Abrego Garcia v. Noem et al

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UNITED STATES DISTRICT COURT
DISTRICT OF MARYLAND
Kilmar Armando Abrego Garcia,
Petitioner,
v.
Kristi Noem, et al.,
Respondents.
Civ. No. 8:25-02780-PX
MEMORANDUM ORDER
On December 11, 2025, this Court granted Kilmar Armando Abrego Garcia’s Petition for
Writ of Habeas Corpus filed pursuant to 28 U.S.C. § 2241 and ordered his immediate release from
the custody of the Department of Homeland Security Immigration and Customs Enforcement
(“ICE”), on the conditions imposed in the United States v. Abrego Garcia, 3:25-cr-00115-1 (M.D.
Tenn.) (“Tennessee Criminal Matter”). ECF Nos. 110 & 111. The Court principally concluded
that because Respondents had never issued Abrego Garcia a final order of removal, they could not
lawfully detain him to effectuate removal at all. ECF No. 110 at 19–25. Alternatively, the Court
concluded that if Abrego Garcia had been held pursuant to 8 U.S.C. § 1231 to effectuate third-
country removal, his continued detention was constitutionally infirm under Zadvydas v. Davis, 533
U.S. 678 (2001). ECF No. 110 at 25–31. Thus, the Court ordered his immediate release. ECF
No. 111.
Although Respondents released Abrego Garcia pursuant to this Court’s Order, they also
appeared to make speedy plans to re-detain him, in violation of certainly the spirit, if not the letter,
of that decision. 	E.g., ECF Nos. 112 & 112-1. 	Consequently, on December 12, 2025, Abrego
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Garcia filed an emergency motion for a Temporary Restraining Order (“TRO”) to prevent
Respondents from immediately re-detaining him. ECF No. 112. The Court granted that motion
pending supplemental briefing and further consideration. ECF No. 114.
The matter at ECF No. 112 is now ripe for resolution. For the reasons stated below, the
Court grants Abrego Garcia’s request to convert the TRO to one for injunctive relief and clarifies
that the Court’s habeas relief includes enjoining his re-detention under Zadvydas and its progeny,
as previously articulated. See ECF Nos. 110 & 111.
The Court fully incorporates its decision granting habeas relief at ECF Nos. 110 & 111 and
will summarize only relevant developments since that time. Within hours after the Court granted
Abrego Garcia’s habeas petition, Immigration Judge Phillip Taylor issued an order nunc pro tunc
to correct a “scrivener’s error;” namely, the omission of an order of removal to El Salvador within
the October 10, 2019, order granting Abrego Garcia’s withholding of removal (“withholding
order”). ECF No. 112-2 at 5 (the “nunc pro tunc order”). The nunc pro tunc order specifically,
Amend[ed] the [October 10, 2019] written decision in this case by adding the following
language: The Respondent is ordered removed to El Salvador based on the charge contained
in the Notice to Appear, but the Respondent’s application for withholding of removal to El
Salvador pursuant to INA § 241(b)(3) is granted.
ECF No. 112-2 at 5 (emphasis added).
Neither party appealed the issuance of the nunc pro tunc order, and it became final on
January 12, 2026. 	The parties now agree that as of October 10, 2019, Abrego Garcia has been
subject to an order of removal to El Salvador for which he received withholding protection. ECF
No. 137 at 3; ECF No. 139 at 8. Similarly, the parties agree that Respondents’ power to detain
Abrego Garcia can only be to effectuate lawful removal to a third country pursuant to 8 U.S.C. §
1231. ECF Nos. 137 & 139.1
1 Respondents had previously argued that until the nunc pro tunc order was final, Abrego Garcia was subject to
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Section 1231(a)(1)(A) provides that “when a [noncitizen] 2 is ordered removed, the
Attorney General shall remove the [noncitizen] from the United States within a period of 90 days
(in 	this 	section 	referred 	to 	as 	the ‘removal 	period’).” 	Id. 	(emphasis 	added). 	Section
1231(a)(1)(B)(i), in turn, defines the “removal period” as beginning on, among others not relevant
here, “the date the order of removal becomes administratively final.” During that 90-day removal
period, the non-citizen “shall be detained.” 	8 U.S.C. § 1231(a)(2)(A). 	And as previously
articulated in this Court’s December 11, 2025, decision, if the noncitizen is not removed during
the removal period or the three months thereafter (collectively the six-month presumptive period
articulated in Zadvydas), his continued detention may violate due process, and his release may be
constitutionally compelled. ECF No. 110 at 25–28.
