Abrego Garcia v. Noem et al

1
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MARYLAND
*
KILMAR ARMANDO 	*
ABREGO GARCIA,
Petitioner, 	*
Civil Action No. 8:25-cv-02780-PX
v. 	*
KRISTI NOEM, et al., 	*
Respondents.
*
***
MEMORANDUM OPINION
Kilmar Armando Abrego Garcia (“Abrego Garcia”) petitions this Court for a writ of habeas
corpus to release him from the custody of Respondents, Secretary of the Department of Homeland
Security (“DHS”) Kristi Noem, United States Immigration and Customs Enforcement (“ICE”)
Director Todd Lyons, ICE Baltimore Field Office Director Nikita Baker, and Attorney General
Pamela Bondi. ECF No. 1. Since Abrego Garcia’s return from wrongful detention in El Salvador,
he has been re-detained, again without lawful authority. 	Id. 	For this reason, the Court will
GRANT Abrego Garcia’s Petition for immediate release from ICE custody.
I. 	Background
The history of Abrego Garcia’s case is as well known as it is extraordinary. 	The Court
will not recite all of it here, but only those events necessary to explain why Abrego Garcia is
entitled to immediate release.
Case 8:25-cv-02780-PX Document 110 Filed 12/11/25 Page 1 of 31

2
Abrego Garcia is a national of El Salvador. At sixteen years old, in 2012, he came to the
United States as a noncitizen1 to avoid persecution by the notorious gang, Barrio 18. ECF No. 1-
1 at 4; Abrego Garcia v. Noem, 8:25-cv-00951-PX (“Abrego I”), ECF No. 31 at 2–3 (D. Md. 2025).
For many years thereafter, he lived and worked in Maryland. Abrego I, ECF No. 31 at 3. But in
2019, after a brief encounter with Prince George’s County police, ICE took custody of Abrego
Garcia and commenced removal proceedings to El Salvador.2 Id. at 3–4.
Abrego Garcia, in turn, asked an Immigration Judge (“IJ”) for three kinds of relief from
removal: (1) withholding of removal under the Convention Against Torture (“CAT”) 8 C.F.R. §
1208.16, (2) statutory withholding of removal provided in 8 U.S.C. § 1231(b)(3), and (3) asylum.
ECF No. 1-1. Statutory withholding of removal shields a noncitizen from removal to a particular
country if he demonstrates that more likely than not, his “life or freedom would be threatened in
that country because of [his] race, religion, nationality, membership in a particular social group,
or political opinion.” 	8 U.S.C. § 1231(b)(3)(A). 	Like statutory withholding, CAT withholding
shields a noncitizen from being removed to a country if the noncitizen demonstrates that “it is
more likely than not that he or she would be tortured if removed to the proposed country of
removal.” 8 C.F.R. § 1208.16(c)(2). Asylum is a legal protection granted to a noncitizen “who is
outside any country of such person’s nationality . . . who is unable or unwilling to return to, and is
unable or unwilling to avail himself . . . of the protection of, that country because of persecution
or a well-founded fear of persecution on account of . . . membership in a particular social group.”
8. U.S.C. § 1101(a)(42). See also 8 U.S.C. § 1158(b)(1)(A).
1 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).
2 Abrego Garcia’s arrest did not result in criminal charges. Abrego I, ECF No. 31 at 4.
Case 8:25-cv-02780-PX Document 110 Filed 12/11/25 Page 2 of 31

3
After an evidentiary hearing at which Abrego Garcia testified and was found credible, the
IJ granted him statutory withholding of removal and denied the remaining requests. ECF No. 1-1
at 15. The IJ memorialized this determination in a written “memorandum of decision and order”
dated October 10, 2019 (the “October 10 withholding decision” or “withholding decision”). Id.
The October 10 withholding decision referenced as “procedural history” Abrego Garcia’s
concession at a prior hearing that he was an El Salvadoran national who entered the United States
without lawful permission, and that an IJ “found his removability to be established by clear and
convincing evidence.” 	ECF No. 1-1 at 3. 	But nothing suggests the IJ ordered Abrego Garcia
removed to El Salvador. 	In fact, the withholding decision twice erroneously suggested that the
stated country of removal from which Abrego Garcia sought relief was Guatemala. Id. at 9 (“DHS
has failed to carry their burden to show that there are changed circumstances in Guatemala that
would result in the Respondent’s life not being threatened . . . .”); id. at 14 (“DHS has not shown
there are changed circumstances in Guatemala that would result in the Respondent’s life not being
threatened, or that internal relocation is possible and reasonable under the circumstances.”).
The withholding decision also included a separate “order” that did not command Abrego
Garcia’s removal to El Salvador or anywhere else. Id. The order reads in its entirety:
ORDER
It is hereby ordered that:
I. 	the Respondent’s application for asylum pursuant to INA3 § 208 is DENIED;
II. 	the Respondent’s application for withholding of removal pursuant to INA §
241(b)(3) is GRANTED; and
3 The Immigration and Nationality Act, § 101 et seq., 8 U.S.C. § 1101 et seq.
Case 8:25-cv-02780-PX Document 110 Filed 12/11/25 Page 3 of 31

4
III. 	the Respondent’s application for withholding of removal under the Convention
Against Torture is DENIED.
ECF No. 1-1 at 15 (dated and signed by IJ).
For the next six years, Abrego Garcia lived and worked in Maryland subject to an ICE
order of supervision. 	Abrego Garcia I, ECF No. 1-3. 	See also ECF No. 32-10 (employment
authorization identification card); ECF No. 33 (order of supervision). 	But on March 12, 2025,
while driving with his son in the car, ICE agents pulled over Abrego Garcia and arrested him.
Abrego I, ECF No. 31 at 4. Three days later, Respondents forcibly expelled him, along with 252
Venezuelan and Salvadoran nationals, to El Salvador where they were detained in the Terrorism
Confinement Center (“CECOT”). See Nicholas Riccardi and Regina Garcia Cano, Trump
administration deports hundreds of immigrants even as a judge orders their removals be stopped,
AP 	NEWS 	(Mar. 	17, 	2025), 	https://apnews.com/article/trump-venezuela-el-salvador-
immigration-dd4f61999f85c4dd8bcaba7d4fc7c9af. While at CECOT, the men, including Abrego
Garcia, were systematically beaten and tortured. See “You Have Arrived in Hell,” Torture and
Other Abuses Against Venezuelans in El Salvador’s Mega Prison, HUMAN R IGHTS WATCH (Nov.
12, 	2025), 	https://www.hrw.org/report/2025/11/12/you-have-arrived-in-hell/torture-and-other-
abuses-against-venezuelans-in-el. See also Abrego I, ECF No. 211-3 ¶ 116.
In response, on March 24, 2025, Abrego Garcia filed suit in this Court and separately
moved for an injunction directing Respondents to secure his immediate release from CECOT and
his return to the United States. Abrego I, ECF Nos. 1 & 2. On April 4, 2025, the Court granted
such relief, ordering Respondents4 to “facilitate and effectuate” his return to the United States.
Abrego I, ECF No. 21 at 2. Respondents appealed, and within days, the United States Court of
4 Respondents were also Defendants in Abrego I, along with the Department of State and Secretary Marco Rubio.
Abrego I, ECF No. 31. The same legal team represents Respondents and Defendants in both actions.
Case 8:25-cv-02780-PX Document 110 Filed 12/11/25 Page 4 of 31

