ICE doesn’t plan to detain Kilmar Abrego Garcia again as long as judge’s order banning it stands

NASHVILLE, Tenn. (AP) — U.S. immigration officials do not plan to detain Kilmar Abrego Garcia again as long as a judge’s order banning it stands, according to a Tuesday court filing.

The plans by President Donald Trump’s administration are the latest in the saga over the Salvadoran citizen’s case that has become a lightning rod for both sides of the immigration debate as he fights to remain in the U.S. after a mistaken deportation to his home country, where he was imprisoned.

Immigration and Customs Enforcement did make clear they would detain Abrego Garcia if the order was lifted, Liana J. Castano, assistant director for field operations, wrote in the filing.

Trump officials have accused Abrego Garcia of being a member of the MS-13 gang, but he has vehemently denied the accusations and has no criminal record. The administration brought him back to the U.S. in June under a court order, but only after issuing an arrest warrant on human smuggling charges in Tennessee.

U.S. District Judge Paula Xinis earlier this month questioned whether government officials could be trusted to follow orders barring them from taking Abrego Garcia back into immigration custody or deporting him.

A Justice Department push to indict

Earlier Tuesday, a newly unsealed order in the criminal case against Abrego Garcia revealed that high-level Justice Department officials pushed for his indictment, calling it a “top priority,” only after he was mistakenly deported and then ordered returned to the U.S.

Abrego Garcia has pleaded not guilty in federal court to the human smuggling charges. He is seeking to have the case dismissed on the grounds that the prosecution is vindictive, arguing the Trump administration is targeting him as punishment for the embarrassment of his mistaken deportation.

To support that argument, he has asked the government to turn over documents that reveal how the decision was made to prosecute him in 2025 for an incident that occurred in 2022.

Abrego Garcia had recently been in immigration custody for three months before Xinis ordered his release on Dec. 11. In that time, the government said it planned to deport him to Uganda, Eswatini, Ghana and, most recently, Liberia.

In her Dec. 11 order, Xinis found that immigration officials had no viable plan to remove Abrego Garcia from the U.S. and said he could not be held indefinitely. She issued a separate order barring ICE from re-detaining him, at least for the time being. After a hearing on the issue, Xinis ordered the government to file the brief they released Tuesday outlining whether they planned to detain Abrego Garcia again.

Abrego Garcia’s human smuggling case stems from a 2022 traffic stop in Tennessee where he was pulled over for speeding with nine passengers in the car. State troopers discussed the possibility of human smuggling among themselves. However, he was ultimately allowed to leave with only a warning. The case was turned over to Homeland Security Investigations, but there is no record of any effort to charge him until April 2025, according to court records.

The newly unsealed Dec. 3 order from U.S. District Judge Waverly Crenshaw compelled the government to provide some documents to Abrego Garcia and his attorneys, although it does not give a lot of detail on their contents.

Claims of a ‘vindictive’ prosecution

Earlier, Crenshaw found that there was “some evidence” that the prosecution of Abrego Garcia could be vindictive. He specifically cited a statement by Deputy Attorney General Todd Blanche on a Fox News program that seemed to suggest that the Department of Justice charged Abrego Garcia because he had won his wrongful deportation case.

Rob McGuire, who was the Acting U.S. Attorney for the Middle District of Tennessee until late December, argued that those statements were irrelevant because he alone made the decision to prosecute, and he has no animus against Abrego Garcia.

In the unsealed order, Crenshaw writes, “Some of the documents suggest not only that McGuire was not a solitary decision-maker, but he in fact reported to others in DOJ and the decision to prosecute Abrego may have been a joint decision.”

The U.S. Attorney’s Office for the Middle District of Tennessee released a statement saying: “The emails cited in Judge Crenshaw’s order, specifically Mr. McGuire’s email on May 15, 2025, confirm that the ultimate decision on whether to prosecute was made by career prosecutors based on the facts, evidence, and established DOJ practice. Communications with the Deputy Attorney General’s Office about a high-profile case are both required and routine.”

The email referenced was from McGuire to his staff saying Blanche “would like Garcia charged sooner rather than later,” according to Crenshaw’s order.

The order also shows that Aakash Singh, who works under Blanche in the Office of the Deputy Attorney General, contacted McGuire about Abrego Garcia’s case on April 27, the same day that McGuire received a file on the case from Homeland Security Investigations. That was several days after the U.S. Supreme Court ruled in Abrego Garcia’s favor on April 10.

On April 30, Singh said in an email to McGuire that the prosecution was a “top priority” for the Deputy Attorney General’s Office, according to the order. Singh and McGuire continued to communicate about the prosecution. On May 18, Singh wrote to McGuire and others to hold the draft indictment until they got “clearance” to file it. “The implication is that ‘clearance’ would come from the Office of the Deputy Attorney General,” Crenshaw writes.

A hearing on the motion to dismiss the human smuggling case on the basis of vindictive prosecution is scheduled for Jan. 28.

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Associated Press journalist Hannah Schoenbaum contributed from Salt Lake City.

Travis Loller, The Associated Press