Now, however, Respondents argue that because the nunc pro tunc order did not become
final until January of this year, neither did the underlying 2019 order of removal. ECF No. 137 at
1, 6. Thus, say Respondents, because the order of removal did not become “administratively final”
until last month, Abrego Garcia is still within the statutory “removal period,” and his immediate
re-detention and the resetting of the Zadvydas period are required. ECF No. 137 at 5–6.
Abrego Garcia responds that the nunc pro tunc order merely corrected that which should
have been recorded in 2019, and that the correction of the self-styled “scrivener error” did not
render the order of removal nonfinal. ECF No. 139 at 6. Rather, the order of removal, like the
withholding order, became final in November 2019, when the time to appeal that order had passed.
ECF No. 139 at 6–7 (citing 8 U.S.C. § 1101(a)(47)(B) and 8 C.F.R. § 1241.1(c)).
detention under 8 U.S.C. §§ 1225 or 1226. See ECF Nos. 129 & 129-1. They no longer take this position. ECF No.
137 at 3 –6.
2 This opinion uses the term “noncitizen” as equivalent to the statutory term “alien,” in keeping with recent preferred
nomenclature. Avilez v. Garland, 69 F.4th 525, 527 n.1 (9th Cir. 2023) (collecting cases). See Barton v. Barr, 590
U.S. 222, 254 n.2 (2020) (Kavanaugh, J., concurring) (“This opinion uses the term ‘noncitizen’ as equivalent to the
statutory term ‘alien.’”) (citing 8 U.S.C. § 1101(a)(3). See, e.g., United States v. Palomar-Santiago, 593 U.S. 321
(2021); Patel v. Garland, 596 U.S. 328 (2022).
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Abrego Garcia has the better argument. To understand why requires a brief explanation of
what is—and is not—a “nunc pro tunc” order.
Nunc pro tunc means “now for then.” Roman Catholic Archdiocese of San Juan, P.R. v.
Feliciano, et al., 589 U.S. 57, 65 (2020) (citation omitted). 	A nunc pro tunc order, therefore,
represents a narrow, equitable remedy, rarely invoked to make historic court records “reflect what
the . . . court actually intended to do at an earlier date;” that is, to make “the record[] speak the
truth.” Carino v. Garland, 997 F.3d 1053, 1058 (9th Cir. 2021) (citations omitted). Accordingly,
a legitimate nunc pro tunc order must be given the “same legal force and effect as if done at [sic]
time when it ought to have been done.” Id. (quoting United States v. Allen, 153 F.3d 1037, 1044
(9th Cir. 1998)) (emphasis added). 	See also Nunc Pro Tunc, Black’s Law Dictionary (5th ed.
1979); In re Patel, 142 F.4th 1313, 1322 (11th Cir. 2025) (nunc pro tunc order has “retroactive
legal effect” with the “same legal force and effect as if made at the time when it should have been
made”) (citation omitted); Patterson v. Chrysler Grp. LLC, 845 F.3d 756, 761 (6th Cir. 2017)
(nunc pro tunc orders “merely make the [court’s records] speak the truth) (citation omitted);
Matthies v. R.R. Ret. Bd., 341 F.2d 243, 247 (8th Cir. 1965) (“ But the function of an order nunc
pro tunc is not to make an order now for then but to enter now for then an order previously made.”)