5
Appeals for the Fourth Circuit and the Supreme Court affirmed the order as modified to command
facilitation of Abrego Garcia’s return “to ensure that his case is handled as it would have been had
he not been improperly sent to El Salvador.” 	Noem v. Abrego Garcia, 145 S. Ct. 1017, 1018
(2025); see also Abrego Garcia v. Noem, No. 25-1345, 2025 WL 1021113, at *1 (4th Cir. Apr. 7,
2025).
In the ensuing weeks, Respondents refused to facilitate Abrego Garcia’s release or his
return.5 However on June 6, 2025, Respondents paroled6 Abrego Garcia to the United States after
securing a federal indictment in the Middle District of Tennessee, a matter that is itself under
scrutiny for vindictive and selective prosecution. 	See United States v. Abrego Garcia, 3:25-cr-
00115-1 (M.D. Tenn.) (“Tennessee Criminal Matter”), ECF Nos. 3 & 104.
Once in criminal custody, and after several hearings, Abrego Garcia was released on
stringent conditions of supervision. See Tennessee Criminal Matter, ECF Nos. 43, 44, 55, 95 &
96. 	But Respondents found this result intolerable and complained bitterly.7 	Respondents also
5 See Abrego I, ECF No. 211-16 (April 18, 2025, White House post announcing Abrego Garcia “is NOT coming
back,” and “is never coming back” from El Salvador) (emphasis in original); Abrego I, ECF No. 211-17 at 13 (April
25, 2025, Time Magazine interview with President Trump wherein he confirmed he has not asked the President of El
Salvador to release and return Abrego Garcia); Abrego I, ECF No. 211-19 at 2 (May 2, 2025, DHS post confirming
Abrego Garcia “will never be allowed to return to the United States”). See also Karina Tsui, Trump says he ‘could’
bring 	Abrego 	Garcia 	back 	from 	El 	Salvador, 	but 	won’t, 	CNN 	(May 	1, 	2025),
https://www.cnn.com/2025/04/30/us/trump-could-bring-abrego-garcia-back-us-hnk.
6 When Respondents returned Abrego Garcia, they granted him significant public benefit parole pursuant to 8 C.F.R.
§ 212.5, which remains valid through June 4, 2026. ECF No. 1 ¶ 34; ECF No. 6 at 2. Notably, such parole is conferred
“for urgent humanitarian reasons or significant public benefit” to a noncitizen “applying for admission to the United
States.” 8 U.S.C. § 1182(d)(5)(A). See also Jennings v. Rodriguez, 583 U.S. 281, 288 (2018); USCIS website defining
“Humanitarian or Significant Public Benefit Parole”, as permission for “an individual, who may be inadmissible or
otherwise ineligible for admission into the United States, to be paroled into the United States for a temporary period.”
Humanitarian or Significant Public Benefit Parole for Aliens Outside the United States, U.S. C ITIZENSHIP AND
I MMIGR . SERV., https://www.uscis.gov/humanitarian/humanitarian_parole (last visited Dec. 10, 2025). Less clear is
how it could ever apply to a noncitizen with a final order of removal. See discussion infra Sections IV. A–B.
7 See, e.g., Tennessee Criminal Matter, ECF No. 98 at 2 (quoting DHS on X); DHS (@DHSgov), X, This is a
LAWLESS judge. This MS-13 gang member, human trafficker and illegal alien will never walk America’s streets
again. (July 23, 2025, at 4:32 ET), https://x.com/DHSgov/status/1948119106785362028; Gary Grumbach & Matt
Lavietes, Judge pauses Kilmar Abrego Garcia’s release from federal custody, NBC (July 23, 2025),
https://www.nbcnews.com/news/us-news/judge-orders-kilmar-abrego-garcia-released-federalcustody-rcna217953
(DHS spokesperson, Tricia McLaughlin, stating “It will be a cold day in hell before this criminal illegal alien is back
Case 8:25-cv-02780-PX Document 110 Filed 12/11/25 Page 5 of 31

6
warned Abrego Garcia that upon his release, ICE would take him into its custody to effectuate his
removal to a country other than El Salvador. See Abrego I, ECF No. 203 at 1; ECF No. 210 at 10.
Abrego Garcia, in response, urged the Court to order his return to Maryland under the ICE
supervision terms that were in effect prior to his wrongful removal. Abrego I, ECF No. 210 at 10.
The Court agreed and ordered Abrego Garcia’s release and return to ICE supervision out of the
Baltimore Field Office. 	Abrego I, ECF No. 239. 	The Court also ordered that in the event
Respondents initiated third-country removal proceedings, they give Abrego Garcia 72 hours’
notice of the intended third country. Id.
Meanwhile, during plea negotiations in the criminal case, Costa Rica offered to grant
Abrego Garcia residency as a refugee. ECF No. 1-3; ECF No. 1-7; Tennessee Criminal Matter,
ECF No. 114-1. Official correspondence dated August 21, 2025, from Costa Rica’s Minister of
Public Security Mario E. Zamora Cordero (“Zamora Cordero”), confirmed:
The Government of Costa Rica intends to provide refugee status or
residency to Mr. Abrego Garcia upon his transfer to Costa Rica. The
Government of Costa Rica assures the Government of the United States of
America that, consistent with that lawful immigration status and Costa
Rican law, it does not intend to detain Mr. Abrego Garcia upon his arrival
in Costa Rica.
The Government of Costa Rica further assures the Government of the
United States of America that it will not remove Mr. Abrego Garcia to any
third country, including Mr. Abrego Garcia’s home country, without Mr.
Abrego Garcia’s consent.
ECF No. 1-3.
on American streets.”); U.S. D EP’ T OF H OMELAND SEC ., Secretary Noem to Host Press Conference Exposing “Worst
of 	the 	Worst” 	Criminal 	Illegal 	Aliens 	in 	TN, 	at 	14:26–14:50 	(YouTube, 	July 	18, 	2025),
https://www.youtube.com/watch?v=6J0-YouvMGo. See also Tricia McLaughlin (@TriciaOhio), X, Kilmar Abrego
Garcia is a dangerous criminal illegal alien. We have said it for months and it remains true to this day: he will never
go free on American soil. 	(June 22, 2025, 7:31 ET), https://x.com/TriciaOhio/status/1936929967423754665;
N EWSMAX, Abrego Garcia Won’t Be on U.S. Soil Much Longer: Tricia McLaughlin, at 4:10–5:00 (YouTube, June
27, 2025), https://www.youtube.com/watch?v=tqOiNZ8jD58 (“[T]his is a man who should not be on U.S. soil for
long and won’t be.”).
Case 8:25-cv-02780-PX Document 110 Filed 12/11/25 Page 6 of 31

7
The next day, on August 22, 2025, as Abrego Garcia left the detention center in Tennessee,
Respondents served him with a Notice to Appear to the Baltimore ICE Field Office the following
Monday. ECF No. 1-4. Respondents separately notified his counsel that they intended to remove
Abrego Garcia to Uganda. 	ECF No. 1-5. 	Abrego Garcia immediately responded with written
notice to Respondents of his fear that if sent to Uganda, he would face persecution, torture and
ultimate refoulment to El Salvador. ECF No. 1 ¶ 41; ECF No. 1-6. He also separately notified
Respondents in writing that Costa Rica was “the country to which I want to be removed.” ECF
No. 1-7.
Abrego Garcia next appeared at the Baltimore ICE Field Office as directed on August 25,
2025. 	ECF No. 6 at 2. 	He was immediately taken into ICE custody, and according to DHS
Secretary Noem, he was “being processed for removal to Uganda” instead of Costa Rica. 	ECF
No. 32-14 at 2.
Abrego Garcia, in turn, filed the Petition pursuant to 28 U.S.C. § 2241, contending that his
removal to Uganda violates 8 U.S.C. § 1231(b)(2) and (b)(3) of the INA; that Respondents’ third-
country removal policy deprives him of procedural and substantive due process; and that his
detention is without lawful authority in the absence of a valid removal order. 	ECF No. 1. 	The
Petition also challenged the constitutionality of Abrego Garica’s continued detention pursuant to
8 U.S.C. § 1231(a)(6) under Zadvydas v. Davis, 533 U.S. 678 (2001), because “[n]o significant
likelihood of removal in the reasonably foreseeable future exists,” thereby undercutting any claim
that he was being detained for the purpose of third-country removal. ECF No. 1 ¶¶ 51–57 (“the
Zadvydas claim”). The Court set a briefing schedule on the Petition and an evidentiary hearing
for October 6, 2025. ECF No. 20.
Case 8:25-cv-02780-PX Document 110 Filed 12/11/25 Page 7 of 31

