The Situation: One Judicial Opinion That Sums Up Everything

The Situation on Friday contemplated the deposition testimony of former Special Counsel Jack Smith.

Today, let’s reach back to a nearly-month-old opinion by Judge Paula Xinis of the U.S. District Court for the District of Maryland.

The opinion ordered the release of one Kilmar Abrego Garcia—the El Salvadoran man who was wrongfully removed from the United States and dumped in the notorious CECOT prison in his home country, then brought back under indictment in Tennessee, and whose civil litigation Judge Xinis has been supervising in Maryland since last spring. 

The opinion got a flurry of attention when Judge Xinis issued it—both because it finally caused Abrego to walk free and because of the extraordinary evidentiary record it cited of government lies and misconduct in the case. 

It didn’t get enough attention. 

The opinion is worth a close read a month later. 

The opinion brings together, in a brief 31 pages, a number of distinct themes that have presented themselves in litigation—civil and criminal—involving Trump administration actions. 

At various times over the past year, these litigations have underscored the lawlessness of administration action; they have highlighted the targeting of political foes for vindictive and retributive reasons; they have featured defiance of court orders; and they have featured outright lying both by lawyers and by officials of client agencies to the courts.

Rarely, however, have all of these themes come together with such an unambiguous evidentiary record, fleshed out with such an economy of words. 

Consider first Judge Xinis’s core ruling—which is that the government has held Abrego, and deported him to foreign detention in a notorious prison, without any valid order of removal. “Respondents have never produced an order of removal despite Abrego Garcia hinging much of his jurisdictional and legal arguments on its non-existence,” she writes. “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. Based on this, the Court concludes that no order of removal exists.”

Pause over this for a moment.

Abrego was picked up on the street, deported to a foreign prison, returned and then held in immigration detention for months all without a valid order of removal. This is not a technicality. The order of removal is the legal basis not merely for the deportation of a person from the United States but for his detention antecedent to that removal.

The government does not argue in response that a valid removal order exists. “Instead,” the judge summarizes, “they urge the Court to construe the [immigration judge’s] withholding [of removal] decision as an implied order of removal…”

But an order granting withholding of removal just is not an order of removal. It is an order forbidding removal to a particular country. Construing a withholding of removal as impliedly ordering removal is kind of like construing a stay of execution to impliedly impose the death sentence it temporarily halts.

Pause next over the vindictive nature of the detention and the attempts to remove Abrego to any number of African countries with which he has no relationship when Costa Rica has long been willing to take him. 

Judge Xinis notes that the government “acknowledged that the only legitimate ground to hold Abrego Garcia was to effectuate removal.” And removal to a country other than El Salvador has been possible at least since this past summer—when Costa Rica made clear it would welcome him. For his part, Abrego has expressed willingness to go to Costa Rica, meaning that if the goal were really removal, that could happen any time.

But the government doesn’t just want to remove Abrego. It apparently wants to remove him to a country where he doesn’t speak the language and with which he has no cultural connection. And it is willing to forgo quick removal to a country in which he is willing to resettle by way of accomplishing this punitive goal. The government in Abrego’s criminal case had offered a plea deal in which Abrego would get deported to Costa Rica in exchange for a guilty plea—a step it took with Uganda hanging over his head. But Abrego turned that down. And apparently, the government doesn’t want Abrego to get to go to Costa Rica without first exacting its pound of flesh.

People tend to think of the Trump administration’s abuse of the justice system to punish political enemies as focused on high profile big fish—people like former FBI Director James Comey and New York Attorney General Letitia James. And that’s certainly one side of this particular coin. But the other side is people like Abrego, whose case embarrassed the president and featured prominently in an Oval Office meeting with a foreign head of state. The administration is litigating tenaciously not merely to deport Abrego, not merely to prosecute him, but to use his deportation to punish him for not pleading and for becoming an irritant in the administration’s grand plans for mass deportation. That’s not what deportation is for. And it’s not what deportation detention is for either.

