Whatever his gang connections may be, Abrego would have been deported months ago were it not for government gamesmanship.
Whatever his gang connections may be, Abrego would have been deported months ago were it not for government gamesmanship.
T he federal criminal and immigration proceedings involving Kilmar Abrego Garcia (“Abrego”) are among the strangest we’ve ever encountered. They are defined by the Trump administration’s barely concealed vindictiveness against a man whom officials have branded a member of the savage MS-13 criminal gang — an allegation that has never even been formally charged, much less proved, notwithstanding Vice President JD Vance’s public claim that Abrego is “a convicted MS-13 gang member.”
As I noted in a post this week, that vindictiveness has now resulted in the dismissal of the criminal charges against Abrego. The alien-smuggling indictment was thrown out last week by a federal court in the Middle District of Tennessee. Judge Waverly D. Crenshaw Jr., an Obama appointee, issued the ruling in a 32-page memorandum opinion. To cut to the chase, Judge Crenshaw concluded that, in order to punish Abrego for pursuing his procedural rights after the Trump administration illegally deported him, the Trump DOJ indicted Abrego based on years-old conduct the feds had previously decided not to charge.
Meantime, on the immigration front, the administration continues to push to deport Abrego to Liberia, a country in western Africa to which Abrego has no ties. He has said he is willing to be deported to Costa Rica — a Central American country relatively close (geographically, linguistically, and culturally) to his native El Salvador — which has indicated it is willing to take him. That’s seemingly important because, if for some reason a removable alien cannot be deported to his native country, federal immigration law bends in favor of deporting the alien to a country of his preference, if it is willing to take him.
Yet, as I detailed toward the end of last year (see here, collecting prior posts on this controversy), the government has unsuccessfully tried, over Abrego’s objections, to deport him to the African countries of Uganda, Eswatini, and Ghana (all of which refused to take him), and now Liberia. In so doing, the administration in my view has been using the immigration case to pressure Abrego on the criminal case — dangling Costa Rica as a possible destination if he’d plead guilty to the criminal charges, which have now been dismissed.
To recap, Abrego is an illegal alien. He was originally detained by the first Trump administration after an arrest in Maryland, where it’s alleged that he was in the company of MS-13 members. In opposing bail pending resolution of removal proceedings, the Justice Department argued that Abrego was a member of that notorious gang. A DOJ immigration judge detained him, but prosecutors never charged him with gang offenses; courts have since described the government’s evidence on this score as scant (heavily dependent on an extravagant interpretation of his clothing, including a Chicago Bulls cap).
A DOJ immigration judge later found Abrego removable but granted him protection against being deported to El Salvador, based on his (not very compelling) claim that he feared persecution. In a bizarre twist, while the immigration judge granted Abrego withholding of removal to El Salvador, no order of removal was apparently issued. (Such an order would have enabled Abrego to be deported elsewhere.) Meantime, the immigration judge permitted Abrego to be released to live and work in Maryland; the first-term Trump DOJ neither objected nor appealed. (Without diverting for a lengthy, technical legal explanation, suffice it to say that, at the time, it was common for illegal aliens to be released while their removal proceedings were pending, often for years, despite statutory law mandating that they be detained.)
Notwithstanding the lack of an order of removal, Abrego was arrested in Maryland on March 12, 2025, as part of the newly installed second Trump administration’s push to deport illegal aliens. Three days later, despite the prohibition on his deportation there, Abrego was transferred with scores of other aliens to El Salvador, under an agreement between the Trump administration and the Salvadoran government. He was detained in a special anti-terrorism prison infamous for human rights abuses, as even the U.S. State Department has acknowledged. Abrego claims he was beaten, sleep-deprived, and otherwise abused in the weeks he spent there.
The Trump DOJ admitted that Abrego’s deportation to El Salvador was an error. Erez Reuveni, the DOJ lawyer who publicly admitted the error in court, was fired and has since maintained that his superiors ordered him to argue to the court that Abrego was an MS-13 member and a terrorist; he declined to do so, he says, because these allegations were not factually supported. In any event, the solicitor general’s office acknowledged in a brief filed in the Supreme Court that Abrego should not have been deported to El Salvador. (See Noem v. Abrego Garcia [Supreme Court, April 10, 2025]: “The United States acknowledges that Abrego Garcia was subject to a withholding order forbidding his removal to El Salvador, and that the removal to El Salvador was therefore illegal.”)