8
In the days that followed, Respondents took no steps to “process” Abrego Garcia for
removal to Uganda, ostensibly because of his claimed fear of persecution and torture in that
country. 	ECF No. 24 at 19–20; ECF No. 28 at 17; ECF No. 52 at 219:11–15. 	Instead, on
September 5, 2025, Respondents notified Abrego Garcia’s counsel that they now would remove
him to the South African country of Eswatini. ECF No. 27-3. Abrego Garcia immediately asserted
fear of removal to Eswatini on similar grounds. ECF No. 57-1 at 3.
Within days, Eswatini learned of Respondents’ notice to Abrego Garcia and it bit back. On
September 11, 2025, Eswatini’s spokesperson, Thabile Mdluli, announced that “the Government
of Eswatini ha[d] not received any communication regarding this person,” and did not have any
agreement with the United States to receive Abrego Garcia. ECF No. 32-6 at 2. Respondents also
had not done anything with Abrego Garcia’s credible fear assertions, or communicated whether
he would receive similar refugee or other status in Eswatini or be protected from persecution or
torture. ECF No. 27 at 4–5.
Having heard nothing, and with the October 6 hearing approaching, Abrego Garcia asked
the Court to order targeted discovery on the Respondents’ plans to remove him to either Uganda
or Eswatini in lieu of Costa Rica. ECF No. 27 at 6. 	Respondents, for their part, asked to continue
the evidentiary hearing. ECF No. 30 at 3. So, the Court converted the evidentiary hearing to an
in-person status conference. ECF No. 31.
At the conference, the Court tried to assess whether Respondents had made any real effort
toward removing Abrego Garcia in conformity with Zadvydas. ECF No. 44. It quickly became
clear they had not. Respondents, through counsel, could say no more than “Eswatini” has been
“selected” for Abrego Garcia’s removal. ECF No. 48 at 17:12–14. But they had no information
about whether Respondents had even asked Eswatini about the same. Nor did Respondents have
Case 8:25-cv-02780-PX Document 110 Filed 12/11/25 Page 8 of 31

9
any further details about whether any efforts had been made to secure removal to Costa Rica. Id.
at 29:25–30:4. 	This was so even though Abrego Garcia reaffirmed that he would depart “this
afternoon” for Costa Rica, thus obviating the need for any further hearings or adjudication of this
Petition. 	Id. at 30:3–7, 29:11–12 (Simon Sandoval-Moshenberg, counsel for Abrego Garcia,
stating, “If the government’s goal is to effectuate the removal, he would be in Costa Rica right
now as we speak.”).8
Because Respondents had done nothing—other than send emails to Abrego Garcia’s
lawyers about removal to Uganda and Eswatini—Abrego Garcia asked that the Court rule
expeditiously on the Zadvydas claim. ECF No. 48 at 26:9–13. Respondents, in turn, asked for an
evidentiary hearing to demonstrate the sincerity of their third-country removal efforts. ECF No.
48 at 30:14–19. The Court granted their request and specifically ordered Respondents to produce
a witness or witnesses to testify about “what steps, if any, Respondents have taken to remove
Petitioner to Eswatini or any other country, including but not limited to, Costa Rica,” and “what
additional steps, if any, Respondents will take in the reasonably foreseeable future to remove
Petitioner to Eswatini or any other country, including but not limited to, Costa Rica.” ECF No. 47
at 1–2.
The Court held an evidentiary hearing four days later, on October 10, 2025. ECF No. 50.
Respondents produced one witness, Deputy Assistant Director of ICE Enforcement and Removal
Operations, John Schultz (“Schultz”). 	ECF No. 52 at 13:3–9. 	Contrary to the Court’s order,
Schultz was not prepared at all to discuss Costa Rica’s offer to accept Abrego Garcia as a refugee.
Schultz candidly admitted he had not even seen Costa Rica’s August 21, 2025, correspondence,
8 Despite the intense global attention paid to this case and the purpose of the status hearing, counsel for Respondents
came to this hearing supposedly unaware of any removal efforts pertaining to Abrego Garcia. Even with a recess,
counsel still could not “reach anyone that could provide an answer.” ECF No. 48 at 30:14–33:4.
Case 8:25-cv-02780-PX Document 110 Filed 12/11/25 Page 9 of 31

10
and he had “no knowledge” about whether the Respondents had done anything to commence
removal proceedings to Costa Rica. See id. at 84:24–85:1, 101:8–14 & 106:19–24.
Next as to Uganda, Schultz testified that Respondents had asked Uganda to take Abrego
Garcia, but it “ultimately said no.” ECF No. 52 at 134:16–22. As to Eswatini, Schultz testified
that Respondents had not formally asked Eswatini to accept Abrego Garcia until the Wednesday
night before the Friday evidentiary hearing. ECF No. 52 at 56:13–21 (“Q: So the United States
had not asked Eswatini to accept Mr. Abrego until this past Wednesday? Schultz: Your Honor, I
don’t know what occurred in, say, September. That was before the notification that Eswatini was
the country. I just know that a request was made Wednesday evening to Eswatini. Q: But you have
no other information of prior requests? Schultz: No, Your Honor.”). 	Schultz also reported that
even though Eswatini “said no,” “the conversations weren’t over.” See id. at 29:6–11, 54:23–25
& 56:5–7.
Schultz further confirmed that the night before the hearing, Respondents notified Abrego
Garcia’s counsel that he would now be removed to yet a third African country, Ghana. ECF No.
52 at 32:11–19, 156:3–25. But once this purported designation to Ghana became public, Ghanian
Foreign Minister, Sam Okudzeto Ablakwa, immediately announced that “Ghana [was] not
accepting Abrego Garcia. 	He cannot be deported to Ghana,” and that this position “has been
directly and unambiguously conveyed to U.S. authorities.” 	ECF No. 49-1. 	See also Maxwell
Nyagamago, ‘Ghana is not accepting Abrego Garcia,’ – Ablakwa denies reports,” P ULSE (Oct.
10, 	2025), 	https://www.pulse.com.gh/story/ghana-is-not-accepting-abrego-garcia-ablakwa-
denies-reports-2025101014063418514.
Schultz ultimately confirmed that he knew of no impediment to remove Abrego Garcia to
Costa Rica, including no statement from Respondents that effectuating such removal would run
Case 8:25-cv-02780-PX Document 110 Filed 12/11/25 Page 10 of 31

11
contrary to “U.S. interests.” ECF No. 52 at 105:12–15. Schultz further attested that he had been
told nothing about why Respondents had not yet processed Abrego Garcia’s removal to Costa Rica.
Id. at 105:16–22, 106:11–24. 	Counsel for Abrego Garcia, in turn, emphasized that his client’s
continued detention must be for purposes other than facilitating removal because if Respondents
“want to remove him to Costa Rica, you will hear no objection from us . . . . They can put him on
the next plane to Costa Rica.” ECF No. 107 at 78:1–5. See also ECF No. 52 at 184:5–12.
Indeed, in oral argument, Respondents’ counsel acknowledged that the only legitimate
ground to hold Abrego Garcia was to effectuate removal. ECF No. 52 at 213:15–18 (“[I]t’s clear
that it’s detention for a removal.”). And yet, they had no answers as to why the “policymaker[s]”
eschewed Costa Rica. Id. at 206:16–18. The best they could do was “stipulate” that “Costa Rica
is on the table if Eswatini falls through.” Id. at 107:8–10.9
The Court concluded the hearing by announcing it would reach the Zadvydas claim
expeditiously. But before the Court could formally rule, Respondents notified Abrego Garcia and
the Court on October 24, 2025, that now they intended to remove him to yet a fourth African
country, Liberia. 	ECF No. 56. 	Liberia evidently agreed to accept Abrego Garcia on a “strictly
humanitarian” and “temporary” basis, with promises to not to persecute, torture or refoul him. Id.;
ECF No. 72-6 at 3.
The Court convened a status conference after the Liberia notice, during which Abrego
Garcia requested one final hearing to address the remaining counts of his Petition. ECF No. 64. at
9:3–15. Respondents posed no objection and indicated they would separately move for this Court
9 The Court does not credit Respondents’ contention that Abrego Garcia had claimed fear of removal to Costa Rica.
ECF No. 52 at 206:16–24. Abrego Garcia’s counsel admitted he had mistakenly included Costa Rica on a blanket
fear assertion that named several other countries. ECF No. 52 at 188:14–189:2. Abrego Garcia also has confirmed in
writing, and repeatedly through counsel, his consent to be removed to Costa Rica without delay. The Court credits
this evidence.
Case 8:25-cv-02780-PX Document 110 Filed 12/11/25 Page 11 of 31

