Judge forbids Homeland Security from trying to immediately deport Abrego Garcia

Kilmar Abrego Garcia was a “Maryland man” before he was arrested and deported in March, and a federal judge Wednesday ordered that he must become a Maryland man again once he is released from pretrial detention.

Judge Paula Xinis, an Obama appointee to the court in Maryland, said she feared the Department of Homeland Security would try to hide Mr. Abrego Garcia from her and move to speedily deport him once he is no longer being held in his criminal case in Tennessee.

She forbade U.S. Immigration and Customs Enforcement from immediately arresting Mr. Abrego Garcia when he is released in Tennessee and said he must be returned to his previous status in the Maryland community.

Homeland Security denounced the judge as “unhinged” and vowed to find a way to keep the Salvadoran illegal immigrant in custody.

Mr. Abrego Garcia is at the center of the most heated debate over Mr. Trump’s immigration policies. His deportation to El Salvador made him a victim to Democrats and a symbol of broken borders to Republicans.

The Trump administration, after insisting Mr. Abrego Garcia would never set foot in the U.S. again, brought him back from El Salvador after winning a criminal indictment against him on a charge of alien smuggling.

For now, he remains in pretrial custody in Tennessee on that charge, though the judge in that case on Wednesday rejected the administration’s latest plea to keep Mr. Abrego Garcia behind bars while he awaits trial. 

The case returns to a magistrate judge who has already indicated Mr. Abrego Garcia should be released — though the exact timing remains undecided.

Trump officials have said that if he is released, ICE will immediately arrest him on immigration charges and try to deport him.

Judge Xinis, who has regularly battled the administration over Mr. Abrego Garcia, said she cannot allow that.

She said the March 12 arrest and deportation three days later were “unlawful,” so the government must return him to his status before that, which means released by ICE on an order of supervision.

She said that “protects Abrego Garcia from re-deportation without due process.”

Judge Xinis specifically banned Homeland Security from immediately arresting Mr. Abrego Garcia in Tennessee. She said he and his attorneys must be given “72 business hours” of notice if agents want to rearrest him later under new deportation proceedings.

The judge has repeatedly questioned the government’s handling of the case, which she said has sped decisions along without much explanation.

One government attorney admitted in Judge Xinis’ courtroom that Mr. Abrego Garcia’s March 15 deportation to El Salvador was wrong. That’s because, while having a final order of removal lodged against him, he was barred from being sent to El Salvador, in particular because of fears he would face persecution.

That attorney was quickly fired.

Still, Judge Xinis said the snafus continued.

During subsequent hearings, ICE issued a detainer to take custody of Mr. Abrego Garcia if he was released in Tennessee. That was based on “ongoing removal proceedings.”

Yet there are no such proceedings right now, Judge Xinis concluded.

“Thus the ICE detainer seemed thin cover for defendants to take Abrego Garcia into custody in Tennessee and next transfer him to any ICE facility in the United States,” she said. “It certainly confirmed for the court that defendants had no intention of returning Abrego Garcia to the ICE supervision order in Maryland and commencing lawful immigration proceedings from there.”

The government had indicated that if it arrested Mr. Abrego Garcia on immigration charges, it would try to keep him detained. However, thanks to state sanctuary law, no operating detention facilities in Maryland could hold him.

Assistant Homeland Security Secretary Tricia McLaughlin said Wednesday that the department will work to stop the release.

“The facts remain, this MS-13 gang member, human trafficker and illegal alien will never walk America’s streets again,” she said. “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.”

Sen. Chris Van Hollen, the Maryland Democrat who made a high-profile pilgrimage to visit Mr. Abrego Garcia when he was in prison in El Salvador, said Judge Xinis was righting a wrong.

“Today’s ruling is important to upholding the rule of law against a lawless Trump administration,” the senator said. “Every person in our nation is afforded the right to due process by our Constitution.”

Mr. Abrego Garcia was initially deported as a suspected member of MS-13, based on his identification by gang unit police in Prince George’s County, Maryland.

He was also captured on police video during a traffic stop in Tennessee in 2022 with a vehicle full of people whom officers suspected of being illegal immigrants he was transporting.

He was not charged at the time, but after Judge Xinis demanded his return from El Salvador earlier this year, the administration launched an investigation. It said the investigation substantiated Mr. Abrego Garcia’s smuggling activities and a host of new allegations, including soliciting nude photos of an underage girl and being complicit in a homicide in El Salvador.

Mr. Abrego Garcia’s attorneys have said those allegations are unsubstantiated, and he has not been charged in court in connection with those claims.