Judge orders migrant deported in 'error' free from ICE custody with criminal case looming

A federal judge on Tuesday blocked the Trump administration from re-arresting Salvadoran migrant Kilmar Abrego Garcia into federal immigration custody — an update that comes just days before he is slated to appear in Nashville for a key court date in a separate criminal case.

U.S. District Judge Paula Xinis agreed to convert her previous emergency order blocking ICE from immediately re-detaining Abrego Garcia into a longer-term form of injunctive relief sought by his lawyers.  

She said Tuesday that the Trump administration failed to provide the court with any "good reason to believe" that they plan to remove him to a third country in the "reasonably foreseeable future." Instead, she said, they "made one empty threat after another to remove him to countries in Africa with no real chance of success."

The order clears the way for Abrego Garcia to participate in a key hearing in Nashville next week on whether a separate federal judge should dismiss his criminal case on the grounds of "vindictive" and selective prosecution.

ABREGO GARCIA REMAINS IN US FOR NOW AS JUDGE TAKES CASE UNDER ADVISEMENT

Xinis also said the government has "done nothing" to show the court that Abrego Garcia’s continued detention in ICE custody is "consistent with due process."

"Respondents have done nothing to show that Abrego Garcia’s continued detention in ICE custody is consistent with due process," Xinis said Tuesday. 

She ticked through a list of the Trump administration's efforts to remove Abrego Garcia to a four third countries in Africa country in the months between August, when Abrego was re-detained by ICE, and December, when Xinis ultimately ordered his release.

The Justice Department and Department of Homeland Security did not immediately respond to Fox News Digital's request for comment. 

Xinis said Tuesday that the administration "refused to procure Abrego Garcia’s immediate removal to Costa Rica," the location he had identified as his preferred third country of removal, in favor of what she said was attempted "phantom removals" by the government to send Abrego to "three (maybe four) African countries."

"Indeed, since Abrego Garcia secured his release from criminal custody in August 2025, respondents have made one empty threat after another to remove him to countries in Africa with no real chance of success," Xinis said. 

ABREGO GARCIA LAWYERS ASK US JUDGE TO ORDER RETURN TO MARYLAND AMID ONGOING CRIMINAL CASE

The Trump administration previously tried and failed to remove Abrego Garcia to the African countries of Liberia, Eswatini, Uganda and briefly, Ghana.

Xinis noted in late November that the government could not take any of those steps without the final notice of removal order, which she reiterated Tuesday in the memo order that the government had not obtained. 

"Thus, he must remain on the stringent release conditions already imposed by ICE and in the Tennessee Criminal Matter," Xinis said. 

US JUDGE VOWS TO RULE 'SOON' ON ABREGO GARCIA'S FATE AFTER MARATHON HEARING

Abrego Garcia's status has been at the center of a legal and political maelstrom since March, when he was deported to his home country of El Salvador, in violation of a 2019 court order and in what Trump officials acknowledge was an "administrative error." Xinis ordered then that Abrego Garcia be "immediately" returned to the U.S.

He was eventually returned to the U.S. in June, where he was taken into federal custody in Nashville and detained on human smuggling charges stemming from a 2022 traffic stop. 

The Justice Department later told Xinis it had opened the criminal investigation and presented it to a grand jury at the same time that Abrego Garcia was detained in a Salvadoran prison, and at the same time as government lawyers were telling the court that the U.S. was powerless to order his return. 

Next week's hearing in Nashville will be centered on a motion to dismiss Abrego Garcia's criminal case for "vindictive" and selective prosecution. 

The judge overseeing that case, U.S. District Judge Waverly Crenshaw, had ruled in October that Abrego Garcia had established a "reasonable likelihood" that the criminal case against him was the result of vindictive prosecution by the Justice Department.

Crenshaw had ordered the Trump administration to produce for the court internal documents and government witnesses to testify about its decision to bring the case. 

Senior DHS and Justice Department officials previously suggested they would appeal Xinis's orders. Trump officials have been sharply critical of Xinis and other federal judges presiding over deportation cages, whom they have repeatedly accused of overstepping their authority as a district judge.

"This order lacks any valid legal basis, and we will continue to fight this tooth and nail in the courts," DHS Assistant Secretary Tricia McLaughlin said in response to the court's earlier emergency order.