12
to dissolve its temporary prohibition on removing Abrego Garcia from the continental United
States.10 	Id. at 13:10–15. 	The Court allowed supplemental briefing and set a hearing for the
following month. Id. at 18:12–24.
In their subsequent filings, Respondents justified removing Abrego Garcia to Liberia
because it was “the only state” willing to accept him. ECF No. 75-6 ¶ 6. They told the Court that
Costa Rica “does not wish to receive” Abrego Garcia any longer, and that Costa Rica “would not
simply accept” Abrego Garcia. ECF No. 85 at 9 & 14. Thus, said Respondents, “they can hardly
be at fault for not removing Petitioner to a country that refuses to accept him.” Id. at 14 (emphasis
added). Respondents also attached the sworn Declaration of ICE Acting Assistant Director for the
Removal Division, Johnathan Cantú (“Cantú”), as purported evidence of Costa Rica’s change of
heart (the “Cantú Declaration”). ECF No. 75-6.
Oddly, however, Respondents submitted their memoranda and the Cantú Declaration under
seal11 and moved to seal the evidentiary hearing entirely. ECF No. 91. This represented a sharp
departure from their prior practice to seal only that which is necessary to protect diplomatic
communications as typically memorialized in a diplomatic note or memorandum of understanding.
See, e.g., ECF Nos. 73-7 & 75-3; Abrego I, ECF No. 141. Respondents also did not attach any
communication from Costa Rica reflecting any recission or modification of its prior offer to
receive Abrego Garcia as a refugee.
10 Given that Respondents had once illegally removed Abrego Garcia, the Court had ordered Respondents not to
remove Abrego Garcia from the United States absent further order of the Court. ECF Nos. 13 & 20. The Court also
made plain that at any time, Respondents could move for dissolution of the injunction if it presented an impediment
to expeditious removal. 	See, e.g., ECF No. 24 at 15:7–9; id. at 21:4–11. 	Nonetheless, at points, counsel for
Respondents tried to blame the injunction as imposing some chimeric obstacle to their removal efforts. 	This
misdirection failed, as the Court was always clear that once actual removal was underway, if taken consistently with
the INA and due process, the Court would dissolve the injunction upon Respondents’ motion. See, e.g., ECF No. 52
at 34:3–37:12.
11 Filings that are accompanied by a motion to seal are provisionally sealed pending resolution of the sealing motion.
See D. Md. Loc. R. 105.11.
Case 8:25-cv-02780-PX Document 110 Filed 12/11/25 Page 12 of 31

13
Abrego Garcia quickly asked the Court to make Cantú available for testimony. ECF Nos.
81 & 82. The Court granted that motion over the Respondents’ vigorous objection. ECF No. 92
at 12:18–13:20. 	The Court also unsealed the relevant filings and ordered the Respondents and
their lawyers to prepare the witness in good faith to answer questions about Costa Rica’s
willingness to accept Abrego Garcia. ECF Nos. 90, 94 & 95.
At the hearing on November 20, it became evident that once again, Respondents defied
this Court’s orders.12 They simply refused to prepare and produce a witness with knowledge to
testify in any meaningful way. Cantú candidly admitted, for example, that he had no prior
involvement in Abrego Garcia’s case and spent approximately five minutes preparing to testify.
See ECF No. 107 at 33:3–4, 39:5–9. Cantú also shared that none of Respondents’ attorneys had
discussed this Court’s order with him or showed him its contents. 	See id. at 42:1–24. 	Nor did
Cantú understand the purpose of his testimony. Id.
Then at the hearing, Respondents showcased Cantú’s ignorance about the content of his
Declaration pertaining to Costa Rica. 	As the pointed questions of Respondents’ counsel made
clear, Cantú’s lack of knowledge was planned and purposeful.
Counsel: 	So paragraph 4, final sentence [of the Cantú Declaration], do
you 	see 	where 	it 	says 	the 	word—the 	words 	“certain
understandings”?
Cantú: 	I found it. Yes, I do. I see it.
Counsel: 	What are the certain understandings referenced in the last
sentence?
Cantú: 	I don’t know . . .
12 Cantú is the sixth witness whom the Court directed Respondents to prepare for either deposition or in-court testimony
concerning this case. See, e.g., Abrego I, ECF Nos. 117 & 146 (collecting testimony of three deponents); ECF No.
234 at 36:23–39:9 (Giles testimony); see also ECF No. 52 at 108:3–17 (Schultz testimony); ECF No. 107 at 42:2–25
(Cantú testimony). Each witness was either unprepared or defiant in their refusal to answer questions. The Court will
consider the entire course of conduct when it reaches the motions pending in Abrego I.
Case 8:25-cv-02780-PX Document 110 Filed 12/11/25 Page 13 of 31

14
Counsel: 	What are the “contingencies” referenced in the last sentence?
Cantú: 	I do not know . . .
Counsel: 	What are the “interim developments” referenced in
paragraph 5?
Cantú: 	I don’t know.
ECF No. 107 at 26:8–27:12 (counsel for Respondents, Jonathan Guynn (“Guynn”), questioning
Cantú). See also id. at 53:8–9 (Guynn, at sidebar with Court, stating “I’ll just say I told you this
was exactly what was going to happen,” regarding the witness’ ignorance on Costa Rica as a viable
country of removal).
Ultimately, Respondents’ calculated effort to take Costa Rica “off the table” backfired.
Within 24 hours, Costa Rica, through Minister Zamora Cordero, communicated to multiple news
sources that its offer to grant Abrego Garcia residence and refugee status is, and always has been,
firm, unwavering, and unconditional. See ECF No. 108 at 1. See also Maria Sacchetti, Costa Rica
says it would accept Kilmar Abrego García, contradicting U.S., WASH. P OST (Nov. 21, 2025),
https://www.washingtonpost.com/immigration/2025/11/21/kilmar-trump-deport-costarica/
(Zamora Cordero stating that Costa Rica would receive Abrego Garcia “under humanitarian
conditions that guarantee the full respect for his rights and liberties . . . . That position that we have
expressed in the past remains valid and unchanged to this day.”); Laura Romero, Costa Rican
official says country willing to accept Abrego Garcia, contradicting Trump administration
officials, ABC NEWS (Nov. 21, 2025), https://abcnews.go.com/International/costa-rican-official-
country-accept-abrego-garcia-contradicting/story?id=127775855, (Zamora Cordero confirming
that “Costa Rica’s offer to receive Mr. Abrego Garcia for humanitarian reasons remains in place .
. . . My letter dated August 25, 2025 [sic], is the official position of the government.”).
Respondents have sat mum since.
Case 8:25-cv-02780-PX Document 110 Filed 12/11/25 Page 14 of 31

15
II. 	Abrego Garcia’s Requested Relief
Despite this tortured history, Abrego Garcia’s arguments in favor of release are quite
simple. He contends that his detention is without lawful authority because Respondents have no
final order of removal authorizing as much under the third-country removal statute, 8 U.S.C. §
1231. 	Thus, says Abrego Garcia, his release is compelled. 	ECF No. 1 ¶¶ 51–57, 68–69.
Alternatively, Abrego Garcia maintains that Respondents’ steadfast refusal to remove him to Costa
Rica amidst constant threats of removal to a series of African countries that expressed no or limited
desire to take him can only be construed as punitive and contrary to the purposes of ICE detention.
ECF No. 71 at 6 & 17.
Respondents’ central retort is that this Court lacks jurisdiction to reach the Petition at all.
Accordingly, the Court first addresses whether it retains jurisdiction to reach the claims.
III. 	Jurisdiction
Respondents contend the Court lacks subject matter jurisdiction pursuant to three
provisions of the INA, 8 U.S.C. §§ 1252(g), (a)(5) and (b)(9). See ECF Nos. 28 & 72. 	Each is
easily disposed.
First, as to 8 U.S.C. § 1252(g), this provision bars this Court from hearing three discrete
kinds of claims “arising from” an action of the Attorney General “to commence proceedings,
adjudicate cases, or execute removal orders against any [noncitizen] under this chapter.” See Reno
v. American Arab Anti–Discrimination Comm., 525 U.S. 471, 485 n.9 (1999). Abrego Garcia’s
Petition does not challenge the commencement of proceedings or adjudication of any case.
Accordingly, the only conceivable argument for which § 1252(g) strips the Court of jurisdiction is
that the Petition challenges the “execution of a removal order.”
Case 8:25-cv-02780-PX Document 110 Filed 12/11/25 Page 15 of 31

