Inset: Kilmar Abrego Garcia in an undated photo (CASA). Background: President Donald Trump speaks with reporters in the Oval Office at the White House, Tuesday, Feb. 11, 2025, in Washington, D.C. (Photo/Alex Brandon).
Kilmar Abrego Garcia will remain out of the clutches of Immigration and Customs Enforcement (ICE), a federal judge in Maryland has ruled.
In a 10-page memorandum order on Tuesday, U.S. District Judge Paula Xinis, a Barack Obama appointee, maintained the status quo in the case that has long served as both a symbolic and real focal point of the second Trump administration's immigration policy.
Abrego Garcia has been free from ICE detention since Dec. 11, 2025, after Xinis issued a writ of habeas corpus for the father of three. The court granted relief on the basis that he was being held "without lawful authority" and because "no order of removal exists."
Now, as things have formally changed, they will stay the same.
As it turns out, there was, in fact, a removal order for Abrego Garcia — issued in October 2019. But this order was left off the same record which withheld, or barred, him from being deported to El Salvador.
Abrego Garcia literally flew into the popular consciousness after he was one of many men aboard an illegal summary deportation flight to a prison notorious for torture in El Salvador in March 2025. Attorneys quickly pointed out his deportation violated multiple court orders — both specific to him and general to the flight in question.
The 2019 removal, however, was added into the withholding record by Immigration Judge Phillip Taylor "hours after" Xinis granted Abrego Garcia's habeas petition — evidently to correct a "scrivener's error," which is the result of "a minor mistake or inadvertence and not one that occurs from judicial reasoning or determination."
In an effort to remedy the error, the immigration judge issued a "nunc pro tunc" order, which is Latin for "now for then."
Xinis explains the upshot of such an order:
A nunc pro tunc order…represents a narrow, equitable remedy, rarely invoked to make historic court records "reflect what the . . . court actually intended to do at an earlier date;" that is, to make "the record speak the truth." Accordingly, a legitimate nunc pro tunc order must be given the "same legal force and effect as if done at [sic] time when it ought to have been done." Whatever the corrective action is, it must be entered "as of a time when it should or might have been entered up."
The U.S. Department of Justice, for its part, argued the backdated nunc pro tunc order equated to a new removal decision under which the government could "re-detain" Abrego Garcia.
Attorneys for Abrego Garcia, oppositely, argued the relevant statute actually precluded his "re-detention" because the backdated order meant there was no longer any removal order "pending."
"Abrego Garcia has decided to not appeal the immigration judge's December 11 order, and he hereby waives his right to do so," a January filing reads. "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."
In her opinion, Xinis sides with Abrego Garcia.
"Abrego Garcia has the better argument," the judge writes.
"[A] nunc pro tunc order, is not one which 'rewrite[s] [the] history' of a case," the court explains. "Nor is it one that alters the substantive rights of the litigants. A nunc pro tunc order, for example, cannot effectively reset the statutes of limitations, or restart the time to bring an appeal. To construe the effect of the nunc pro tunc order otherwise would permit the Court or litigants to create loopholes in the finality of judgments simply by recasting it via a new order issued nunc pro tunc."
At its root, the present state of the case is about time — specifically, whether or not the Dec. 11, 2025, removal order reset the clock and renewed the removal order against Abrego Garcia.
In no uncertain terms, the court found it did no such thing.
Xinis explains, at length:
[T]he nunc pro tunc order did no more than add an order of removal effective October 10, 2019, which became administratively final thirty days later.
This is the only reading consistent with a true nunc pro tunc order. To read the order otherwise, as [the DOJ and ICE] suggest, would indeed rewrite the history of this case. It would restart Respondents "removal period" pursuant to [federal law], and by extension, eviscerate the removal period and the six years when [ICE] did nothing to effectuate third-country removal. Respondents reading would also conveniently erase this last year of Abrego Garcia's detention…Because a "now for then" order cannot alter substantive rights or rewrite history, the Court must reject [DOJ's] arguments.
Instead, the nunc pro tunc order simply made the historic record "speak the truth" that the withholding order also included an order of removal to El Salvador but was apparently inadvertently left out from the withholding order. Thus, this Court—and Respondents—must accept that truth, and the obvious legal consequences that flow from it.
"Because the nunc pro tunc order itself is now final, then the underlying order of removal, effective as of October 10, 2019, became administratively final in November 2019," the order goes on. "By extension, the 'removal period' for which Abrego Garcia's detention had been compelled, was over long ago. As to what this means for Abrego Garcia's continued release, it secures rather than undermines it."
Ultimately, as a result of the Trump administration's own efforts to re-detain Abrego Garcia using the backdated order, the judge has now transformed the previous temporary restraining order into an injunction barring his detention.
"Respondents have done nothing to show that Abrego Garcia's continued detention in ICE custody is consistent with due process," the court found. "Thus, he must remain on the stringent release conditions already imposed by ICE and in the Tennessee Criminal Matter."
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