The request came as lawyers in Kilmar Armando Abrego Garcia’s separate civil case were poised to ask a different judge to hold the Trump administration in contempt for sidestepping one of her orders.
Lawyers for Kilmar Abrego Garcia, the Salvadoran man illegally deported to his native country in March and returned to the U.S. last week to face human trafficking charges, say the Trump administration is compounding his mistreatment by trying to keep him in jail while awaiting trial.
“Mr. Abrego Garcia asks the Court for what he has been denied the past several months — due process,” his lawyers, four appointed public defenders, argued in a 20-page filing to a federal magistrate judge in Nashville, Tennessee, where Abrego Garcia was secretly indicted last month ahead of his return.
U.S. Magistrate Judge Sarah Holmes has set a hearing for Friday on whether Abrego Garcia should be detained as he awaits trial. However, even if she opts against detention in the criminal case, Abrego Garcia will likely be put in immigration custody and his prospects for release there are uncertain.
Holmes has given both sides a deadline of noon local time Thursday to indicate whether they plan to call witnesses at the hearing. However, defense attorneys argue in the new filing that the crimes Abrego Garcia was charged with don’t permit pretrial detention in most circumstances.
Prosecutors allege that Abrego Garcia worked for at least nine years as a driver for an immigrant-smuggling operation and that he was transporting undocumented immigrants in 2022 when he was stopped by Tennessee Highway Patrol on I-40 with “nine Hispanic males packed into” his vehicle. That incident, captured on officers’ body-worn video cameras, involved just a few of the thousands of undocumented immigrants Abrego Garcia ferried across the country, prosecutors contend.
Abrego Garcia currently faces two federal felony charges for transporting undocumented immigrants and conspiring with others to do so. But prosecutors have accused him in court papers of being a member of the MS-13 gang and engaging in a “myriad of illegal conduct,” including claiming involvement in the murder of a rival gang member’s mother and of soliciting child pornography.
The submission from Abrego Garcia’s lawyers is his first attempt to rebut the criminal allegations against him. The attorneys used the filing to poke holes in the government’s legal arguments while making few factual claims that could complicate his future defense in the case. Abrego Garcia “obviously denies the government’s baseless gang-affiliation allegations,” his attorneys said, while not grappling with the murder and child pornography claims prosecutors have floated but not charged.
The defense attorneys argue that Abrego Garcia is not a danger to the public and poses no risk of fleeing rather than facing the charges against him, the two bases upon which prosecutors are seeking to keep him incarcerated.
“Mr. Abrego Garcia must be released,” they say.
Abrego Garcia entered the United States in 2012 and sought asylum in 2019, after he was detained and faced deportation proceedings. Though his claim was denied, an immigration judge agreed to bar immigration officials from sending him back to El Salvador because of the potential that he might be targeted for violence by a local gang.
But in March, amid President Donald Trump’s mass deportation effort, Abrego Garcia was whisked onto an airplane and sent to El Salvador without warning, violating the 2019 order, which remains in effect. Despite the error, which the Trump administration repeatedly acknowledged in court, Trump and his aides resisted court orders to facilitate Abrego Garcia’s return. They disparaged him as a criminal gang member and mocked legal efforts aimed at securing his return. Trump and El Salvador’s president, Nayib Bukele, discussed the issue publicly in the Oval Office and rejected suggestions that they return Abrego Garcia to the United States.
That changed last week after the criminal case was made public. Bukele said he had no qualms returning Abrego Garcia, given the charges against him. In the meantime, Abrego Garcia became emblematic of Trump’s haphazard race to fulfill his mass deportation promise, marked by repeated court rulings that found him to be violating due process rights and several other admissions of erroneous deportations.
That publicity, Abrego Garcia’s lawyers say, suggests he may have an even stronger case against deportation to El Salvador when the criminal matter is resolved — even if he’s convicted.