The contortions through which the government went to avoid sending Abrego to Costa Rica take up a substantial portion of the opinion to elucidate. Some highlights:

• “Abrego Garcia next appeared at the Baltimore ICE Field Office as directed on August 25, 2025. . . . 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.” But “[i]n 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.” An official later testified that the government “had asked Uganda to take Abrego Garcia, but it ‘ultimately said no.’”
• “On September 5, 2025, Respondents notified Abrego Garcia’s counsel that they now would remove him to the South African country of Eswatini…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.” It later came out at a hearing that the government “had not formally asked Eswatini to accept Abrego Garcia until the Wednesday night before the Friday evidentiary hearing.”
• “[T]he night before the hearing, Respondents notified Abrego Garcia’s counsel that he would now be removed to yet a third African country, Ghana. . . . 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.’”
• After the evidentiary hearing but “before the Court could formally rule, [the government] notified Abrego Garcia and the Court on October 24, 2025, that now they intended to remove him to yet a fourth African country, Liberia. . . . Liberia evidently agreed to accept Abrego Garcia on a ‘strictly humanitarian’ and ‘temporary’ basis, with promises to not to persecute, torture or refoul him.” The government “justified removing Abrego Garcia to Liberia because it was ‘the only state’ willing to accept him. . . . 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.

As Judge Xinis puts it, “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.” The judge continues:

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.. . . and twice compelled testimony to that effect. . . .  These orders were ignored without justification.

The government’s statement about Costa Rica brings us to yet another recurrent theme in Trump-era litigation this opinion highlights—the one in which the government simply lies to courts.

Because as Judge Xinis makes clear, this statement was a bald-faced lie—or, as the judge puts it, “when the Court sought information about Liberia and Costa Rica so [as] to fairly assess the validity of Abrego Garcia’s claims, Respondents did not just stonewall. They affirmatively misled the tribunal.” In fact, she writes, “Costa Rica had never wavered in its commitment to receive Abrego Garcia, just as Abrego Garcia never wavered in his commitment to resettle there.” Indeed, she continues, “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.” 

And when Judge Xinis notes that her orders requiring explanations were “ignored without justification,” she is bringing out a fourth major theme that has shown up again and again in these cases: non-compliance with court orders. This is a matter somewhat different from, but closely related to, the theme of candor before the tribunal.

At various times, because she had lost trust in the government’s factual representations, Judge Xinis ordered the government to produce a witness prepared to testify as to the underlying facts of the diplomatic negotiations. And at various times, she notes, these orders were not followed. On page 9, for example, she writes that:

Respondents produced one witness, Deputy Assistant Director of ICE Enforcement and Removal Operations, John Schultz (“Schultz”). . . . . 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, and he had “no knowledge” about whether the Respondents had done anything to commence removal proceedings to Costa Rica.

Later on, during the Liberia episode, the government produced another witness:

At the hearing on November 20, it became evident that once again, Respondents defied this Court’s orders. They simply refused to prepare and produce a witness with knowledge to testify in any meaningful way. [The witness produced] candidly admitted, for example, that he had no prior involvement in Abrego Garcia’s case and spent approximately five minutes preparing to testify. [He] also shared that none of Respondents’ attorneys had discussed this Court’s order with him or showed him its contents. . . . Nor did [he] understand the purpose of his testimony. Then at the hearing, Respondents showcased [his] ignorance about the content of his Declaration pertaining to Costa Rica. As the pointed questions of Respondents’ counsel made clear, [his] lack of knowledge was planned and purposeful. 

It is rare that a single judicial opinion condenses so many of the key pathologies of the government’s approach to litigation in a single place in a readable format without particular intrusion of complex law or even factual dispute.

Judge Xinis has been among the most skillful judges in managing the government’s mendacious approach to litigation over the past year. She has been careful. She has been tough. She has been surefooted. And this opinion should not have gotten lost in the holiday cheer and been a one-day story. It’s an important statement that likely won’t be her last word on the subjects it addresses.

The Situation continues tomorrow.