On the same day one court concluded that no removal order existed for a Maryland resident in immigration custody, another court quietly signed one and backdated it several years. That unresolved conflict now sits at the center of a fight over whether the government can lock him up again.
A Removal Order That Both Exists And Does Not
According to the reporting and court records described by Law&Crime, an immigration judge issued a written decision in December 2025 that stated Abrego Garcia was “ordered removed” from the United States. That decision was dated December 11, 2025, but made effective as of October 10, 2019, through a nunc pro tunc designation. In practical terms, the order purported to reach back in time and treat 2019 as the removal date.
On that same date, U.S. District Judge Paula Xinis, who is presiding over Abrego Garcia’s separate federal habeas case in Maryland, wrote that “no such [removal] order exists for Abrego Garcia” and that federal defendants “never produced an order of removal despite Abrego Garcia hinging much of his jurisdictional and legal arguments on its non-existence,” as quoted by Law&Crime.
Judge Xinis acknowledged that Immigration and Customs Enforcement (ICE) had referenced an order in its own paperwork. She noted that an ICE Order of Supervision claimed he was “ordered removed” on October 10, 2019, and appeared to rely on the immigration judge’s fresh decision, which was made effective as of that same date. Her ruling, quoted in the article, described the immigration judge’s decision as an “order” that was issued the prior night and made effective October 10, 2019.
Judge Xinis explicitly said the federal court would not decide the validity of that newly discovered immigration order at that time. That gap between what the immigration court wrote on paper and what the federal judge recognized as legally operative has since become a key leverage point for Abrego Garcia’s legal team.
The Statutes The Government Wants To Use
In late 2025, an ICE field officer filed a declaration that identified several provisions of federal immigration law that, in the government’s view, could justify detaining Abrego Garcia again. Those provisions included 8 U.S.C. 1225(b)(2), which governs the detention of certain noncitizens seeking admission to the United States, and 8 U.S.C. 1226(a), which governs arrests and detention pending a decision on removal ( 1225) ( 1226).
One of those statutes, quoted in the filing and reproduced by Law&Crime, provides that “[a]n alien may be arrested and detained pending a decision on whether the alien is to be removed.” The government argued that these provisions would continue to govern his custody “until removal proceedings have concluded.”
Abrego Garcia’s attorneys read the same text differently. In their telling, the operative word in that statute is “pending.” They argue that detention under those provisions is available only while there is an open question about what will happen in removal proceedings. Once those proceedings are fully resolved and a final removal order exists, they contend, the government loses those particular detention authorities.
Why He Stopped Challenging His Own Deportation
In a seven-page filing submitted to Judge Xinis and described in detail by Law&Crime, Abrego Garcia’s counsel announced that he would not appeal the immigration court’s December 11 decision. That decision had ordered him removed and simultaneously backdated the effective date by more than six years.
The new filing states: “Abrego Garcia has decided to not appeal the immigration judge’s December 11 order, and he hereby waives his right to do so. As a result, that order is final, there are no ongoing removal proceedings, and thus neither 1225(b)(2) nor 1226(a) can authorize detention. While Abrego Garcia has serious concerns about the validity of the immigration judge’s December 11 order, he waives his right to challenge that order to eliminate any doubt that 1225(b)(2) or 1226(a) could apply here.”
By giving up his right to challenge the immigration judge’s decision, his lawyers say they are closing the window during which the government can credibly claim that removal proceedings are still underway. From their perspective, that move strips ICE of the statutory grounds it cited for putting him back in a cell.
At the same time, the filing makes clear that waiver is tactical rather than a concession that the underlying immigration decision is legally sound. The lawyers emphasize that he still has “serious concerns” about how and when the immigration court issued the order and about the nunc pro tunc backdating.
How Long Can Immigration Detention Last?
Beyond the fight over what it means for proceedings to be “pending,” Abrego Garcia’s team is also invoking constitutional limits on how long someone can be held when their removal is not practically achievable.
