In two rulings issued within a curiously short time of each other Wednesday afternoon, a federal judge in Tennessee cleared the way for Kilmar Abrego Garcia to be released from custody pending his criminal trial and a federal judge in Maryland barred the Trump administration from detaining him for immigration proceedings once he’s released.
The pair of highly anticipated rulings means Abrego Garcia could soon be returned to Maryland, where he was unlawfully picked up in March by immigration enforcement and wrongfully deported to El Salvador in violation of an immigration judge’s order that barred his removal to his home country.
With the Trump administration still determined to remove Abrego Garcia — quite likely to a third country — he remains at risk. But in her new order, U.S. District Judge Paula Xinis of Maryland imposed several conditions that require the Trump administration to provide Abrego Garcia due process in any subsequent proceedings. She ordered his immigration case restored to the jurisdiction of the ICE field office in Baltimore and required the Trump administration to give him and his lawyers 72 hours written notice before removing him to a third country.
In issuing her ruling, Xinis said she was trying to restore Abrego Garcia to what had been the status quo before his wrongful removal, a condition imposed by the Supreme Court earlier in this case when it said the Trump administration must facilitate Abrego Garcia’s return. After months of foot-dragging and stone-walling, the Trump administration did return him from El Salvador, but immediately took him into custody on criminal charges that had been kept sealed.
In her ruling today, Judge Xinis wrote that Abrego Garcia’s return was similar to his removal: “in secret and with no advance notice.” The Trump administration did not notify her or Abrego Garcia’s lawyers of his return. One of his lawyers said in recent hearing that he learned of his client’s return via ABC News.
It was that history of defiance and lack of transparency with the court that Xinis used to justify in part her order barring the Department of Homeland Security from detaining Abrego Garcia as soon as he is released from the custody of the Department of Justice in the criminal case.
“Defendants’ defiance and footdragging are, to be sure, the subject of a separate sanctions motion,” she wrote in her ruling. “The Court will not recount this troubling history in detail, other than to note Defendants’ persistent lack of transparency with the tribunal adds to why further injunctive relief is warranted.”
In the Tennessee criminal case, U.S. District Judge Waverly D. Crenshaw Jr. essentially upheld an earlier decision by a magistrate judge that Abrego Garca could be released pending trial with conditions. “The Government has failed to show on appeal that this case is one of the ‘carefully limited exception[s]’ where detention pending trial is justified, entitling Abrego to his liberty in the meantime,” Crenshaw ruled. Crenshaw didn’t order Abrego Garcia’s immediate release; rather, he referred back to the magistrate to issue an order specifying the conditions of release.
While the precise timing of the issuances of the two rulings cannot be immediately determined, it appears that Xinis was poised to issue her ruling as soon as Crenshaw ordered Abrego Garcia’s release. In proceedings more than a week ago, Xinis was well aware that Crenshaw’s decision was pending. She had pondered aloud in open court whether she could issue her order before Crenshaw issued his. She worried that her order might not yet be proper since Crenshaw could still rule to keep Abrego Garcia in custody. But she also was concerned that DHS might swoop in to detain him and take him out of her jurisdiction before she could rule. It appears her solution was to wait for Crenshaw to rule and issue her own decision immediately. It’s not clear if there was any coordination between the two courts.
In the meantime, Abrego Garcia’s lawyers had filed a motion in the Tennessee case to delay his release for 30 days. The Trump administration did not oppose the motion. Since this story was first published, the magistrate judge granted that motion, delaying Abrego Garcia’s release from custody for 30 days. Given Judge Xinis’ robust order protecting their client from being detained by DHS, Abrego Garcia’s lawyers may now seek to speed up his release or they may wait to see if the Trump administration appeals her order.
In crafting procedural safeguards to prevent the Trump administration from again removing Abrego Garcia “without having restored him to the status quo ante and without due process,” Xinis was particularly concerned about the prospect of him being deported to a third county then immediately transferred on to El Salvador, defying the immigration judge order and depriving U.S. courts of jurisdiction.
“Defendants have taken no concrete steps to ensure that any prospective third country would not summarily return Abrego Garcia to El Salvador in an end-run around the very withholding order that offers him uncontroverted protection,” Xinis wrote, pointing to the well-publicized case of Guatemalan national O.C.G. and last weekend’s repatriation of the Venezuelan detainees at CECOT, despite asylum claims by some of the detainees.
In a sign of the distrust Xinis has for the Trump administration given how fast and loose it’s played in this and other cases, she expressly required it to “immediately” distribute her opinion and order “to all relevant officers, agents, and employees under their control, including but not limited to: the United States Marshals Service in the Middle District of Tennessee, the ICE New Orleans Regional Office, the ICE Baltimore Field Office, and all personnel involved in this matter or the pending criminal case.”
Judge Xinis’ opinion:
Judge Crenshaw’s opinion:
Counting, 3, 2, 1,…“Rogue judge!”
In a sane country that fat motherfucker would spend the rest of his life in Gitmo.
Judge Xinis must be mistaken. It’s a well known fact that “President Trump is truly the most transparent & accessible President in American history.”
The Trump Administration will make up any bullshit to accomplish their weird obsession to deport this person. Good on these judges for staying with the case even though the wheels of justice keep falling off and exploding.
Will the rule of law ever be recognized by the Trump administration? I doubt it. I can seen Karoline Leavitt claiming that the judges in this matter are rogue first thing in the morning and Pam Bondi or Little Marco Rubio ordering his arrest and detention the moment he is released.