Hours after a federal judge ordered Kilmar Abrego Garcia released, a Department of Justice immigration judge filed a December 11 amendment saying a final deportation order had been omitted from the administrative record and invoking the narrow doctrine known as a 'scrivener's error.'
Background
Kilmar Abrego Garcia, a Salvadoran national who entered the United States around 2011, has been at the center of a contentious immigration dispute that included detention and a now-reversed rendition to Venezuela. His case, which has featured immigration proceedings since 2019, drew renewed attention when U.S. District Judge Paula Xinis concluded that no final deportation order appeared to have been issued.
The 'Scrivener's Error' Amendment
In a December 11 filing, an immigration judge — a Department of Justice employee — described the absence of a deportation order as an 'erroneous omission' by the official who adjudicated the case in 2019. The filing asserts that a later immigration judge discovered the omission and amended the record to retroactively add language directing Abrego Garcia's removal to El Salvador.
What Is a Scrivener's Error?
The term 'scrivener' derives from Latin scriba (scribe) and evokes the figure in Herman Melville's short story 'Bartleby, the Scrivener.' In law, a 'scrivener's error' traditionally refers to a very small clerical mistake or typographical slip that judges may correct when the intended meaning is clear from context.
'A scrivener's error is typically a minor slip, such as a misprint or typo,' said Bryan Garner, lexicographer and co-author of Reading Law: The Interpretation of Legal Texts. 'Courts usually reserve this doctrine for corrections that do not alter substantive rights.'
Scholars Say This Case Is Different
Several legal scholars who reviewed the filing said the omission in Abrego Garcia's record does not resemble an ordinary scrivener's error. Ryan Doerfler, a Harvard law professor who has written on the doctrine, and Evan Bernick, an associate law professor at Northern Illinois University, both argued that retroactively adding a deportation order is more than fixing a typo.
'Youre not fixing a typo,' Bernick said. 'Youre literally creating a new order, out of nothing, that affects somebody's rights.'
Garner declined to comment on the specific file but cautioned that treating substantial omissions as scrivener's errors would face intense appellate scrutiny. 'For an appellate court to declare as a matter of law that something is a scrivener's error that is anything beyond a mere, small inadvertence would be extraordinary,' he said.
Judge Xinis' Response and Current Status
Judge Xinis has temporarily blocked the Trump administration's attempts to re-detain Abrego Garcia. While she has not resolved the legal question about the retroactive order, she placed the belated document in quotation marks in her filings, referring to it as a 'new ''order''' and to 'this newest ''order''.'
Why This Matters
The dispute over whether an omitted deportation order can be corrected as a scrivener's error raises weighty questions about administrative process, individual rights, and the limits of clerical fixes in immigration adjudication. The case also spotlights broader tensions over immigration policy and how far administrations may go when records are incomplete or contested.
As Melville observed in Bartleby, 'It is, of course, an indispensable part of a scrivener's business to verify the accuracy of his copy, word by word.' The phrase may be archaic, but the legal label and its potential consequences remain very much alive.
