The Department of Justice is once more seeking to incarcerate Kilmar Abrego Garcia, a Maryland father wrongly deported and accused of human smuggling. The DOJ argues that while Abrego Garcia can contest their decision by requesting a bond hearing, they also maintain that such hearings are not permissible in cases like his.

Previously reported by Law&Crime, Abrego Garcia faced deportation from Maryland in March and was subsequently jailed in El Salvador at the Terrorism Confinement Center (CECOT). The Trump administration later acknowledged the deportation was an “administrative error” and was instructed to ensure his return. This was accomplished in June, following a federal indictment in Tennessee on human smuggling charges, allegedly linked to a 2022 traffic stop. Abrego Garcia contends that the charges were brought as a retaliatory measure, claiming his civil case embarrassed the U.S. government.

Recently, U.S. District Judge Paula Xinis of Maryland ruled in favor of releasing Abrego Garcia from ICE custody. She criticized the Trump administration for detaining him “without lawful authority” and for misleading the court regarding Costa Rica’s willingness to accept him as a refugee. Judge Xinis found there is no existing order for his removal from the U.S.

In response to Abrego Garcia’s emergency release request, the Trump administration filed a document Sunday. According to this filing, Judge Xinis found that a 2019 ruling failed to include the phrase “ordered removed,” leading her to conclude that Abrego Garcia has never been formally ordered for removal and lacks a final removal order.

The DOJ stated in its filing, “This means he is not currently removable from the United States. However, it does not exempt him from being detained in some form.”

The absence of a final order of removal only blocks one pathway to detention, the DOJ said — but not all.

“If there is no final order of removal, immigration proceedings are ongoing, and Petitioner is subject to pre-final order detention under the separate legal authority in [other federal immigration statutes],” the filing said. “This Court’s new TRO precluding detention therefore has no legal basis, and must be immediately dissolved.”

Those other statutes, according to the DOJ, “authorize detention of aliens during removal proceedings” such as Abrego Garcia’s.

“Nothing about this Court’s order somehow shields Petitioner from the ordinary detention rules that apply to all aliens in removal proceedings,” the DOJ filing says. “Rather, the Supreme Court has expressly found that detention remains under [federal immigration law] until there is an ‘administratively final removal order.’”

If Abrego Garcia isn’t happy with the decision to detain him under the relevant statutes, the government says, he could request a bond hearing.

“An alien who is subject to discretionary detention may be released on bond, either by an ICE officer or by an IJ at a bond hearing,” the filing says. “At a bond hearing, the burden is on the alien to justify release by showing that he or she is not a flight risk or a danger. An alien may appeal the bond decision to the [Board of Immigration Appeals].”

However, in July, the DOJ announced a policy ending bond eligibility for people in ICE detention. As Law&Crime has previously reported, ICE instructed all agents to deny bond for anyone who entered the country without “inspection.” Under the terms of the policy, such immigrants are to be detained “for the duration of their removal proceedings” unless granted parole — a rarer form of release. A lawsuit from the ACLU says that the policy will result in tens of thousands of people being “jailed indefinitely while their immigration cases are considered for months or years on end.”

The government, despite its announced policy opposing bond, appears to acknowledge that Abrego Garcia does indeed still have “the right to an independent assessment of whether, even assuming he is detained again, he may be released on bond.”

Even if Abrego Garcia is denied bond, he’s not out of options — according to the government, he can still choose to leave the country.

“If an alien is denied bond, the alien is always free to terminate detention by accepting a final order of removal, qualifying for voluntary departure, or (in some instances) simply leaving the United States,” the filing says in a footnote, adding that “an alien who files a petition for review in the court of appeals after the BIA has entered a final removal order can depart or be removed from the United States and continue to challenge the removal order from abroad.”

Notably, Abrego Garcia has apparently been invited to leave the U.S. for Costa Rica — a fact the Trump administration had denied, leading Xinis to shred the government for “affirmatively” misleading the court on the issue.