16
But Abrego Garcia does not challenge the execution of a removal order. 	Instead, he
contends that his detention is unlawful and not reasonably foreseeable because he is held in the
absence of such a removal order. 	Thus, Abrego Garcia’s request for immediate release cannot
touch upon the execution of a removal order if no such order exists. See, e.g., Madu v. U.S. Att’y.
Gen., 470 F.3d 1362, 1367–68 (11th Cir. 2006) (holding a district court retains jurisdiction over a
§ 2241 habeas petition challenging detention based on the lack of a removal order and finding that
challenge distinct from the challenge to the “execution” of a removal order as barred under §
1252(g)); cf. Kumarasamy v. Att’y Gen. of U.S., 453 F.3d 169, 172 (3d Cir. 2006), as amended
(2006) (holding district court retains jurisdiction to reach § 2241 petition because petitioner’s
challenge to detention absent an order of removal did not deprive court of jurisdiction under 8
U.S.C. § 1252(a)(5)); Rivas-Melendrez v. Napolitano, 689 F.3d 732, 737 (7th Cir. 2012)
(recognizing jurisdictional distinction between “a challenge to a removal order and an argument
that no order of removal even existed to be executed.”).13
Second, and for similar reasons, neither 8 U.S.C. §§ 1252(a)(5) nor (b)(9) bar this Court’s
power to adjudicate the Petition. 	Sections 1252(a)(5) and (b)(9) were enacted to “eliminate[]
habeas review over all final orders of removal,” A. Singh v. Gonzales, 499 F.3d 969, 977 (9th Cir.
2007), by channeling such challenges directly to the “appropriate court of appeals . . . [as] the sole
and exclusive means for judicial review of an order of removal . . . .” Id. (quoting 8 U.S.C. §
1252(a)(5)). See also § 1252(b)(9) (channeling “[j]udicial review of all questions of law and fact,
including interpretation and application of constitutional and statutory provisions, arising from any
action taken or proceeding brought to remove a [noncitizen] from the United States under this
subchapter” as “available only in judicial review of a final order under this section”). But again,
13 The Court similarly retains jurisdiction over Petitioner’s Zadvydas claim. See Zadvydas, 533 U.S. at 688–89.
Case 8:25-cv-02780-PX Document 110 Filed 12/11/25 Page 16 of 31

17
Abrego Garcia is not challenging a final order of removal. He argues instead that his detention
lacks lawful authority because there is no such order. See A. Singh, 499 F.3d at 978 (“By virtue
of their explicit language, both §§ 1252(a)(5) and 1252(b)(9) apply only to those claims seeking
judicial review of orders of removal.”). In this important respect, “the question presented by [the
habeas petition] is whether there is a removal order at all,” which is different than “whether an
extant removal order is lawful.” Madu, 470 F.3d at 1367 (citing Kumarasamy, 453 F.3d at 172).
Because the Petition, at bottom, turns on the absence of a removal order, the channeling provisions
simply “do[] not apply.” 	Madu, 470 F.3d at 1368. 	See also Kumarasamy, 453 F.3d at 172;
Nadarajah v. Gonzales, 443 F.3d 1069, 1075–76 (9th Cir. 2006) (“By its terms, the jurisdiction-
stripping provision does not apply to federal habeas corpus petitions that do not involve final orders
of removal. Here, as we have noted, there is no final order of removal . . . . Therefore, in cases
that do not involve a final order of removal, federal habeas corpus jurisdiction remains in the
district court, and on appeal to this Court, pursuant to 28 U.S.C. § 2241.”). Cf. Zadvydas, 533
U.S. at 688 (“We conclude that § 2241 habeas corpus proceedings remain available as a forum for
statutory and constitutional challenges to post-removal-period detention.”); Jennings v. Rodriguez,
583 U.S. 281, 293 (2018) (rejecting expansive interpretation of § 1252(b)(9) as applied to claims
of “prolonged detention”).
For these reasons, the Court retains jurisdiction to reach Abrego Garcia’s arguments
because none concern the review of a removal order.14 	The Court next turns to the merits of
Abrego Garcia’s grounds for relief.
14 Respondents’ two remaining jurisdictional arguments focus on Abrego Garcia’s subsidiary due process challenge
to Respondents’ policy concerning third-country removal procedures, citing 8 U.S.C. § 1252(a)(4), the Foreign Affairs
Reform and Restructuring Act of 1998 § 2242(d) (codified as Note to 8 U.S.C. § 1231) and 8 U.S.C. §
1252(a)(2)(B)(ii). ECF No. 72 at 27–28. See also ECF No. 28 at 12 n.2. The Court need not reach these jurisdictional
questions because it grants the petition on other grounds.
Case 8:25-cv-02780-PX Document 110 Filed 12/11/25 Page 17 of 31

18
IV. 	Merits of the Petition
Throughout, Abrego Garcia has maintained that no order of removal exists for him. ECF
No. 1 ¶¶ 54, 68–69; ECF No. 32 at 10 & 32; ECF No. 87 at 11. Although the proceedings until
now have not squarely depended on adjudicating this most basic fact, the time has come. 	To
understand why, the Court first explains what a removal order is, and is not, as a matter of law;
and next, why the Court finds no such order exists for Abrego Garcia. Last, the Court discusses
why the absence of such order compels his release.
A. What is a Removal Order Under the INA
An order of removal is the vehicle by which the Executive branch retains the power
conferred by Congress under the INA to remove a noncitizen from the United States against his
will. See 8 U.S.C. § 1231(a)(1)(A). Such power is tantamount to an order of deportation, defined
as “an order ‘concluding that the [noncitizen] is deportable or ordering deportation.’” 	Riley v.
Bondi, 606 U.S. 259, 267 (2025) (quoting 8 U.S.C. § 1101(a)(47)(A)) (emphasis added). See also
Nasrallah v. Barr, 590 U.S. 573, 584 (2020) (citing 8 U.S.C. § 1101(a)(47)(A)) (holding that under
the INA, in the deportation context, a “final order of deportation is now defined as a final order
‘concluding that the [noncitizen] is deportable or ordering deportation.’”).
An order of removal must be “explicit” in its directive that a noncitizen is to be removed
to an identified country or countries. Kouambo v. Barr, 943 F.3d 205, 210 (4th Cir. 2019) (quoting
Matter of I-S- & C-S-, 24 I. & N. Dec. 432, 434 (BIA 2008)). 	Further, where, as here, “an
Immigration Judge issues a decision granting a [noncitizen’s] application for withholding of
removal . . . the decision must include an explicit order of removal.” Matter of I-S- & C-S-, 24 I.
& N. Dec. at 432. This is so because when a noncitizen receives protection from removal to an
identified country, the predicate removal order takes on special importance.
Case 8:25-cv-02780-PX Document 110 Filed 12/11/25 Page 18 of 31

19
As Judge Wilkinson ably explained in Kouambo v. Barr, the existence of a removal order
is fundamental to determining whether, and to where, a noncitizen may be removed:
First, as a matter of simple logic, ‘in order to withhold removal, there must
first be an order of removal that can be withheld’ . . . . Second, because a
[noncitizen] protected by an order of withholding may still be removed to
a willing third country, the IJ must issue a final order of removal to
authorize DHS to effect such a removal if a third country is identified.
943 F.3d at 210 (quoting Matter of I-S- & C-S-, 24 I. & N. Dec. at 433). Thus, an order of removal
must “identify a country, or countries in the alternative to which the [noncitizen’s] removal may
in the first instance be made, pursuant to the provisions of section 241(b) of the Act.” 8 C.F.R. §
1240.12(d).
B. No Order of Removal Exists for Abrego Garcia
No such order of removal exists for Abrego Garcia. 	When Abrego Garcia was first
wrongly expelled to El Salvador, the Court struggled to understand the legal authority for even
seizing him in the first place. 	At the first hearing in Abrego I, the Court inquired of Respondents’
counsel:
The Court: 	I want to ask, though, the very specific question, if there
is a final order of removal, what . . . document got this
process started? There is no warrant for his arrest by an
order of removal. There is no statement of probable
cause. There’s no charge. There’s no report that says that
anyone saw Mr. Abrego Garcia doing anything illegal or
criminal. So what is the actual document that gave these
officers the authority to start this process?
Counsel: 	That is not in the record, and the government has not put
that into the record. And that’s the best I can do.
Abrego I, ECF No. 33 at 21:11–22.
The Court continued to press counsel about the existence of a removal order and was told
plainly that none can be found:
Case 8:25-cv-02780-PX Document 110 Filed 12/11/25 Page 19 of 31

