In response U.S. Department of Justice (DOJ) motion arguing District Court Judge Paula Xinis must dissolve her temporary restraining order blocking Immigration and Customs Enforcement (ICE) from detaining Kilmar Abrego Garcia following the corrections to his final deportation order made last week, Abrego Garcia’s immigration attorneys on Wednesday said their client is ineligible for detention because the 30-day window to appeal the immigration court’s ruling expired in 2019.
Confirming Abrego Garcia “disputes the validity” of the final deportation order amended by Chief Immigration Judge Philip Taylor, the filing said the court should nonetheless, “accept the order for what it purports to be,” because it does not change Xinis’ December 11 rulings requiring his release and blocking further ICE detention.
Xinis, who was appointed by former President Barack Obama, ruled that the time Abrego Garcia spent in federal custody from 2019-2025 exceeded the six-month maximum, but also that his 2019 immigration case ended without a final deportation order because the final ruling lacked the proper declaration that Abrego Garcia was ordered deported to El Salvador.
By arguing that the window to appeal expired in 2019, the latest filing by Abrego Garcia appears to contradict the copy of the December 11 communication from the immigration court included by his attorneys in an earlier submission to Xinis.
It revealed that Taylor corrected what the court described as two scrivener’s errors in the 2019 final deportation order, changing the ruling to formally declare that Abrego Garcia was ordered deported to El Salvador but withheld from removal due to gang concerns.
With these two corrections complete, Taylor and the DOJ have separately stated that the 30-day appeal window for Abrego Garcia restarted on December 11.
A communication from the DOJ Executive Office for Immigration Review informed Abrego Garcia and his attorneys, “This decision is final unless an appeal is filed with the Board of Immigration Appeals within 30 calendar days of the date of the mailing of this written decision,” and included the forms necessary to proceed with an appeal.
It additionally stated that he must file such an appeal by January 12, 2026.
The DOJ attorneys representing DHS in the lawsuits brought by Abrego Garcia argued in their request to Xinis that the correction of the scrivener’s errors not only restarted the countdown, but also justifies continued ICE detention while the appeal process unfolds:
As Petitioner acknowledges, that order is not yet final and cannot currently be executed; by its terms, it preserves Petitioner’s right to appeal within 30 days to the Board of Immigration Appeals (BIA). If Petitioner has any objection to the new order, the BIA is the place to raise those arguments in the first instance; following a BIA appeal, Petitioner can also petition for review in the Court of Appeals. But in the meantime, Petitioner is subject to continued detention while his (renewed) immigration proceedings play out, and this Court has no jurisdiction to indulge a premature collateral attack on the new removal order.”
Despite his attorneys now claiming that Abrego Garcia is beyond the 30-day window, they sought to reopen his immigration case earlier this year. Taylor denied that request in October, but his attorneys told Xinis on November 20 they had already appealed the immigration judge’s decision to the BIA.
Xinis called a hearing for Monday to for arguments over the DOJ request to dissolve her order blocking Abrego Garcia’s future detention. The alleged human smuggler was released following her December 11 order, and has reportedly returned to Maryland. His federal trial in Tennessee is scheduled to begin on January 27.
Originally deported to El Salvador in March amid controversy, Abrego Garcia was returned to the United States after the DOJ unsealed its human smuggling indictment in June.
The indictment came weeks after The Tennessee Star reported that Abrego Garcia was stopped by the Tennessee Highway Patrol (THP) in November 2022, and after a spokesman for THP told The Star the “Biden-era FBI” instructed troopers to release him despite a DHS document showing troopers suspected human trafficking. The Star was recently recognized for its reporting on Abrego Garcia with the Dao Prize for Best Local Journalism.
Abrego Garica has pleaded not guilty to the indictment.
– – –
Tom Pappert is a 2025 recipient of the Dao Prize and the lead reporter for The Tennessee Star. He also reports for the Star News Network. Follow Tom on X. Email tips to [email protected]. Â
The legal team representing Garcia will try any maneuver to obstruct his eventual deportation. While the firm is no doubt paid through contributions, the prosecution and all court expenses are paid for by the public. It is long overdue ending this nonsense and waste of public funds. He is here illegally and should be deported. Where he goes is up to the country willing to accept him, he has, too many times rejected one country or another believing his life would be endangered. That doesn’t make sense, he had never been in those countries. How or why should he feel endangered? This is simply a task of obstruction.