That apparent gap has become the centerpiece of a fight over whether the government can keep holding the 30-year-old Salvadoran in immigration detention or try to deport him again, even as he faces separate human-smuggling charges in Tennessee. But to some immigration experts, the dispute only makes sense if you zoom out to an overlooked mistake in 2019, when an immigration judge granted Abrego Garcia limited protection from deportation.

In an April 4 analysis, former immigration judge Art Arthur argued that the confusion grew out of the Baltimore immigration judge’s 14-page decision in 2019 granting Abrego Garcia statutory “withholding of removal” from El Salvador, a technical form of protection that is much weaker than asylum. Unlike asylum, withholding only bars the government from sending a person to a specific country. It does not give a green card, a path to citizenship, or even lasting lawful status. And it only comes after an immigration judge has ordered the person to be removed.

That sequence is no small detail. In a 2008 decision called Matter of I-S- & C-S-, the Board of Immigration Appeals held that “in order to withhold removal there must first be an order of removal that can be withheld.”  In other words, there has to be an actual, executable removal order on the books before a judge can say, “you can’t send this person back to Country X.”

Arthur’s April article, published by the Center for Immigration Studies, lays out what he sees as the real flaw in Abrego Garcia’s case. The Baltimore judge wrote a lengthy narrative decision in 2019, finding Abrego removable, denying him asylum, and then granting statutory withholding of removal. But in the ruling, a crucial discussion of future harm shifted away from El Salvador, Abrego Garcia’s home country, to Guatemala. The judge ultimately concluded that the government had not shown changed conditions “in Guatemala,” language that, in Arthur’s view, reads like a grant of withholding from Guatemala, not El Salvador.  

Compounding that, Arthur said, the judge never issued, or at least never produced, the short, pre-printed “minute order” that immigration courts typically use to memorialize the actual order of removal and the country or countries to which removal is barred. That one-page form, not the 14-page memorandum, is what carries legal effect in the system and what noncitizens are supposed to show if an officer asks why they are allowed to stay.

“While the judge’s memorandum is enlightening, it conveys no legal authority in and of itself,” Arthur wrote in April, explaining that the missing minute order is the document that would definitively show whether the judge ordered his removal. In essence, the fact that Abrego Garcia was offered a limited withholding of removal order implies that he was ordered for removal.

That omission, Arthur argues, is the real “administrative error” that set the case on a strange trajectory.

Years later, Xinis is poring over that same 2019 decision and has zeroed in on the missing removal order, reading its absence as a sign that neither ICE’s March removal nor the government’s current argument in favor of Abrego Garcia’s continued detention rests on solid legal ground.

To Arthur, the answer is that the underlying law fills in the gap. Because statutory withholding can only be granted after an order of removal, the judge must have ordered him removed, even if the paperwork is missing. If the order is ambiguous about which country is protected, he said, that was a problem for Abrego Garcia and his lawyer to fix in 2019 — not a reason, in 2025, to treat him as if he’s never been ordered removed at all.

“In order for me to grant you withholding, I have to order you removed first,” Arthur said in an interview with the Washington Examiner, pointing to the immigration board’s 2008 precedent and the text of the Immigration and Nationality Act. He suggested the government now needs to lay that out clearly in a brief to Xinis, explaining why the absence of a minute order is a paperwork defect, not a constitutional one.

That legal posture would also shift the focus away from the government’s admitted mistake this year, when ICE agents wrongly interpreted his status had changed and flew him to El Salvador, prompting Xinis to order his return in April. Arthur contends that the more consequential error occurred six years earlier, when the first immigration judge wrote an opinion that blurred the distinctions between threats in El Salvador and Guatemala, failed to clearly explain why internal relocation within El Salvador was impossible, and did not produce the minute order that should have governed everything that followed.

If the judge had issued a clean removal order and the parties had clarified which country was protected, Arthur said, there would be little room now for arguments that there is no removal order at all.

The stakes go beyond dueling interpretations of an old decision. In Maryland, Xinis is currently weighing whether to maintain an injunction blocking Abrego Garcia’s removal while she reviews the record, and whether the government can attempt to send him to a third country, such as Liberia, after earlier talks about Costa Rica fell through. In Tennessee, Chief U.S. District Judge Waverly Crenshaw has already found a “realistic likelihood of vindictiveness” in the human-smuggling charges filed against Abrego Garcia after his wrongful deportation and is set to hold a two-day evidentiary hearing on that issue before a January 27 trial date.  

Those two tracks now intersect at the same choke point, which is what to make of the 2019 ruling.

For Xinis, the missing order currently appears to be a due process issue: removing a noncitizen without a final removal order would be a glaring legal violation. For Arthur and other immigration-law specialists, the bigger issue is whether federal district judges, who rarely wade into removal cases, are being drawn into re-litigating technical questions that should have been resolved years ago in the immigration courts and the Board of Immigration Appeals.

ABREGO GARCIA LAWYERS PUSH TO TOSS HUMAN SMUGGLING CASE

“Everybody in this case has made a mistake,” Arthur said, citing the original immigration judge, the lawyers, and the government itself. The question now, he suggested, is whether the federal courts will untangle those mistakes by looking backward, to the confusing 2019 record and the missing minute order, or continue treating the errors made by the government this year as a reason to keep Abrego Garcia’s case in limbo.

Whatever Xinis decides in the coming days is likely to be appealed to the U.S. Court of Appeals for the 4th Circuit, where judges are more familiar with the black-letter requirements of statutory withholding. That means the six-year-old ambiguity in Abrego Garcia’s file may end up reshaping not just his future, but how far federal judges can go in second-guessing the immigration system’s own paper trail.