20
The Court: 	Okay. So if there’s a Title 8 removal order, there would
be an order of removal that’s being executed, and we
don’t have one for Mr. Abrego Garcia, right? . . . Do you
have that order? . . . Is it in the record?
Counsel: 	I do not have that order. It is not in the record.
Id. at 23:7–24:4.
Since that time, Respondents have never produced an order of removal despite Abrego
Garcia hinging much of his jurisdictional and legal arguments on its non-existence. ECF No. 1 ¶¶
68–69; ECF No. 32 at 10, 15–17, 27; ECF No. 87 at 11–12. Indeed, Respondents twice sponsored
the testimony of ICE officials whose job it is to effectuate removal orders, and who candidly
admitted to having never seen one for Abrego Garcia. See ECF No. 107 at 30:16–22 (testimony
of Cantú) (“Q: Based upon your many years of experience you described to us, you know what a
final order of removal looks like, right, sir? Cantú: I do. Q: And have you seen a final order of
removal in regard to Mr. Abrego Garcia? Cantú: I have not.”). See also Abrego I, ECF No. 234 at
46:6–12 (testimony of interim Assistant Director for ICE Removal Operations, Thomas Giles
(“Giles”)) (“Q: You have not seen the final order of removal, have you, sir? Giles: What do you
mean by that? 	Q: I mean, you have not seen a piece of paper that represents the final order of
removal vis-a-vis Mr. Abrego Garcia, correct? Giles: No, I have not.”).15 Based on this, the Court
concludes that no order of removal exists.
Respondents do not contend otherwise. 	Instead, they urge the Court to construe the
October 10 withholding decision as an implied order of removal, or one that exists “by operation
15 Additionally, the ICE Immigration detainer for Abrego Garcia dated June 6, 2025, and first made part of the record
in Abrego I, corroborates that no final order of removal exists. ECF No. 32-1. The detainer includes a preprinted
section articulating the “probable cause” for believing the “subject is a removable individual” because of either the
existence of a “final order of removal against the individual” or “[t]he pendency of ongoing removal proceedings
against the individual.” ECF No. 32-1 at 2. The ICE officer checked the box for “pendency” of proceedings even
though nothing was “pending” at the time. Id. More to the point, the ICE officer did not check that detention was
based on the existence of a final order of removal. Id.
Case 8:25-cv-02780-PX Document 110 Filed 12/11/25 Page 20 of 31

21
of law.” ECF No. 107 at 111:11–20. They essentially argue that because an IJ would not grant
withholding of removal absent a valid order of removal, then the Court can read into the
withholding decision the existence of a removal order. Id. While this argument may have some
intuitive appeal, it belies both the facts of this case and the long-established precedent which
commands against collapsing two legally distinct orders—removal and withholding of removal—
into one.
The October 10 withholding decision is unambiguously not an order of removal. It does
not “order” Abrego Garcia removed to any country or designate removal to alternative countries,
as required under the INA. 	See Nasrallah, 590 U.S. at 579 (an order of removal is “an order
‘concluding that the [noncitizen] is deportable or ordering deportation.’”) (citing 8 U.S.C. §
1101(a)(47)(A)). See also 8 C.F.R. § 1240.12(d). Nowhere in the October 10 withholding decision
does the IJ order Abrego Garcia removed to El Salvador or anywhere else.
Nor can the Court conclude legally that a removal order is “implicit” in the October 10
withholding decision, as Respondents urge. The Fourth Circuit has made clear, “when an IJ grants
withholding of removal, an explicit order of removal must be included in the decision,” that
identifies the country to which the noncitizen may be removed and alternative countries.
Kouambo, 943 F.3d at 210 (internal quotation marks and citation omitted). 	It is this explicit
designation that “authorizes DHS to effectuate such a removal if a third country is identified.” Id.
See also Matter of I-S- & C-S-, 24 I. & N. Dec. at 434 (“We find that the proceedings in this case
are unresolved and incomplete because the Immigration Judge found the respondents removable
and granted their application for withholding of removal but failed to order them removed.”); cf.
Bracic v. Holder, 603 F.3d 1027, 1032–33 (8th Cir. 2010). Because the October 10 withholding
Case 8:25-cv-02780-PX Document 110 Filed 12/11/25 Page 21 of 31

22
decision does not order Abrego Garcia removed to any country, it is simply not an order of
removal.
Moreover, to conclude as the Respondents suggest—that the withholding order is also the
order of removal—would contravene well established Supreme Court precedent directing
otherwise. Consider first Nasrallah v. Barr, 590 U.S. 573 (2020). There, the Court held that for
jurisdictional purposes under the INA, a final order of removal cannot “merge” with a withholding
order. Nasrallah, 590 U.S. at 583. The Nasrallah Court reasoned that withholding relief under
CAT cannot be construed as a final order of removal because the withholding order itself does not
conclude “the [noncitizen] is deportable or ordering deportation.” 	Id. at 579. 	Rather, a
withholding order “means only that, notwithstanding the order of removal, the noncitizen may not
be removed to the designated country of removal, at least until conditions change in that country.”
Id. at 582. For this reason, the Nasrallah Court concluded:
A CAT order may be reviewed together with the final order of removal.
But a CAT order is distinct from a final order of removal and does not
affect the validity of the final order of removal. The CAT order therefore
does not merge into the final order of removal for purposes of [the Court’s
jurisdictional limitation on the scope of judicial review].
Id. at 583.
The following year, the Court in Johnson v. Guzman Chavez, 594 U.S. 523 (2021) was
called to answer, among other questions, whether an order of removal becomes final at the point
the removal order issues, or later, when the noncitizen’s withholding-only proceedings conclude.
The Court held the former, because:
[R]emoval orders and withholding-only proceedings address two distinct
questions. As a result, they end in two separate orders, and the finality of
the order of removal does not depend in any way on the outcome of the
withholding-only proceedings.
Id. at 539.
Case 8:25-cv-02780-PX Document 110 Filed 12/11/25 Page 22 of 31

23
Last, just a few months ago, the Court in Riley v. Bondi, 606 U.S. 259 (2025) reaffirmed
that “the lessons taught by Nasrallah and Guzman Chavez are clear.” 	606 U.S. at 269. 	In
concluding that an order from Board of Immigration Appeals (“BIA”) that vacated the grant of
CAT relief was not a final order of removal, the Riley Court emphasized that the BIA order simply
did not “affect the validity of a previously issued order of removal or render that order non-final.”
Id. 	Because removal orders remain legally distinct from subsequent denials of relief, the final
removal order “does not depend” on the outcome of the withholding proceedings. 	Id. (quoting
Guzman Chavez, 594 U.S. at 539). 	This is so even though this construction invites procedural
difficulties in streamlined appellate review of both the removal order and the withholding decision.
Id. at 271–72.
Read 	together, 	Nasrallah, 	Guzman 	Chavez, 	and 	Riley 	foreclose the 	Respondents’
“implicit” removal-order theory. 	Each confirms that an order of removal retains separate legal
vitality. 	It must be an order “concluding that the [noncitizen] is deportable or ordering
deportation.” Nasrallah, 590 U.S. at 579 (quoting 8 U.S.C. § 1101(a)(47)(A)). 	See also Riley,
606 U.S. at 278. It must also identify the country or countries to which the noncitizen is ordered
removed. 8 C.F.R. § 1240.12(d). Absent an order to this effect, the Court cannot simply infer that
the withholding decision does the trick, as “removability and withholding relief are distinct.”
Guzman Chavez, 594 U.S. at 537.
For the same reasons, the Court also rejects Respondents’ entreaties to construe the
“procedural history” section of the October 10 withholding decision as an order of removal. ECF
No. 72 at 17. True, the procedural history section reflects that at some point earlier, Abrego Garcia
“through counsel . . . conceded removability as charged,” and that “[b]ased on the Respondent’s
admissions and concessions, the Court found his removability to be established by clear and
Case 8:25-cv-02780-PX Document 110 Filed 12/11/25 Page 23 of 31