(citation omitted). 	Whatever the corrective action is, it must be entered “as of a time when it
should or might have been entered up.” Mitchell v. Overman, 103 U.S. 62, 64–65 (1880); see also
Gagnon v. United States, 193 U.S. 451, 456 (1904) (“The power to amend its records, to correct
mistakes of the clerk or other officer of the court, inadvertencies of counsel, or to supply defects
or omissions in the record, even after the lapse of the term, is inherent in the courts of justice”).3
3 The propriety of using the doctrine of nunc pro tunc to insert a substantive order of removal may be up for debate.
See Glynne v. Wilmed Healthcare, 699 F.3d 380, 384 (4th Cir. 2012) (“but where the court has omitted to make an
order which it could have made, and in fact intended to make, it cannot subsequently make the same nunc pro tunc,
so as to make it binding upon the parties to the suit from the date when it was so intended to have been entered.”)
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By contrast, a nunc pro tunc order, is not one which “rewrite[s] [the] history” of a case.
W.N.J. v. Yocom, 257 F.3d 1171, 1172 (10th Cir. 2001) (citation omitted); see also Cent. Laborers’
Pension, Welfare and Annuity Fund v. Griffee, 198 F.3d 642, 644 (7th Cir. 1999) (same). Nor is
it one that alters the substantive rights of the litigants. 	Mitchell, 103 U.S. at 65 (nunc pro tunc
orders are “founded in right and good sense, and to afford a safe and certain guide for the
administration of justice,—it is the duty of the court to see that the parties shall not suffer by the
delay.”). A nunc pro tunc order, for example, cannot effectively reset the statutes of limitations,
see Patterson, 845 F.3d at 762, or restart the time to bring an appeal. See Crangle v. Kelly, 838
F.3d 673, 680 (6th Cir. 2016) (where a putative “nunc pro tunc” order changed the substance of
petitioner’s sentence, the court construed the order as “a new judgment that reset the one year
statute of limitations” to file a habeas corpus petition under 28 U.S.C. § 2244(d)(2)); see also
Herzog Contracting Corp. v. McGowen, 976 F.2d 1062, 1065 (7th Cir. 1992) (“a party ought not
be able to postpone the deadline for taking an appeal by filing a motion that doesn’t actually ask
for a change in the judgment.”). To construe the effect of the nunc pro tunc order otherwise would
permit the Court or litigants to create loopholes in the finality of judgments simply by recasting it
via a new order issued nunc pro tunc. Patterson, 845 F.3d at 761 (rejecting construction of nunc
pro tunc order that resets limitations because “in such a world, no claim would ever be truly time
barred.”); see also Stansell v. Revolutionary Armed Forces of Colombia, 771 F.3d 713, 748 (11th
Cir. 2014) (rejecting nunc pro tunc order that adds parties to an action as “work[ing] an injustice
on the parties” not earlier named).
(quoting ex parte Buskirk, 72 F. 14, 20–21 (4th Cir. 1896)); see also Transamerica Ins. Co. v. South, 975 F.2d 321,
325 (7th Cir. 1992) (nunc pro tunc power “is no warrant for the entry of an order to record that which was omitted to
be done.”) (quoting W.F. Sebel Co. v. Hessee, 214 F.2d 459, 462 (10th Cir.1954)). The parties did not appeal the nunc
pro tunc order. Accordingly, the Court accepts the validity of the nunc pro tunc order as adding an order of removal
to the withholding order, effective October 10, 2019. See ECF No. 112-1; ECF No. 137 at 2; ECF No. 139 at 8. See
also 8 U.S.C. § 1252(a)(5) & (b)(9).
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Applying these basic principles here, the nunc pro tunc order is one that, by its own terms,
“correct[ed] a scrivener’s error” of having omitted the preceding order of removal that was
necessary for the October 10, 2019, withholding order to be legally effective. ECF No. 112-2 at 5
(“but the order of removal to El Salvador, which should have preceded the order granting him
withholding of removal to El Salvador, was erroneously admitted.”) (emphasis added). Thus, the
nunc pro tunc order did no more than add an order of removal effective October 10, 2019, which
became administratively final thirty days later. Cf. Gray v. Brignardello, 68 U.S. 627, 627 (1863)
(“[A] decree which was not actually meant to be made in a final form, cannot be entered in that
shape nunc pro tunc in order to give validity to an act done by a judicial officer under a supposition
that the decree was final instead of interlocutory.”).
