It was certain that his release would be short-lived.

A s expected, Kilmar Abrego Garcia was taken into custody this morning when he checked in as directed with immigration authorities in Maryland. It is expected that he will be deported imminently, although his lawyers will continue to fight that outcome. Our James Lynch has this report.

As we’ve extensively covered, Abrego Garcia is the subject of a 2019 removal order, but it has a caveat that he may not be deported to his native El Salvador. The order was issued by an immigration “court” — i.e., a Justice Department tribunal, not an independent Article III court. Despite that caveat, called “withholding of removal,” the Trump administration deported him to El Salvador this spring (along with more than 200 Venezuelan aliens, many of whom it alleges are members of the Tren de Aragua criminal gang). From what appears on the public record, the 2019 order is still in effect, even though there is a procedure by which Attorney General Pam Bondi could have tried to get it reversed.

The administration alleges that Abrego Garcia is tied to another criminal gang, MS-13, although its allegations on this score have been inconsistent: Abrego Garcia has been described as everything from a high-ranking MS-13 “leader” to a mere “member” or an “associate” of the group. Because the administration’s deportation of Abrego Garcia to El Salvador was illegal, the Supreme Court directed that it facilitate his return to the United States so that he could posit legal objections he’d have been entitled to make but for the deportation. Administration officials dithered on this directive, falsely claiming (and getting President Nayib Bukele to echo) that they had no power to induce the Salvadoran government to return Abrego Garcia, even though President Trump acknowledged that he could easily do it if he wanted to.

The administration did finally orchestrate Abrego Garcia’s return, in June, but only after indicting him. As I opined at the time, the indictment raised more questions than it answered: It outlined a great deal of horrific extraneous information about MS-13 — murders, drug trafficking, gun trafficking, human trafficking, potential sex abuse — but against Abrego Garcia it alleged only two comparatively minor felony charges of transporting illegal aliens. For all the bluster of the indictment (apparently based on deals the Trump DOJ cut with MS-13 operatives), the two charges were essentially based on a single 2022 traffic stop in Tennessee. I describe the evidence in the column linked above: It appears that Abrego Garcia was indeed smuggling nine illegal aliens and falsely claimed that he was moving them between worksites. The incident was so uneventful, however, that he wasn’t arrested. (State police probably realized that an arrest would be pointless since the Biden DOJ wouldn’t have prosecuted him.)

Clearly, the indictment was larded with uncharged MS-13 crimes in order to support the administration’s narrative linking Abrego Garcia to such activities, even if the evidence implicating him was scant. In charging him, the administration was trying to thread a needle: comply with the Supreme Court’s directive to bring him back to the U.S., but not until the table had been set to ensure that Abrego Garcia would never be released from custody in the United States again. (This, despite the fact that it was the first Trump administration which had failed to appeal the 2019 withholding of removal order and allowed Abrego Garcia to be released to live and work in Maryland — where he lived with his wife — an American citizen — and children.)

The Justice Department presumably assumed that, even though the charges against Abrego Garcia are overblown, the fact that he is an illegal alien under a removal order would be enough to persuade the court to deny bail. This was a miscalculation.

The federal court in Tennessee discerned that the Trump DOJ was not especially interested in trying Abrego Garcia on the charges. A trial would elucidate that the defendant was not charged with much of the mayhem outlined in the indictment and that the Trump DOJ had made unsavory deals with MS-13 figures (some of whom may be worse than Abrego Garcia) in order to obtain testimony against him — testimony that nevertheless did not enable DOJ to charge more serious offenses. The Trump DOJ also acknowledged to the court that it might deport Abrego Garcia rather than try him.

Not surprisingly, then, the federal court in Tennessee granted bail to the defendant. To be clear, that doesn’t mean he’s innocent (I don’t think he is); it means that the crimes the government is in a position to prove, along with Abrego Garcia’s ambiguous criminal history, were not all that serious (certainly compared with gang leaders, including MS-13 members against whom the Trump DOJ has dropped cases). Coupled with the presumption of innocence in criminal cases, the Trump DOJ’s showing was insufficient to warrant pretrial detention. The case is also unusual in that, ordinarily, an illegal alien with a removal order is considered a flight risk worthy of pretrial detention; but the way the DOJ handled Abrego Garcia’s case convinced the court that he would stay, not abscond, to fight deportation.