24
convincing evidence as required by INA 240(c)(3).” ECF No. 1-1 at 2. But nowhere does the IJ
order Abrego Garcia removed to any country at all. See 8 C.F.R. § 1240.12(d) (a removal order
must “identify a country, or countries in the alternative, to which the [noncitizen’s] removal may
in the first instance be made, pursuant to the provisions of section 241(b) of the Act.”). See also
Guzman Chavez, 594 U.S. at 536. Thus, to credit this argument, the Court would have to collapse
two legally distinct orders into one. This the Court cannot do. Id. at 537.
Because no order of removal exists, the Court turns next to why detention in the absence
of such an order cannot continue.16
C. Continued Detention Without a Removal Order Violates the INA and
Due Process
The absence of a removal order raises an intractable problem for Respondents. They took
Abrego Garcia into ICE custody with the singular purpose of removing him to a third country
pursuant to 8 U.S.C. § 1231. 	See ECF No. 1-5 (notice of removal to Uganda); ECF No. 27-3
(notice of removal to Eswatini); ECF No. 52 at 32:18–19 (confirming notice of removal to Ghana
sent “prematurely” to Abrego Garcia’s counsel); ECF No. 56 (notice of removal to Liberia). See
also ECF No. 28 at 18 (Respondents arguing their third-country removal procedures are consistent
with due process); ECF No. 72 at 25 (Respondents arguing Abrego Garcia “is subject to detention
under 8 U.S.C. § 1231 as a result of his final order of removal”) (emphasis added).
16 Given the absence of a removal order, the Court easily rejects Respondents’ argument that the Petition must be
dismissed because Abrego Garcia is a member of the putative class in D.V.D. v. DHS, 778 F. Supp. 3d 355 (D. Mass.
2025). ECF No. 72 at 15. The D.V.D. class is defined as noncitizens “subject to final orders of removal, allegedly at
imminent risk of deportation to countries other than those authorized by their respective orders.” D.V.D. v. DHS, 778
F. Supp. 3d 355, 368 (D. Mass.), opinion clarified, No. CV 25-10676-BEM, 2025 WL 1323697 (D. Mass. May 7,
2025), and opinion clarified, No. CV 25-10676-BEM, 2025 WL 1453640 (D. Mass. May 21, 2025), reconsideration
denied sub nom. D.V.D v. DHS, 786 F. Supp. 3d 223 (D. Mass. 2025). Abrego Garcia, however, does not have a final
order of removal and thus, falls outside the class. Moreover, even if Abrego Garcia could be considered part of the
class, the Court disagrees this Petition must be dismissed as impermissible claim splitting because membership in an
opt-out class remains a recognized exception to the claim-splitting rule. See Gunnells v. Healthplan Servs., Inc., 348
F.3d 417, 432 (4th Cir. 2003) (quoting 18 M OORE ’ S FEDERAL PRACTICE § 131.40[3][e][iii] (2002)) (citing Restatement
(Second) of Judgments § 26(1)(c) (1982)).
Case 8:25-cv-02780-PX Document 110 Filed 12/11/25 Page 24 of 31

25
Section 1231, however, only permits such third-country removal proceedings upon the
issuance of a final order of removal. 	Entitled “Detention and removal of [noncitizens] ordered
removed,” 8 U.S.C. § 1231 authorizes detention after the noncitizen “is ordered removed” and
enters the “removal period.” § 1231(a)(1)(A). Section 1231(a)(2)(A) further articulates the terms
of release or detention during the removal period, and § 1231(b)(1)–(2) discusses the selection of
alternate countries in the event the noncitizen is granted relief from removal, or where the
designated country of removal is unwilling to accept him. See also Guzman Chavez, 594 U.S. at
542–43. 	Thus, without a final order of removal, § 1231 provides no lawful basis to detain and
remove the noncitizen.
Respondents do not disagree. 	Abrego I, ECF No. 217 at 63:11–16 (Ernesto Molina,
counsel for Respondents, explaining that ICE has statutory authority under 8 U.S.C. § 1231 to take
into custody noncitizens subject to a final order of removal); Abrego I, ECF No. 235 at 86:6–17
(Sarmad Khojasteh, counsel for Respondents in Abrego I, explaining that the authority to remove
Abrego Garcia flows from the final order of removal). Nor have they articulated any other basis
to hold Abrego Garcia apart from § 1231. Accordingly, because Respondents continue to detain
Abrego Garcia solely for the purpose of effectuating third-country removal under § 1231 but lack
any authority to effectuate such removal absent a removal order, his continued detention must end.
D. Release is Further Compelled Under Zadvydas v. Davis
Alternatively, continued detention appears constitutionally infirm under Zadvydas v.
Davis, 533 U.S. 678 (2001). Although Zadvydas is an imperfect fit precisely because Respondents
have no lawful authority to hold Abrego Garcia under 8 U.S.C. § 1231, its teachings are
nonetheless instructive. There, the Supreme Court was called upon to set the due process limits
of prolonged detention under § 1231. 	Or more particularly, “whether this post-removal-period
Case 8:25-cv-02780-PX Document 110 Filed 12/11/25 Page 25 of 31

26
statute authorizes the Attorney General to detain a removable [noncitizen] indefinitely beyond the
removal period or only for a period reasonably necessary to secure the [noncitizen’s] removal” to
a third country. Zadvydas, 533 U.S. at 682 (emphasis in original).
The Zadvydas Court concluded that to read § 1231 as permitting “indefinite detention”
would “raise serious constitutional concern,” that must be avoided by also reading an implicit
reasonable time limitation on such detention. 	533 U.S. at 682. 	Thus, the Zadvydas Court
announced a presumptive six-month period of post-removal detention as sufficient to accord
Respondents time to secure a suitable third country without running afoul of the noncitizen’s Fifth
Amendment due process rights. Id. at 701.
In so holding, the Zadvydas Court grounded its decision in three fundamental principles of
special relevance to Abrego Garcia. First, as the Court explained, Respondents can only detain a
noncitizen pursuant to the statutory authority of the INA, and with a purpose to effectuate lawful
removal. Zadvydas, 533 U.S. at 683, 688–89. Although this principle may seem self-evident, it
bears emphasizing for Abrego Garcia, as he has been held without a removal order, and thus
without lawful authority.
Second, detention to effectuate third-country removal can only be for the period
“reasonably necessary” to secure such removal. Zadvydas, 533 U.S. at 689. The presumptive six-
month period announced in Zadvydas provides an important limitation on § 1231 to avoid
indefinite detention. 	But it is a presumption which can be rebutted where the petitioner
demonstrates that removal is not reasonably foreseeable. See, e.g., Cruz Medina v. Noem, 794 F.
Supp. 3d 365, 379 (D. Md. 2025). As Zadvydas emphasized, a noncitizen may be held only until
“it has been determined that there is no significant likelihood of removal in the reasonably
foreseeable future.” 	533 U.S. at 701. 	See Jennings, 583 U.S. at 299 (“[I]f the [noncitizen]
Case 8:25-cv-02780-PX Document 110 Filed 12/11/25 Page 26 of 31