This is the only reading consistent with a true nunc pro tunc order. 	To read the order
otherwise, as Respondents suggest, would indeed rewrite the history of this case. It would restart
Respondents “removal period” pursuant to § 1231, and by extension, eviscerate the removal period
and the six years when Respondents did nothing to effectuate third-country removal. See ECF No.
110 at 7–14. Respondents reading would also conveniently erase this last year of Abrego Garcia’s
detention and count none of it as relevant to the Zadvydas analysis. 	Because a “now for then”
order cannot alter substantive rights or rewrite history, the Court must reject Respondents’
arguments.
Instead, the nunc pro tunc order simply made the historic record “speak the truth” that the
withholding order also included an order of removal to El Salvador but was apparently
inadvertently left out from the withholding order. Crosby v. Mills, 413 F.2d 1273, 1277 (10th Cir.
1969). See also Glynne, 699 F.3d at 384 (collecting cases). Thus, this Court—and Respondents—
must accept that truth, and the obvious legal consequences that flow from it. Because the nunc
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pro tunc order itself is now final, then the underlying order of removal, effective as of October 10,
2019, became administratively final in November 2019. By extension, the “removal period” for
which Abrego Garcia’s detention had been compelled, was over long ago.
As to what this means for Abrego Garcia’s continued release, it secures rather than
undermines it. 	The Court had previously articulated the many reasons why the teachings of
Zadvydas demanded release. ECF No. 110 at 25–30. Those reasons, and the factual underpinnings
for them, squarely apply now that Abrego Garcia has a final order of removal and withholding of
removal to El Salvador as of November 2019.
The Court incorporates the reasons articulated at ECF No. 110, and for clarity, summarizes
them. 	First, since late 2019, Respondents made no effort to remove Abrego Garcia to a third
country. They have also held him in some form of detention since March 2025 until this Court
ordered his release, which even excepting the time spent in federal criminal custody, amounts to
the presumptive six months of detention accorded to Respondents under Zadvydas. Add to this,
the years of Respondents’ inaction in effectuating third-country removal cuts decidedly against
any requested finding that Abrego Garcia’s removal is reasonably foreseeable. See, e.g., Zavvar
v. Scott, Civ. No. TDC-25-2104, 2025 WL 2592543 (D. Md. Sept. 8, 2025) (17 years of no efforts,
or at best, minimal, unsuccessful efforts to effectuate third-country removal combined with no
imminent prospect of removal warranted release under Zadvydas); Villanueva v. Tate, 801 F. Supp.
3d 689, 703 (S.D. Tex. 2025) (granting petition for release under Zadvydas where “during the 8-
year period since Villanueva was ordered removed,” and while petitioner was on release, “the
government’s efforts to remove him—sparse and sporadic as they may have been—have been
unsuccessful.”).
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Second, even if the Court does not count Abrego Garcia’s months in which Respondents
procured his detention in a Salvadoran prison as time strictly spent in ICE custody, Abrego Garcia
has nonetheless demonstrated that “no significant likelihood of removal” exists “in the reasonably
foreseeable future,” thus compelling release. Zadvydas, 533 U.S. at 701. Regardless of the actual
jailer, Respondents had purchased Abrego Garcia’s detention in El Salvador and disingenuously
slow footed his return. See generally, Abrego Garcia v. Noem et al., 8:25-cv-00951-PX (D. Md.
