Judge Xinis and the Abrego Gacia Case, and The Judge Boasberg Contempt Inquiry -- Updates On Both

Developments in these two cases have come in rapid-fire succession the past few days -- with both Judges looking to have come out worse for their efforts.

This is going out free to everyone as a short-ish update on developments in these two cases over the past few thats given that I have covered each extensively. I’m may do a little deeper dive when I have a bit more time in the days ahead. But I think both of these cases may have come to their respective “Finish Lines.”

Judge Boasberg’s Criminal Contempt Inquiry

Last week I wrote about the hearings set for Dec. 15 and 16 during which he planned to hear in-person testimony from a former DOJ attorney and the Deputy Assistant Attorney General who has been handling the “Alien Enemies Act” case since it was filed in the D.C. District Court back on March 15. The stated purpose of the testimony was to gather additional evidence concerning the “state of mind” of DHS Sec. Kristi Noem at the time she is alleged to have violated his TRO by deciding to continue the deportation flights of Venezuelan nationals alleged to be members of the Tren de Aragua gang, and declared as “Alien Enemies” of the United States by the President.

The former DOJ attorney — who coincidentally handled the Abrego Garcia case referenced below before he was terminated — filed a Whistleblower claim with Congress alleging that DOJ attorneys, including the Dep. Attorney General and his top staff member, had discussed the need to ignore any order from a federal judge seeking to halt the planned deportations the day before Judge Boasberg attempted to do that very thing with his TRO. Judge Boasberg has already made a “probable cause” finding that DOJ and DHS did exactly during the evening on March 15 after he issued a second TRO regarding flights that had already departed.

I noted in my earlier article that DOJ filed a Motion for Reconsideration challenging Judge Boasberg’s planned hearing, and asking him to halt his inquiry and to simply make a decision on whether a referral for a criminal contempt investigation/prosecution by an appropriate prosecuting authority was warranted. The DOJ noted that back in April Judge Boasberg claimed to have made a finding that such probable cause existed, and the only information he did not have at that time was the identity of the Trump Administration Official who made the decision. That information has now been provided to him, and it is DOJ’s view that any further factual inquiry — such as the plan to take testimony under oath from the two attorneys — is beyond the authority of a district court judge in this circumstance.

The Government’s Motion for Reconsideration was denied by Judge Boasberg, largely based on the fact that he believed a prior remand order from the D.C. Appeals Court had authorized him to move forward with the contempt inquiry that was paused by an earlier effort by DOJ to derail it. He noted that the original panel decision returning the case to him, and published statements by D.C. Appeals Court judges when en banc review was denied, recognized that he had the authority to continue his inquiry upon the case being sent back to him. He left the hearings set for Dec. 15 and 16 notwithstanding a request by DOJ to delay them until DOJ could return to the Appeals Court for further clarification.

Given Judge Boasberg’s insistence on going forward, on Friday morning DOJ filed another Petition for Writ of Mandamus, requesting that the Appeals Court order Judge Boasberg to halt his plans to develop further facts about the internal decision-making process of the Executive Branch.

Late in the day on Friday, a three-judge panel of the D.C. Appeals Court issued a “Stay” with regard to Judge Boasberg’s planned hearing while the matter of the Petition for Writ of Mandamus was considered. As a result, Judge Boasberg vacated the hearings set for this week.

More significantly, on Monday of this week the Appeals Court issued an Order regarding the briefing schedule, giving the petitioners — the ACLU — until December 29 to file a response to the Petition, with the DOJ to file a Reply on or before January 5, 2026. As is normal, the Court set no date for an oral argument— those are at the option of the Court after the briefing is complete. There is no reliable way to predict when the Court will decide the issue. The prior Petition in this matter was filed by DOJ in April, and was not decided by the Appeals Court until August.

But the Order also provided some “direction” to the parties, telling them to address two questions:

“Direct” contempt is conduct that happens inside the courtroom and witnessed by the judge personally. The question of criminal contempt in that circumstance is left to the presiding judge to decide.

But when there is “indirect” contempt — conduct outside the courtroom that the judge only hears about from others — the process set forth by the rule noted above is for the judge to refer the matter to a prosecuting authority to investigate and determine if a charging document — an “Order To Show Cause Re Contempt” — is warranted.

As the DOJ noted in its Petition, Judge Boasberg has already issued a written Opinion saying he believes there is probable cause that criminal contempt was committed by someone in the Trump Administration. Now he knows who the individual was that made the decision to continue the flights. The Order above says the parties should address the question of whether the judge, having already come to this conclusion, is authorized by law to continue an investigation of the possible grounds for indirect contempt.

The case cited in the Order — Young v. United States ex rel. Vuitton et Fils — is the case I addressed in my article last week. In that case the majority supported the proposition that the “investigation” of an indirect criminal contempt allegation should be conducted by investigators, and not the judge.

The logic of this rationale is that a court ordinarily should first request the appropriate prosecuting authority to prosecute contempt actions, and should appoint a private prosecutor only if that request is denied. Such a procedure ensures that the court will exercise its inherent power of self-protection only as a last resort.

In practice, courts can reasonably expect that the public prosecutor will accept the responsibility for prosecution….