27
‘provides good reason to believe that there is no significant likelihood of removal in the reasonably
foreseeable future,’ the Government must either rebut that showing or release the [noncitizen].”)
(quoting Zadvydas, 533 U.S. at 701).
Third, the Zadvydas Court reaffirmed that ICE detention exists for the “basic purpose” of
securing third-country removal. Zadvydas, 533 U.S. at 699. See also id. at 697 (§ 1231 has “as
its basic purpose effectuating [a noncitizen’s] removal.”); cf. Demore v. Kim, 538 U.S. 510, 527
(2003) (where removal was “no longer practically attainable,” “detention there did not serve its
purported immigration purpose”) (quoting Zadvydas, 533 U.S. at 690); Clark v Martinez, 543 U.S.
371, 384 (2005) (§ 1231 “should be read . . . to authorize detention only for a period consistent
with the purpose of effectuating removal.”). Respondents are not to hold the noncitizen based on
whim, caprice, or like motive. 	Zadvydas, 533 U.S. at 718 (“As persons within our jurisdiction,
[noncitizens] are entitled to the protection of the Due Process Clause” which “includes protection
against unlawful or arbitrary personal restraint or detention.”) and at 721 (“[B]oth removable and
inadmissible [noncitizens] are entitled to be free from detention that is arbitrary or capricious.”)
(Kennedy, J., dissenting). Nor can detention be used as punishment. “The proceedings at issue
here are civil, not criminal,” and so must be “nonpunitive in purpose and effect.” Zadvydas, 533
U.S. at 690.
With these principles of Zadvydas as guidance, the Court turns to Abrego Garcia’s
continued detention. 	First, because Respondents have no statutory authority to remove Abrego
Garcia to a third country absent a removal order, his removal cannot be considered reasonably
foreseeable, imminent, or consistent with due process. Although Respondents may eventually get
it right, they have not as of today. Thus, Abrego Garcia’s detention for the stated purpose of third-
country removal cannot continue.
Case 8:25-cv-02780-PX Document 110 Filed 12/11/25 Page 27 of 31

28
Second, and equally troubling, the circumstances of Abrego Garcia’s detention since he
was released from criminal custody cannot be squared with the “basic purpose” of holding him to
effectuate removal. Zadvydas, 533 U.S. at 697. That is, even if Abrego Garcia could have been
lawfully removed to a third country, Respondents do not appear to have held him to fulfill that
purpose. For if they had wished to remove him, they certainly could have as early as August 21,
2025, to Costa Rica. 	And even if the Court accords Respondents a measure of deference in
exercising their discretion to favor another country, “discretion” cannot explain what happened
next. Cf. Zadvydas, 533 U.S. at 696 (recognizing propriety of “habeas court’s efforts to determine
the likelihood of repatriation, if handled with appropriate sensitivity . . . .”).
Respondents serially “notified” Abrego Garcia—while he sat in ICE custody—of his
expulsion to Uganda, then Eswatini, then Ghana; but none of these countries were ever viable
options, and at least two had not even been asked to take Abrego Garcia before Respondents
claimed supposed removal to each. See ECF No. 52 at 28:10–13 (Schultz confirming the “United
States has not had a discussion with Eswatini regarding Abrego Garcia”). See also ECF No. 52 at
32:18–19 (Schultz stating the notice of removal identifying Ghana was “prematurely sent” to
Abrego Garcia).
At the same time, Respondents did not take any steps to remove Abrego Garcia to the
country which had offered to take him, Costa Rica. This inexplicable reluctance seemed at odds
with continued detention for purposes of third-country removal. 	So the Court asked repeatedly
during oral arguments to address the disconnect. 	ECF No. 48 at 37:24–38:17; ECF No. 52 at
205:11–207:13; ECF No. 107 at 124:1–125:12; and twice compelled testimony to that effect, ECF
Nos. 47 & 90. These orders were ignored without justification.
Case 8:25-cv-02780-PX Document 110 Filed 12/11/25 Page 28 of 31

29
Respondents instead found a fourth African country, Liberia. This time, when the Court
sought information about Liberia and Costa Rica so to fairly assess the validity of Abrego Garcia’s
claims, Respondents did not just stonewall. 	They affirmatively misled the tribunal. 	They
announced that Liberia is the only viable removal option because Costa Rica “does not wish to
receive him,” ECF No. 85 at 9, and that Costa Rica will no longer “accept the transfer” of him,
ECF No. 75-6 ¶ 5; ECF No. 85 at 14.
But Costa Rica had never wavered in its commitment to receive Abrego Garcia, just as
Abrego Garcia never wavered in his commitment to resettle there. See ECF No. 108 at 1; Maria
Sacchetti, Costa Rica says it would accept Kilmar Abrego García, contradicting U.S., WASH.
POST 	(Nov. 	21, 	2025), 	https://www.washingtonpost.com/immigration/2025/11/21/kilmar-
trumpdeport-costarica/. 	See also Laura Romero, Costa Rican official says country willing to
accept Abrego Garcia, contradicting Trump administration officials, ABC NEWS (Nov. 21,
2025), 	https://abcnews.go.com/International/costa-rican-official-country-accept-abrego-garcia-
contradicting/story?id=127775855. 	This 	evidently 	remained 	an 	inconvenient 	truth 	for
Respondents. But more to the point, Respondents’ persistent refusal to acknowledge Costa Rica
as a viable removal option, their threats to send Abrego Garcia to African countries that never
agreed to take him, and their misrepresentation to the Court that Liberia is now the only country
available to Abrego Garcia, all reflect that whatever purpose was behind his detention, it was not
for the “basic purpose” of timely third-country removal. Zadvydas, 533 U.S. at 697.
E. Abrego Garcia’s Due Process Challenge to Removal Procedures
Abrego Garcia separately challenges the lack of due process associated with Respondents’
efforts to remove him to Liberia. 	ECF No. 71. 	He particularly presses that the Respondents’
summary third-country removal policy articulated in the DHS Memorandum dated March 30,
Case 8:25-cv-02780-PX Document 110 Filed 12/11/25 Page 29 of 31

30
2025, does not provide meaningful review of his fear-based claims of persecution, torture or
refoulment. Id. at 18 (citing Trump v. J.G.G., 604 U.S. 670, 673 (2025)) (quoting Reno v. Flores,
507 U.S. 292, 306 (1993)) (“It is well established that the Fifth Amendment entitles [noncitizens]
to due process of law in the context of removal proceedings.”) (internal quotation marks omitted).
Given Liberia’s nebulous offer of “temporary” status, and Respondents’ history of erroneous
removal to El Salvador, this challenge may very well have merit. See Cruz Medina, No. ABA-25-
CV-1768, 2025 WL 2841488, at *10 (D. Md. Oct. 7, 2025) (granting injunctive relief directing
respondents to accord petitioner meaningful judicial review of fear based claims concerning
intended third-country removal); Sagastizado v. Noem, No. 5:25-CV-00104, 2025 WL 2957002,
at *16 (S.D. Tex. Oct. 2, 2025) (same); Nguyen, 2025 WL 2419288, at *28–29 (granting immediate
release and enjoining removal absent meaningful opportunity to be heard in reopened removal
proceedings). 	The Court, however, need not reach the claim because the absence of a removal
order precludes Respondents from removing Abrego Garcia at this juncture.
V. 	Conclusion
As before, Abrego Garcia’s case demands judicial intervention to ensure that Respondents
choose constitutionally permissible means of implementing the INA. Zadvydas, 533 U.S. at 695.
Because Abrego Garcia has been held in ICE detention to effectuate third-country removal absent
a lawful removal order, his requested relief is proper. Separately, Respondents’ conduct over the
past months belie that his detention has been for the basic purpose of effectuating removal, lending
further support that Abrego Garcia should be held no longer.
Case 8:25-cv-02780-PX Document 110 Filed 12/11/25 Page 30 of 31

31
The Court orders Respondents to release Abrego Garcia from ICE custody immediately.
Thereafter, he will receive instruction from the United States Pretrial Services Office as to
installation on the release conditions previously imposed in his criminal case.17
A separate order follows.
December 11, 2025 	/s/
Date 	PAULA XINIS
United States District Judge
17 Pursuant to the Bail Reform Act, 18 U.S.C. § 3142(c)(1)(B), the criminal court has imposed on Abrego Garcia the
restrictive conditions of home detention with electronic monitoring, third-party custodianship, a residence
requirement, and other programming to reasonably assure Abrego Garcia’s appearance in court and the safety of the
community. See Tennessee Criminal Matter, ECF No. 112.
Case 8:25-cv-02780-PX Document 110 Filed 12/11/25 Page 31 of 31