2025). See also ECF No. 110 at 4–5. And since August 2025, Respondents have refused to procure
Abrego Garcia’s immediate removal to Costa Rica in favor of phantom removals to three (maybe
four) African countries. Indeed, since Abrego Garcia secured his release from criminal custody in
August 2025, Respondents have made one empty threat after another to remove him to countries
in Africa with no real chance of success. ECF No. 110 at 7–14. At the same time, Respondents
purposely—and for no reason—ignored the one country that has consistently offered to accept
Abrego Garcia as a refugee, and to which he agrees to go. Id. See also ECF No. 52 at 102:8–12,
105:12–15 (Respondents’ witness acknowledging the absence of any evidence that “Abrego
Garcia going to Costa Rica would be prejudicial to the interests of the United States”).4
Although Respondents still claim that Liberia would accept Abrego Garcia, more recently
they have asserted that they are pursuing removal to “various countries” apart from Liberia, thus
undermining the reliability of Liberia itself as a legitimate option. ECF No. 137 at 10. And as of
January 14, 2026, Respondents had not yet secured any travel documents necessary to effectuate
Abrego Garcia’s third-country removal, despite their claims to be “working to get travel
4 In scores of cases that this Court has reviewed involving similar Zadvydas challenges, none involve a petitioner who
has agreed to deport to a third country willing to take him, yet who remains in Respondents’ custody under the pretense
of effectuating prompt third-country removal. Continued detention on these extraordinary facts would violate due
process in any event. See Gurung v. Warden, S. Texas Ice Processing Ctr., No. SA-25-CA-01614-XR, 2026 WL
93145, at *6 (W.D. Tex. Jan. 6, 2026) (“A detained person who brings a Zadvydas claim before the presumptively
reasonable six-month period must prove that ‘there is no significant likelihood of removal in the reasonably
foreseeable future.’”) (quoting Zadvydas, 533 U.S. at 699–700) (emphasis in original).
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documents.” ECF No. 138 at 11:12–16. Cf. Chennah v. Baltazar, Civ. No. 1:26-cv-00112-CNS,
2026 WL 179951, at *3–4 (D. Colo. Jan. 23, 2026) (where no travel documents or any other
evidence to suggest that Respondents’ removal efforts are other than “haphazard” and no evidence
of imminent removal to an identified third country, release under Zadvydas is warranted); Banoub
v. Crawford, No. 3:25CV917, 2025 WL 3723458, at *11–12 (E.D Va. Dec. 23, 2025)
(Respondents’ requests to third countries without having secured travel documents or set a date of
departure does not “remotely demonstrate” removal is likely in foreseeable future); Gomez-Simeon
v. Bondi, No. SA-25-CV-01460-JKP, 2025 WL 3470872, at *2 (W.D. Tex. Nov. 24, 2025) (mere
conclusory statements regarding “efforts to remove the petitioner to a third-party country including
Mexico” insufficient to justify continued detention “with no removal plan”); Douglas v. Baker,
Civ. No. ABA-25-2243, 2025 WL 2997585, at *3 (D. Md. Oct. 24, 2025) (failure to produce
evidence of any efforts taken to remove petitioner to intended third country warranted release
under Zadvydas); Abuelhawa v. Noem, No. 4:25-CV-04128, 2025 WL 2937692, at *9 (S.D. Tex.
Oct. 16, 2025) (conclusory statements of intended removal to a third country are insufficient to
demonstrate significant likelihood of removal) (collecting cases).
From this, the Court easily concludes that there is no “good reason to believe” removal is
likely in the reasonably foreseeable future. Castaneda v. Perry, 95 F.4th 750, 756 (4th Cir. 2024)
(quoting Zadvydas, 533 U.S. at 701). 	Respondents have done nothing to show that Abrego
Garcia’s continued detention in ICE custody is consistent with due process. Thus, he must remain
on the stringent release conditions already imposed by ICE and in the Tennessee Criminal Matter.
Based on the foregoing and related reasons articulated in the decision granting habeas relief
at ECF No. 110 at 25–31, it is this 17th day of February, 2026, hereby ORDERED that:
Respondents are ENJOINED from taking Petitioner Kilmar Armando Abrego Garcia into
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ICE custody. This injunction is made part of the Order at ECF No. 111.
Respondents SHALL immediately transmit this Order to all relevant officers, agents, and
employees under their control and who are involved in this matter and in the Tennessee Criminal
Matter.
Date: 	February 17, 2026
PAULA XINIS
United States District Judge
/s/
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