They point to the fact that he has already spent six months in custody after the purported removal order. Their filing quotes directly from the Supreme Court’s 2001 decision in Zadvydas v. Davis, which held that immigration detention after a removal order is subject to due process limits.
In that case, the Court concluded that, once a person shows “good reason to believe that there is no significant likelihood of removal in the reasonably foreseeable future,” the burden shifts to the government to prove otherwise. If the government cannot do so, continued detention becomes unlawful. The principle is quoted in Abrego Garcia’s filing as follows: “If, after six months of post-removal-order detention, a petitioner ‘provides good reason to believe that there is no significant likelihood of removal in the reasonably foreseeable future,’ then immigration detention becomes unlawful unless the Government proves that removal is reasonably foreseeable.”
That rule does not bar all detention after six months. It does require courts to take a close look at whether actual removal is realistically on the horizon for a particular person. Abrego Garcia’s lawyers argue that, given the government’s shifting and inconsistent positions on where he could be sent, his case fits squarely into the category of people whom Zadvydas protects from prolonged confinement.
Costa Rica, African Countries And ‘Removable-But-Unremovable Limbo’
For removal to be carried out, a country must be both legally and practically available to receive the person. Here, according to Law&Crime’s review of the filings, the Trump administration has identified several African nations, including Uganda, Eswatini, Ghana, and Liberia, as potential destinations for Abrego Garcia.
Abrego Garcia has expressed a willingness to depart the United States for Costa Rica instead, and Costa Rican authorities have signaled that they are prepared to accept him as a refugee, the reporting states. Federal lawyers have argued in court that Costa Rica effectively removed itself from consideration. Judge Xinis has not accepted that explanation.
On that point, the district judge described the government’s in-court statements about Costa Rica as “affirmatively” misleading the court through “misrepresentation,” according to the cited opinion. The new filing seizes on that history to argue that the government has no realistic plan to remove him anywhere.
In a passage quoted at length by Law&Crime, the motion states: “Removal is no more foreseeable today than it was when the Court granted Abrego Garcia’s habeas petition. Now, as then, there is no viable third country other than Costa Rica. So long as the Government continues its ‘inexplicable reluctance’ to remove Abrego Garcia to Costa Rica, he remains in ‘removable-but-unremovable limbo,’ With no viable removal country, detention now would not serve any legitimate purpose, but amount to nothing more than detention for detention’s sake. Thus, even if there were a statutory justification for detention under 1225 or 1226, detaining Abrego Garcia now ‘cannot be squared with the ‘basic purpose’ of holding him to effectuate removal.'”
The motion continues: “To the contrary, such detention untethered from any lawful purpose, would be punitive and violate due process.”
Judge Xinis has already granted Abrego Garcia’s habeas petition once, according to Law&Crime, limiting the ways in which the government may attempt to deport him. Despite that, ICE has continued to explore statutory bases to re-detain him, while the question of which country will actually receive him remains unresolved.
ICE officials say they have no plans to detain Kilmar Abrego Garcia again as long as a judge’s order banning it remains. The agency didn’t make clear if they would detain Abrego Garcia if the order was lifted.
MORE: https://t.co/EBpN1n7HJG pic.twitter.com/eyV951JJqD
— NewsNation (@NewsNation) December 31, 2025
An Order On Paper, A Battle In Practice
Both sides now ground their arguments in the same cluster of statutes, court precedents, and disputed facts. The government maintains that immigration law allows it to hold Abrego Garcia while it pursues removal through the channels it has chosen. His lawyers respond that, with proceedings concluded, no country lined up other than Costa Rica, and six months of detention already behind him, further custody would be exactly what the Supreme Court warned against.
The federal court in Maryland will have to decide what weight to give an immigration order that was signed years after it took effect, how to read the word “pending” in detention statutes, and whether the government’s handling of potential destination countries makes his removal genuinely foreseeable. For now, the core question remains whether a man described as “removable-but-unremovable” can be jailed again on the theory that his deportation is just around the corner.
