The American judicial system is an adversarial system. Each side in a legal conflict amasses its evidence and legal argument while challenging the adversary’s evidence and argument. Each side is supposed to be scrupulously honest about its evidence and argument so the fact finder (judge or jury) can make a decision based on all the submitted facts and legal (statutes, regulations, court decisions, agency practice…) support.
A result of this, particularly in criminal cases, is for an accused person to throw out a lot of evidence and argument, like spaghetti at a wall, and see what sticks. In the proverbial chicken-theft scenario, the accused chicken thief may argue:
I did’t steal the chicken.
It was my chicken.
I had permission to take the chicken.
It was my chicken.
Lawyers are unembarrassed in making alternative arguments. Usually, attorneys put their best arguments first and then the others down the line, but, it has been my preference to mix them up a little so as not to signal that the alternative arguments are of more and less seriousness.
In more pure legal arguments, opposing counsel proffer arguments about how the law in question means different things. The limitation is that the arguments must be in good faith (whatever that means) and, if contrary to current legal interpretation, the controlling rule, usually a court case, must be cited. The citation signal, “but see” is employed just for this. You will often see in legal briefing:
The statute means A and not B, but see, Polonius v. Polonius (statute means B and not A). This obviously means raising out-there but plausible arguments in good faith to advance the law. Just what is “out-there but plausible” is sometimes in dispute with attorneys arguing back and forth that an argument is spurious, disingenuous, self-serving, all euphemisms for BS or a lie. Such is the wonderful adversary system.
A long while ago I was involved in district court litigation that hinged on an interpretation of some statutes. The fact of the matter was that I was right and the government was wrong. It used to shock me when the government would advance out-there arguments I deemed spurious, disingenuous, self-serving, i.e., BS arguments and I was shocked. They lost as my arguments prevailed. It so happened I came upon the assistant U.S. Attorney whom I was battling in the case on the street. He was (still is) an affable fellow and we had a friendly relationship. I asked him, “Did you really think you could win with those arguments.” He said, “When you work on these things hard enough and long enough, you start believing what you are writing.” The observation was true. I have had cases where I was convinced of the correctness of arguments I concocted which in retrospect may have been a little outré. The explanation/rationalization is that a lot of outré arguments are now the law, such as the end of separate but equal, gay marriage, and Kavanaugh Stops.
With that five paragraph warm up, I want to talk about recent developments in the Kilmar Abrego Garcia case. At issue, newly again, is the fact that technically there is no order of removal from an immigration judge. The issue was raised anew in the order of three days ago by a federal district court judge in Maryland for ICE to release Mr. Obrego. She indicated that a reason to release Mr. Obrego is that he is being held to be removed without a removal order. To me this is not a serious reason to order his release. Fortunately for Mr. Obrego, she had a second, serious reason. Here’s why I think so.
An immigration court has a standard progression. First, a determination is made about whether the person is removable, the removability phase. The issue reduces to this question: Is the person in lawful status and if so, has he done anything that should have that lawful status taken away? If the answer to the first part is YES and the second part is NO, the person is not removable and the case ends.
If the answer is NO or YES, YES, the person is deemed removable. Then the question becomes, “Is there relief available to them that they merit either to give them a status or allow them to keep the status, the relief phase? If not, the person is ordered removed.
Then, the question is, is he eligible and deserving of a bar on his being deported to certain countries or any countries? Among the bars to removal is Withholding of Removal and protection under the United Nations Convention Against Torture (CAT).
The way Mr. Obrego’s case went was that in the removability phase, he was determined to be removable. He then advanced to the relief phase. He sought asylum and it was denied.
Here, the immigration judge erred. He did not find Mr. Obrego removable. Nonetheless, he then went to the phase to determine if there was some bar to removing him. Here, the immigration determined there was – Mr. Obrego could not be removed to his native El Salvador because he was granting withholding of removal, which literally means, prevention of deportation.
The question is the impact of the failure to order removal. The judge in the case gave two basic reasons for releasing Mr. Obrego. The first, as noted, was the absence of a removal order. However, she did not rely solely on this. She had a second reason; the Supreme Court has said that the government has 90 days to remove a person or to be about to release someone or they have to release the person until they can actually deport them. This is what she ordered.
After the district court judge’s order, an immigration judge issued a new order in the Obrego case stating that it was correcting a scrivener’s error in the failure to formally issue a removal order before advancing to the withholding of removal phase of the case. Mr. Obrego and the immigration pundit class see this as an improper move. The case was last at the administrative appeals board of the immigration court system, the Board of Immigration Appeals, and that is where the correction action should have originated according to the procedural rules of the immigration court system. Also, the question of the independence of the immigration court system was put into question by why the immigration court would go back and “fix” an order unless it was under pressure from the Trump administration to do so.
As I noted, to me, the oversight is not a big deal. The withholding of removal statute states, “… [t]he Attorney General may not remove an alien to a country if the Attorney General decides that the alien’s life or freedom would be threatened in that country because of the alien’s race, religion, nationality, membership in a particular social group, or political opinion.” It is clearly about removing someone, i.e., someone with a removal order where the government is contemplating removing them. The section of law is at the Immigration and Nationality Act Section 241 (8 USC 1231), entitled, “Detention and removal of aliens ordered removed. The title, probative but not dispositive, has the words, “aliens ordered removed.”
The subsections are:
(a) Detention, release, and removal of aliens ordered removed;
(b) Countries to which aliens may be removed;
(c) Removal of aliens arriving at port of entry;
(d) Requirements of persons providing transportation;
(e) Payment of expenses of removal;
(f) Aliens requiring personal care during removal.
Then three sections about detaining people subject to deportation. It is quite clear that all the relevant sections of the statute show that withholding of removal (in sub-section (b), above) is for people with removal orders. In the judge’s order, she cites a bunch of cases that indicate that the withholding of removal order is separate from the removal order. True, but this does not necessarily mean that the absence of the removal order is a fatal flaw in the case. The cited cases also show that withholding of removal does not exist independent of a removal order. There is no such thing as having withholding of removal without a removal order. Just like you cannot have been cured of the measles if you never had the measles. It is thus quite clear that it was more of a scrivener’s error than a serious misstep in Mr. Obrego’s removal hearing that caused the failure to enter a removal order. In fact, immigration judges have a a standard for to enter orders in a case with sections to check off. A removal order is a section to check. The oversight was not checking a proverbial box. Quibbling about how to correct the error is fine — lawyers quibble, but it is really not a big thing – Mr. Obrego’s removal (order) was ordered withheld – the removal order was not executable for El Salvador.
Suppose, things were opposite and having a removal order is a desirable thing. Suppose Congress passed a law that stated that anyone with a final order of removal before 2020 (Mr. Obrego’s immigration court withholding order was in October 2019 (Guess who was president), is eligible for forgiveness, the granting of permanent lawful status, and a Spiegal catalogue gift certificate. You can bet Mr. Obrego would be arguing that implicit in the grant of withholding of removal is a removal order.
The judge’s second reason to order Mr. Obrego’s release, the failure to remove him in 90 days, is still a viable basis to order his release from custody. That she put that argument second is likely her preference, like mine, not to signal which she thinks is the stronger one. Posted December 14, 2025.