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Lawyers for Salvadoran migrant Kilmar Abrego Garcia asked a federal judge in Nashville on Tuesday to dismiss a criminal case against him, arguing in a filing that the indictment handed down by the Trump administration amounts to a “vindictive” and selective prosecution.
The 35-page filing was submitted Tuesday to U.S. District Judge Waverly Crenshaw in the Middle District of Tennessee. It comes just two days before Abrego Garcia is slated to be released Friday from federal custody, where he was detained on human smuggling charges in May, immediately after being returned to the U.S. from El Salvador at the end of a months-long court fight.
Both Crenshaw and U.S. Magistrate Judge Barbara Holmes had determined that Abrego Garcia was eligible to be released from criminal custody pending trial, though Holmes agreed to stay his release for 30 days, at the request of Abrego Garcia’s attorneys, who cited fears that he would be detained and immediately deported.
Crenshaw, for his part, said in a 37-page ruling that the Justice Department “fails to provide any evidence that there is something in Abrego’s history, or his exhibited characteristics, that warrants detention.”
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He also poured cold water on the government’s repeated allegations that Abrego Garcia is a member of the MS-13 gang, a notion he described as “fanciful.”
It’s unclear whether Crenshaw will intervene and grant the motion to dismiss, filed late Tuesday.
But it comes as Abrego Garcia’s case has remained at the center of a months-long legal maelstrom, one that critics argue has allowed the Trump administration to test its mettle on immigration enforcement and its ability to slow-walk or evade compliance with federal courts.
The request by Abrego Garcia’s attorneys focuses squarely on the criminal indictment and investigation brought in the Middle District of Tennessee, which stems from a 2022 traffic stop in the state.
His lawyers argued Tuesday that the timeline of the investigation and the incitement show the “extreme lengths” the administration has gone to in order to “make a criminal case” against their client.
But Abrego Garcia’s case is deeply complicated, involving dueling, but inextricably intertwined civil and criminal cases that have played out over roughly six months in separate federal courts, across two continents, and in dozens of status hearings before various judges.
Any next steps in the case will therefore be fraught with political backlash.
Already, Friday will bring to a fore key deadlines in both the civil and criminal cases involving Abrego Garcia: His expected release from U.S. custody in Nashville at the end of a 30-day stay, will set into motion the restrictions on his removal that were imposed in a separate court order handed down by U.S. District Judge Paula Xinis in Maryland last month.
That order requires him to be transferred from Nashville to the nearest ICE detention facility in Maryland. Lawyers told the court they plan to escort him via private security, amid concerns about compliance from the Trump administration, as his family’s lawyers acknowledged to Fox News Digital in an interview last month.
ICE officials are also required to give Abrego Garcia 72 hours notice of the country of removal before they begin deportation proceedings, Xinis said in her order.
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Abrego Garcia’s case has prompted the firing or resignation of at least three government officials at DHS and the Justice Department, including the abrupt resignation of Ben Schrader, a former federal prosecutor and former chief of the criminal division for the U.S. Middle District of Tennessee.
Schrader resigned from his position at DOJ on the same day that the Justice Department secured the indictment against Abrego Garcia.
His lawyers used the ‘Hail Mary’ court filing this week to spell out, in careful detail, the timeline of the civil lawsuit and the Justice Department’s criminal investigation into Abrego Garcia, which kicked off while he was still detained in El Salvador, they noted.
“Kilmar Abrego Garcia has been singled out by the United States government,” his lawyers said Tuesday. “It is obvious why.”
The new filing recounts, in extemporaneous detail, the history of the Trump administration’s actions in Abrego Garcia’s nearly six-month legal saga, which has spanned two continents and multiple federal courts — making his case among the most high-profile immigration battles to date in Trump’s second term.
In the motion to dismiss, lawyers for Abrego Garcia ticked through the timeline of his removal from the U.S. in March, in Trump’s first wave of deportation flights to El Salvador, as well as his eventual return months later. They detailed the timing of when the Justice Department began its probe into Abrego Garcia, and when they secured a federal indictment against him.
They argued that the timing shows the criminal case was brought by the Trump administration “for avowedly vindictive reasons,” and, in their view, as a means of retaliation after Abrego Garcia’s family filed a lawsuit in Maryland challenging his removal.
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Abrego Garcia was returned to the U.S. in May — months after Xinis, the Maryland judge presiding over the civil case, ordered the Trump administration to facilitate his return to the U.S .— a ruling upheld by the Supreme Court in April.
The government’s lack of candor and continued stonewalling prompted Xinis to threaten potential contempt proceedings earlier this year.
Upon his return to the U.S. in May, Abrego Garcia was immediately slapped with two charges of human smuggling stemming from the 2022 traffic stop, prompting fresh concerns about the government’s next steps.
“We have heightened, ongoing concerns about the Trump administration’s compliance with any and all those involved” in the case, Chris Newman, an attorney who represents Abrego Garcia’s family, told Fox News Digital in an interview last month.
Abrego Garcia’s lawyers noted Tuesday that, in their view, the government “responded not with contrition, or with any effort to fix its mistake, but with defiance.”
“A group of the most senior officials in the United States sought vengeance: they began a public campaign to punish Mr. Abrego for daring to fight back, culminating in the criminal investigation that led to the charges in this case,” his lawyers said in the Tuesday filing.
“Rather than fix its mistake and return Mr. Abrego to the United States, the government fought back at every level of the federal court system. And at every level, Mr. Abrego won,” they added. “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.”
His lawyers urged Crenshaw to move quickly to dismiss the indictment.
The motion to dismiss the criminal case comes just days before Abrego Garcia is slated to be released from federal custody on Friday, after both U.S. Magistrate Judge Barbara Holmes and Crenshaw agreed to grant the 30-day stay requested by Abrego Garcia’s legal team.
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Trump officials, for their part, have said they will immediately seek to take Abrego Garcia into ICE custody and begin removal proceedings to a third country. They told Xinis’ court last month that the handoff would likely occur at the federal detention center where he is currently being held.
In the filing, lawyers noted the difficult burden of proof that the defense must satisfy, under the Federal Rule of Criminal Procedure, in order for a court to dismiss an indictment based on “selective or vindictive prosecution,” as their filing asks of Judge Crenshaw.
“Those motions are infrequently made and rarely succeed,” they noted.
“But if there has ever been a case for dismissal on those grounds, this is that case.”
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