Abrego’s family brought a civil suit on his behalf in Maryland federal court, and Judge Paula Xinis (an Obama appointee) ordered the administration to facilitate his return — a ruling that was substantially upheld by the Fourth Circuit and the Supreme Court. Judge Xinis became exasperated when it emerged that the administration was ignoring her order. Top administration officials countered that because Abrego was in the custody of a foreign government, it lacked authority to bring him back.
In the interim, however, the Trump DOJ reopened a long-dormant criminal investigation stemming from a 2022 traffic stop in Tennessee, during which Abrego appeared to be transporting illegal aliens. At the time, the local authorities notified the feds, but no action was taken to pursue charges. Abrego was not even arrested.
Yet, on May 21, 2025, Abrego was indicted on alien-smuggling charges in Tennessee federal court. (I analyzed the indictment at the time, concluding that there might be sufficient evidence to convict but that the case was thin and confusing on the matter of Abrego’s connection to MS-13.) Evidence presented in court established that the prosecution was spearheaded and closely supervised, not by the district U.S. attorney but by the office of then–Deputy Attorney General Todd Blanche in Main Justice — which is highly unusual. Blanche is now the acting attorney general.
Once the indictment was filed, the administration, which had previously represented that it could not return Abrego from El Salvador, suddenly secured his return and had him detained. In a Fox News interview, Blanche unabashedly asserted that the Justice Department had opened a criminal investigation of Abrego after Judge Xinis questioned the administration’s decision to deport him illegally.
As Judge Crenshaw observed, the government elected not to call Blanche as a witness at the hearing on Abrego’s selective-prosecution motion. Hence, the court found “unrebutted” Blanche’s “remarkable statements [that] could directly establish that the motivations for Abrego’s criminal charges stem from his exercise of his constitutional and statutory rights.”
To develop the charges against Abrego, the Justice Department cut an immunity deal with Jose Ramon Hernandez-Reyes, the registered owner of the vehicle in Abrego’s 2022 traffic stop. Hernandez-Reyes is an illegal alien and a thrice-convicted felon who has been deported multiple times. When he negotiated the deal to testify against Abrego, he was serving a criminal sentence for illegal reentry after deportation. Still, the DOJ allowed Hernandez-Reyes to be released to a halfway house rather than, as is standard practice, to place such an alien in immigration custody and deport him at the conclusion of his criminal sentence. Hernandez-Reyes told the government that he had hired Abrego in approximately 2016 to transport illegal aliens — approximately 600 per year, for which he said Abrego was paid over $90,000 annually.
The dispositive issue in a selective-prosecution claim is not whether a defendant is guilty; the inquiry is whether the government would have brought a prosecution absent vindictive motive to punish a defendant for standing on his legal rights. Judge Crenshaw found that Abrego had presented sufficient evidence — in particular, Blanche’s public statements — to establish a presumption of vindictiveness and that the government had failed to rebut this presumption.
The Trump Justice Department, as is its custom, slammed the judge who ruled against it as an “activist” who had “placed politics above public safety.” It vowed to appeal. While selective-prosecution law is very favorable to the government — successful motions are exceedingly rare — such an appeal would be tough for the DOJ to win. That’s not just because of Crenshaw’s exacting factual findings but because it is clear that prosecutors did not truly want to try the case. The DOJ continued to press for Abrego’s deportation in the immigration proceedings even as the pretrial motions were being litigated in the criminal case; government lawyers told Xinis that he would be deported if the government could accomplish that while the criminal case was pending. (A federal criminal case may not proceed in the absence of the defendant.) This contradicted the public assertion by then–Attorney General Pamela Bondi, after the indictment was filed, that Abrego would be deported only after the conclusion of the criminal proceedings, including any sentence imposed.
Abrego is currently released on bail. He was granted bail in the criminal case last year and was similarly released by Judge Xinis while the lawsuit related to his potential removal plays out — with the court barring his deportation to Africa and the administration thus far unwilling to deport him to Costa Rica.
As I’ve said a number of times, Abrego may well be a member of MS-13. But the government has never proved that — again, despite the huffing and puffing in the indictment, the DOJ did not charge him with gang membership or a gang crime. No, Abrego should not have been deported to El Salvador, but mistakes happen all the time; what was offensive was the administration’s representation to the courts that it could not easily secure his return from that country. After all, President Trump bragged that he could get Abrego back by making a single phone call to Salvadoran President Nayib Bukele — but refused to make such a call, insisting that Abrego was an MS-13 member.
Whatever his gang connections may be, Abrego would have been deported from the United States months ago were it not for government gamesmanship.