The Corner
Law & the Courts

More Trump DOJ Hijinks in Abrego Garcia Saga

By Andrew C. McCarthy
December 13, 2025 12:54 PM


Kilmar Abrego speaks to his supporters as he appears for a check-in at the ICE Baltimore field office three days after his release from criminal custody in Tennessee, in Baltimore, Md., August 25, 2025. (Elizabeth Frantz/Reuters)

On Friday evening, we posted my piece on “The Mind-Boggling Saga of Kilmar Abrego Garcia” (hereafter, Abrego). Little did I know at the time that a new chapter was already being added.

In a nutshell, after months of playing “hide the ball” (or is it, “hide the lack of a ball”?) about whether there exists an order of removal authorizing Abrego’s detention and deportation, the Trump Justice Department has attempted to cure the absence of an order by what appears to be a blatantly illegal process: To wit, without notice to Abrego, the DOJ went ex parte to a DOJ immigration judge who lacks jurisdiction over the case, but who nevertheless dutifully issued a “sua sponte order correcting scrivener’s error” order, under which everyone is now supposed to pretend — Abracadabra! — that there was an order of removal all along.

Before we dig into what happened, some necessary legal framework. Aliens do not have the full array of constitutional rights that American citizens can vindicate through the federal courts. Ergo, immigration enforcement is primarily left to the political branches, although there is some judicial review. What we call “immigration judges” and the “Bureau of Immigration Appeals” (BIA) are actually executive branch offices, located in the Justice Department and subordinate to the Attorney General. They are not Article III judges and courts.

Meaning: Immigration Judge (IJ) Phillip Taylor, from whom the DOJ obtained the above described, ex parte order on Thursday night, works for the DOJ. ... Now, let’s get to what happened here.

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Andrew C. McCarthy is a senior fellow at National Review Institute, an NR contributing editor, and author of Ball of Collusion: The Plot to Rig an Election and Destroy a Presidency. @AndrewCMcCarthy