Kilmar Abrego Garcia is asking a federal judge in Tennessee to dismiss human trafficking charges against him as “vindictive prosecution” by the Trump administration over the illegal immigrant securing orders releasing him from jail and preventing ICE from rearresting him.
His lawyers said in a filing this week the Trump administration only pursued the migrant smuggling case against him after realizing it was losing a legal battle over his wrongful deportation to El Salvador.
Rather than bring him back, as ordered by a judge, the government stalled as it rushed to a grand jury where it secured an indictment to bring him back to face criminal charges, the lawyers said in a motion to dismiss.
“This case results from the government’s concerted effort to punish him for having the audacity to fight back, rather than accept a brutal injustice,” Sean Hecker, one of his lawyers, told the judge.
He asked U.S. District Judge Waverly Crenshaw Jr. to toss out the criminal case as a vindictive and selective prosecution.
Mr. Hecker acknowledged that this sort of challenge rarely succeeds.
“But if there has ever been a case for dismissal on those grounds, this is that case,” he said. “The government is attempting to use this case — and this court — to punish Mr. Abrego for successfully fighting his unlawful removal. That is a constitutional violation of the most basic sort.”
Mr. Abrego Garcia remains in pretrial detention right now — at his own request. But that is due to expire on Friday.
As it stands now, under Judge Waverly’s orders he will be released from jail in Tennessee, where he faces the criminal charges.
A federal judge in Maryland, Paula Xinis, has ordered Immigration and Customs Enforcement to return him to his status as a released illegal immigrant.
Judge Xinis said that’s what he was before March 12, when she says the government unlawfully arrested Mr. Abrego Garcia, and so that’s what he must be returned to.
His arrest and deportation three days later to El Salvador set off a national debate over President Trump’s deportation policies.
The administration said he was an MS-13 suspect and, given an outstanding 2019 deportation order against him, deserved to be booted.
The problem was he was sent to El Salvador, his home country, the one place an immigration judge ruled he couldn’t be sent because he faced the risk of torture or violence at the hands of another gang that rivals MS-13.
His defenders, including major figures in the Democratic Party, declared him a “Maryland man” and said his due process rights under the Constitution were violated by the deportation.
In a hearing before Judge Xinis, a Justice Department lawyer admitted the government bungled the deportation and said he was trying to get the Department of Homeland Security to bring Mr. Abrego Garcia back.
That lawyer was quickly booted off the case and later fired, and the administration went into battle more, resisting the judge all the way to the Supreme Court, which ruled that the government should try to “facilitate” Mr. Abrego Garcia’s return.
By that time, El Salvador officials said he was in their custody and couldn’t be sent back. Mr. Abrego Garcia’s lawyers called that a subterfuge.
Judge Xinis was trying to puncture the administration’s story when the Department of Justice, after a new secret investigation, announced it had won the indictment against Mr. Abrego Garcia on a migrant smuggling charge, stemming from a 2022 traffic stop in Tennessee where he was found with eight migrants in his vehicle.
Police at the time were convinced he was smuggling but let him go. Federal agents now say they determined he was a prolific smuggler, making repeated trips and raking in serious money driving illegal immigrants from the border deeper into the U.S.
Mr. Abrego Garcia has pleaded not guilty.
Prosecutors say he also may have been involved in a killing in El Salvador before coming here, and they continue to press their claims of gang membership — which his family has denied.
• Stephen Dinan can be reached at sdinan@washingtontimes.com.