A federal judge in Tennessee has cleared the way for Kilmar Abrego Garcia to be released from jail pending a criminal trial there, throwing yet another wrench into the Trump administration’s high-profile prosecution of the 29-year-old from El Salvador. Within hours, a second judge in Maryland blocked Immigration and Customs Enforcement from retaliating by racing to exile him from the country once again.
The one-two punch means that the White House is barred from proceeding with its strategy of bouncing Abrego Garcia around from jail to jail to fulfill its promises that the migrant won’t return to his normal life in Maryland with his family.
U.S. District Judge Waverly D. Crenshaw Jr. also dealt a blow to President Donald Trump’s repeated assertions that Abrego Garcia is a member of a notorious street gang, ripping into what he called “the government’s poor attempts to tie Abrego to MS-13.”
Federal officials, given ample opportunity to present whatever evidence they have to keep Abrego Garcia behind bars for the next several months, relied heavily on testimony from a Homeland Security Agent named Peter T. Joseph who merely recalled how two witnesses said the man was “familial” with gang members and a third simply “believed” him to be one.
The judge even pointed out that the feds undercut their own case by claiming that Abrego Garcia was willing to assist members of rival gangs.
“There is no evidence before the court that Abrego: has markings or tattoos showing gang affiliation; has working relationships with known MS-13 members; ever told any of the witnesses that he is a MS-13 member; or has ever been affiliated with any sort of gang activity. To the contrary, Agent Joseph presented testimony based on statements from cooperating witnesses that Abrego transported both Barrio 18 and MS-13 members alike, and was cordial with both during those trips. This cuts against the already slim evidence demonstrating Abrego is a member of MS-13,” he wrote.
Wednesday’s order said that “Abrego should be released” as soon as the magistrate judge handling the case, Barbara D. Holmes, formally issues an order saying so. (Holmes had already denied the government’s detention requests last month, but the matter was on appeal to the district judge.)
However, the Trump administration’s Justice Department attorneys have already indicated that the government will refuse to free Abrego Garcia — instead diverting him into the nation’s immigration detention system, which is partially insulated from court rulings, and forcing him onto a plane to be sent back to El Salvador or an as-yet unidentified third country. (War-torn South Sudan and Libya are both on a short list of nations being considered overall as sites potentially willing to accept exiled migrants.)
As such, U.S. District Judge Paula Xinis later on Wednesday issued her own ruling that prohibits federal agents from seizing him on his way out of jail in Tennessee. Abrego Garcia would still be placed under an “ICE supervision order” but could live at home and keep a job with a work authorization permit. She also ordered the feds to give him 72 hours’ notice if they plan to exile him to a nation that isn’t the home country he fled.
Xinis began her order by stressing that ICE “agents arrested and detained Abrego Garcia without any lawful basis.”
Abrego Garcia has become the poster child for the Trump White House’s aggressive immigration crackdown, having been plucked from his family in Maryland by ICE agents and quickly shipped off to a gang stockade in El Salvador due to what the Justice Department admitted was an “administrative error” — only to be brought back to the United States to face a hastily put together criminal case for allegedly smuggling migrants into the country.
On Wednesday afternoon, Crenshaw wrote that “the government fails to provide any evidence that there is something in Abrego’s history, or his exhibited characteristics, that warrants detention” as the Salvadoran immigrant awaits trial.
The judge noted the U.S. court system’s “default position” is to grant a person their freedom while they challenge criminal charges unless there’s reason to believe they’ll flee or pose a danger to others.
In a 37-page opinion, the judge conceded that federal prosecutors presented evidence that Abrego may have transported underage people but added that “there is no solid evidence in the record indicating any of them, or others transported, were physically or emotionally harmed by Abrego. And Abrego is correct that these crimes are not those that are considered typically violent such that a presumption of detention is warranted.”
It’s unclear how soon the magistrate judge will rule, but by mid-afternoon Wednesday she had already granted a request by Abrego Garcia’s lawyers to postpone his release to prevent the Department of Homeland Security from subjecting him to rushed deportation.