium whitethorn beryllium released connected bond."

Even if Abrego Garcia is denied bond, he's not retired of options — according to the government, helium tin inactive take to permission the country.

"If an alien is denied bond, the alien is ever escaped to terminate detention by accepting a last bid of removal, qualifying for voluntary departure, oregon (in immoderate instances) simply leaving the United States," the filing says successful a footnote, adding that "an alien who files a petition for reappraisal successful the tribunal of appeals aft the BIA has entered a last removal bid tin depart oregon beryllium removed from the United States and proceed to situation the removal bid from abroad."

Notably, Abrego Garcia has seemingly been invited to permission the U.S. for Costa Rica — a information the Trump medication had denied, starring Xinis to shred the government for "affirmatively" misleading the tribunal connected the issue.