Referral will thus enhance the prospect that investigative activity will be conducted by trained prosecutors….

Nothing in the Supreme Court’s opinion supports the proposition that the Judge convert himself into an investigator, and use the judicial power of the court to summon witnesses and take testimony under oath for his/her own purposes rather than the needs of the underlying litigation.

The DOJ view — which the Appeals panel seems to be signaling some measure of support — is that Judge Boasberg has all the facts he needs, and the decision is now ripe for him to make. Either make a contempt referral or close the inquiry.

Judge Xinis and Kilmar Abrego Garcia — Check Mate?

In a less than shocking decision last week, Judge Xinis in the District of Maryland cobbled together a legally dubious theory for why the “Maryland Man” cannot be detained in ICE custody — the DOJ has never produced an “Order of Removal” that meets with her satisfaction, therefore the DOJ lacked authority to arrest him last March, lacked authority to detain him, and lacked authority it to deport him to any location out of the country — not just El Salvador where he had the benefit of a “Withholding of Removal Order” granted in October 2019.

In my article last week I examined Judge Xinis’s and came to the conclusion that she either does not understand that “Order of Removal” is a term of art and not a “thing” with a caption saying “I AM AN ORDER OF REMOVAL”, or Judge Xinis engaged in legal sophistry and intellectual dishonesty in finding the Order signed by the Immigration Judge in October 2019 did not include an “Order of Removal” as that phrase is EXPRESSLY defined in the immigration statutes.

Based on her conclusions, Judge Xinis ordered last Thursday that Abrego Garcia be released from ICE detention immediately. She found that she had authority to do so because the “jurisdiction-stripping” statute passed by Congress in 1996 — depriving district courts of jurisdiction over immigration matters in almost every respect — only applied to claims effecting the enforcement of an “Order of Removal.” Since she found there was no “Order of Removal,” the relief sought by Abrego Garcia via his habeas petition did not come under the jurisdiction-stripping statute passed by Congress so she had the authority to order his release from custody.

Well, ok then.

On Friday an Immigration Judge issued an “Amended Order of Removal” and inserted the magic words into the October 2019 Order that Judge Xinis said were missing. The Order was entered “nunc pro tunc” which is a Latin term that roughly translates into “retroactive” in is effect. This was done as an accepted remedy for what is referred to as a “Scrivener’s Error” in a legal document. That is an inadvertent omission of material or information that, if included, doesn’t change the meaning intended by the drafter at the time the document was prepared, and is consistent with that intent as amended.

The Immigration Judge noted that Abrego Garcia had conceded he was unlawfully in the country and subject to removal at the time of his original hearing. The only missing information in the Order — as identified by Judge Xinis — were the magic words that Abrego Garcia was “Ordered to be Removed.” So the Immigration Judge added those words.

Abrego Garcia’s attorneys went screaming into Court on Friday morning seeking another TRO from Judge Xinis blocking his arrest based on a fear that ICE was going to take Abrego Garcia baçk into custody and initiate his removal under the “Amended” Order. Judge Xinis dutifully granted the request and issued another TRO.

But on Sunday the DOJ may have put Judge Xinis in “Check Mate.”

In filing an Opposition/Motion to Dissolve the TRO, DOJ claimed that because Judge Xinis has found there is no “Order of Removal” then Abrego Garcia’s immigration case remains open and ongoing, as the “Order of Removal” typically ends the process and is then followed by the appeals process to the Board of Immigration Appeals (BIA) and the Circuit Court of Appeals — with no role for a district court because of the jurisdiction-stripping statute created by Congress.

Abrego Garcia had denied that a final Order of Removal existed as to him, so by his claim the immigration case was still open as well. Any objection he might have to the “Amended Order of Removal” entered by the Immigration Judge is now subject to the exclusive jurisdiction of the BIA and then the Fourth Circuit after that.

Because his immigration case remains open — according to Judge Xinis’s order — he’s subject to the imposition of detention or release conditions at the discretion of the Immigration Judge. Any objection to the ruling of the Immigration Judge on the issue of detention is appealable to the BIA — not Judge Xinis — and then to the Fourth Circuit.

Taking this position now puts DOJ in the situation where Abrego Garcia has renewed appeal rights that will cause the final disposition of his case to be delayed. BUT, after the BIA rules — assuming it upholds the Order of Removal — Abrego Garcia can be removed even while he appeals to the Fourth Circuit. In fact, that is the normal course. If Abrego Garcia were to win his appeal in the Fourth Circuit, the remedy would simply be that he be admitted back into the country. The availability of that remedy is not compromised by the fact that he is made to wait outside the United States for his appeal to be resolved.

Judge Xinis needed to hold that there was no “order of removal” so that she could evade the jurisdiction-stripping statute that would have prevented her from handling any case challenging the enforcement of an “order of removal.”

But that didn’t make Abrego Garcia’s presence in the U.S. lawful. Now he’s no different than any other illegal alien in the country and subject to removal. His case should now proceed in the normal course without further interference by Judge Xinis — she can’t make him a citizen on her own, no matter how badly she might want to do so.

She has given Abrego Garcia until 8:00 pm on December 17 to reply to the Government’s Opposition.