Hence, Abrego Garcia was finally released last week on bail pending trial — with everyone knowing that a trial is unlikely to happen.

It was certain that the alien’s release would be short-lived. Trump officials had jauntily insisted that Abrego Garcia would never be released in the United States again. They were proved wrong, but the existing removal order has always given them the upper hand. They were never going to allow him to be on release for long.

Here is the thing to bear in mind: In the federal system, criminal prosecutions and immigration removal proceedings may be factually intertwined, but they are legally discrete. To repeat what I said when Abrego Garcia was indicted, the criminal charges didn’t solve the administration’s problem because it wants to deport him; and the indictment, even if he were convicted, does nothing to reverse the 2019 order prohibiting his deportation to El Salvador. On the other hand, if the administration can find another country to which it can lawfully deport Abrego Garcia — i.e., any country other than El Salvador as to which the administration can represent that he will not be subject to torture or other forms of persecution — then the criminal prosecution, or lack thereof, is beside the point.

While Abrego Garcia’s criminal prosecution is in Tennessee (the venue of the 2022 traffic stop), his immigration case is in Maryland. That is why he was directed to head to the latter after being released from the former. The immigration proceeding has been mired in litigation before Judge Paula Xinis (an Obama appointee) because the administration spent weeks fighting the directive to return him to the United States. Although her authority to do so was questionable, Judge Xinis admonished the government to give Abrego Garcia 72 hours’ notice before trying to deport him.

Fox News has reported that, on Friday, when he was released in Tennessee, Abrego Garcia’s lawyers were told by ICE officials that the administration intends to deport him to Uganda, a poor, landlocked country in East Africa. Earlier this summer, I covered the controversy over “third country” deportation — i.e., deporting a removable alien to a country that is willing to take him but to which the alien has no prior ties of nationality, residence, or travel. (See here, here, and here.) The bottom line is that Congress’s immigration laws authorize the executive branch to carry out such exportations as long as the alien will not be subject to torture or persecution. And under Supreme Court jurisprudence, the courts may not second-guess an executive determination that the alien will not face such abuse. (See Munaf v. Geren (2008).)

While Abrego Garcia does not want to be deported to Uganda, I doubt he can block his removal there. His lawyers are attempting to raise a legal issue by claiming that that the alien was offered the more appealing prospect (for him) of deportation to Costa Rica if he would agree to plead guilty to the charges in the indictment and that he is being punitively sent to Uganda because he refused. I don’t see that legal theory getting traction, though it may sound colorable (and, for all I know, it may even be true).

Again, the criminal prosecution and the immigration removal case are separate. Even if Abrego Garcia could prove that the government tried to coerce a guilty plea in the criminal case, the most he’d get out of it would be motions in the criminal case to dismiss the indictment or void any guilty plea. It would not disturb the government’s independent, immigration-law authority to execute the removal order. The government can simply drop the criminal case against Abrego Garcia, which would probably end any inquiry into whether it tried to coerce a guilty plea. Meantime, the court would have no authority to direct the government to conduct diplomatic negotiations with another country (say, Costa Rica) in order to find Abrego Garcia a more pleasant landing spot than Uganda. If the administration represents that it is satisfied that Uganda poses no risk of torture and related abuse to Abrego Garcia, I don’t see how a court could lawfully stop his deportation there.

There will be no shortage of noise about the resolution of Abrego Garcia’s case. And there’s little doubt that, with its brass-knuckles immigration-enforcement tactics, the Trump administration is squandering whatever goodwill it has with the courts, which could cost it down the road. All that said, though, Abrego Garcia is a removable illegal alien — and he is going to be deported, probably very soon.