Washington — A federal judge on Wednesday barred federal immigration authorities from immediately taking Kilmar Abrego Garcia into custody once he is released from criminal confinement in Tennessee and ordered the Trump administration to provide him 72 hours’ notice if it plans to initiate proceedings to remove him to a country that is not his place of origin.
The order from U.S. District Judge Paula Xinis was issued as a federal judge in Tennessee, who is presiding over Abrego Garcia’s criminal case, ruled that the Salvadoran national should be released from the custody of federal law enforcement under conditions that will be set by a magistrate judge.
The Tennessee judge, Waverly Crenshaw, denied the Justice Department’s request to revoke an order allowing Abrego Garcia to be released while awaiting a criminal trial, writing that the government “failed to carry its burden of showing that no condition or combination of conditions will reasonably assure Abrego’s appearance or the safety of others.”
But Abrego Garcia will not be released from criminal custody immediately.
The magistrate judge overseeing his case granted a request from his lawyers, made last week, to hold off on issuing the order directing Abrego Garcia’s release for 30 days. The judge said he will continue to remain in the custody of U.S. Marshals.
“These rulings are a powerful rebuke of the government’s lawless conduct and a critical safeguard for Kilmar’s due process rights,” Simon Sandoval-Moshenberg, an attorney for Abrego Garcia, said in a statement. “A federal judge has now barred ICE from taking him back into custody and ordered that any future deportation attempt must come with advance notice. After the government unlawfully deported him once without warning, this legal protection is essential.”
Tricia McLaughlin, a spokesperson for the Department of Homeland Security, attacked Xinis for her decision.
“The fact this unhinged judge is trying to tell ICE they can’t arrest an MS-13 gang member, indicted by a grand jury for human trafficking, and subject to immigration arrest under federal law is LAWLESS AND INSANE,” she said in a statement.
Abrego Garcia was charged with two criminal counts of human smuggling last month and has pleaded not guilty. While the magistrate judge said he should be released from the custody of U.S. Marshals ahead of a trial, set to begin in January, the order prompted concerns that Abrego Garcia would then be swiftly detained by federal immigration authorities and deported.
But Xinis’ order limits the Trump administration’s ability to swiftly remove him from the U.S. In addition to blocking Trump administration officials from taking Abrego Garcia into custody upon his release in Tennessee, Xinis ordered the Department of Homeland Security to return him to supervised release under U.S. Immigration and Customs Enforcement’s Baltimore field office. She said Abrego Garcia should be returned to Maryland, where he lives with his family.
Under that supervision order, issued in 2019, Abrego Garcia had permission to live in Maryland, as well as authorization to work. He was required to check in with an immigration officer at the ICE office in Baltimore. Court filings indicate Abrego Garcia was in compliance with the ICE supervision order when he was deported to El Salvador.
Xinis said her relief allows the Trump administration to initiate immigration proceedings once Abrego Garcia returns to Maryland, but said those proceedings must begin in Baltimore, which was handling the earlier ICE supervision order.
“Once Abrego Garcia is restored under the ICE Supervision Order out of the Baltimore Field Office, defendants may take whatever action is available to them under the law,” Xinis said.
Xinis, who sits on the federal district court in Maryland, wrote that she “must accord modest relief” that ensures Abrego Garcia is not subject to “re-deportation without due process” and ensures the fulfillment of her order earlier this year that required the Trump administration to return him to the U.S. from El Salvador.
Administration officials, she wrote, “have done little to assure the court that absent intervention, Abrego Garcia’s due process rights will be protected.”
Sen. Chris Van Hollen of Maryland, who visited Abrego Garcia when he was detained in El Salvador, cheered Xinis’ decision.
“It’s clear this administration would rather deport Kilmar Abrego Garcia to a third country, with no chance at due process, than argue their case in court. This order will prevent that, and ensure that Kilmar Abrego Garcia is returned to Maryland following the U.S. District Court in Tennessee’s determination that he does not pose any threat to the public,” he said in a statement.
Abrego Garcia, who entered the U.S. illegally in 2011, was detained by ICE in March and sent to a Salvadoran prison along with hundreds of other deportees despite a 2019 court order that barred him from being sent back to El Salvador due to a fear of persecution by gangs. The Trump administration acknowledged Abrego Garcia’s deportation to El Salvador was an “administrative error,” but he remained there for months — despite Xinis ordering the government to facilitate his return — until he was brought to Tennessee to face criminal charges.
While the magistrate judge said he should be released pending trial, the prospect that Abrego Garcia would then swiftly be detained by the Department of Homeland Security for removal proceedings created a new tangle for the courts to unravel. He has remained in the custody of U.S. Marshals as the legal proceedings have continued.
Abrego Garcia’s lawyers asked the Tennessee court last week to put off his release from custody for 30 days if Crenshaw denied the Justice Department’s bid to keep him in confinement while awaiting trial — which the judge did Wednesday.
Abrego Garcia’s lawyers said in seeking the delay in his release last week that they had been advised by the government that “if the court denies the government’s motion for revocation, the defendant would be transferred to the custody of the Department of Homeland Security (‘DHS’), and DHS would begin removal proceedings.”
But earlier this month, Xinis heard testimony about how Abrego Garcia’s deportation proceedings could be handled by ICE. An immigration official told the judge that if Abrego Garcia were to be released from pretrial detention in Tennessee, the agency had not determined where he would be sent.
“There’s been no decision made, as he is not in ICE custody,” Thomas Giles, assistant director for ICE enforcement and removal operations, testified in federal court in Maryland.
Giles was in court after Xinis ordered the government to produce someone with firsthand knowledge of any third country other than El Salvador where Abrego Garcia could be deported to if he were released from criminal custody.
If Abrego Garcia were to receive a notice of removal, up until his deportation, he would be able to express fear about going to a third country, a period of time that could range from “a day to a week,” Giles said.
In a hearing on June 26, Justice Department attorney Jonathan Guynn said that if the Salvadoran man were to be released, ICE would begin removal proceedings to a third country, which is one that is not the country of origin, instead of his native El Salvador.
During the arguments earlier this month, Xinis said she was not willing to allow for an “unfettered release” of Abrego Garcia into ICE custody so he can be “spirited away” and removed from the U.S. before she rules.
“We’re a court of laws and we don’t operate on ‘take my word for it,'” Xinis said. “From day one, you have taken the presumption of regularity and destroyed it in my view.”
Camilo Montoya-Galvez
contributed to this report.
