Judges Deliver a One-Two Punch to DOJ in Abrego Cases

Judge Xinis bars ICE from detaining him in Tennessee, and Judge Crenshaw orders Mr. Abrego released on bail, calling DOJ’s evidence that he’s a member of MS-13 "fanciful."

If you’ve been following along, you know we’ve been waiting for two judges to rule on Kilmar Abrego’s civil and criminal cases. In Maryland, there was a hearing before Judge Xinis in which lawyers for Mr. Abrego argued that if he were to be released on bail in his criminal case in Tennessee, ICE would detain him and deport him to a third country. They asked the judge to return him to Maryland - as he was before he was wrongfully disappeared to El Salvador - and require DHS to provide adequate notice if they intend to remove him to a third country.

DHS has said in a recent memo that people removed to third countries would receive no notice if the government believed the detainee would not be harmed in the third country.

Meanwhile in Tennessee, Mr. Abrego’s criminal lawyers argued for his release, saying he is not a danger to the community, nor is he a member of MS-13 as DoJ contends.

I had posited in a live Substack discussion with Adam Klasfeld that the two judges must be communicating with one another. The fact that their rulings came down within minutes of one another seems to confirm that. Had Crenshaw released him without protections from Judge Xinis, the government might have immediately detained and disappeared him to a third country. But that’s not what happened.

Judge Xinis in Maryland ruled:

Pending before the Court is Plaintiffs’ Emergency Motion for an Order to Return Kilmar Abrego Garcia to the District of Maryland After Release in The Tennessee Criminal Proceedings. The issues are fully briefed, and, after an evidentiary hearing, the Court GRANTS the motion. The requested relief is necessary to preserve this Court’s jurisdiction and to ensure that Abrego Garcia receives the full injunctive relief previously ordered “to restore the status quo ante,” and consistent with the United States Supreme Court’s mandate that “his case is handled as it would have been had he not been improperly sent to El Salvador.” By Order of this Court, Defendants (1) are prohibited from taking Abrego Garcia into immediate ICE custody in Tennessee; (2) must restore him to his ICE Order of Supervision in Baltimore; and (3) if they initiate third-country removal proceedings, must provide seventy-two (72) business hours’ notice to Abrego Garcia and his counsel of the intended third country, as more fully detailed below.

Judge Crenshaw in Tennessee writes:

The Magistrate Judge has ordered Abrego’s release. The Government disagrees and has filed a Motion for Revocation of Release Order, which has been fully briefed. The Court held an evidentiary hearing on July 16, 2025. Based on the June 13, 2025 and July 16, 2025 evidentiary hearings, the Court will deny the Government’s Motion. Abrego should be released under conditions to be set by the Magistrate Judge.

Judge Crenshaw then outlines how the government’s single witness in the detention hearing - Mr. Joseph - seemed to get evolving answers out of the cooperating witnesses:

During the interviews with Agent Joseph, CW-1 provided additional information about Abrego’s purported affiliation with gangs, drugs, and guns during these interviews. For instance, in the fourth interview, CW-1 confirmed that he did not see any signs that Abrego was a member of MS-13. During the fifth interview, however, he remarked for the first time that Abrego would greet members of MS-13 in a “familial” manner, but stopped short of saying Abrego himself was a member. During the fourth interview with Agent Joseph, CW-1 stated that both he and Abrego liked guns, but would not carry them and Abrego would confiscate them from individuals he transported. In the fifth interview, CW-1 changed his story, stating that he would sometimes give guns to drivers and gave or sold one or two guns to Abrego, who carried them with undocumented individuals in the vehicle. As to drugs, CW-1 stated for the first time in his fifth interview that Abrego had been transporting marijuana in Houston during a trip.

I had also posited that Crenshaw would grant the DoJ a detention hearing, but release him based on the record. That’s exactly what happened here. And regarding his release, Crenshaw says the government has failed to prove that Mr. Abrego is a flight risk, or that he is a danger to the community. He writes:

The Government is no more successful in its efforts to demonstrate through clear and convincing evidence that Abrego is a danger to the community. The evidence that the Government relies on to show this—Abrego’s alleged participation in the human smuggling conspiracy, the protective orders imposed on him by Ms. Vasquez, the witness statements suggesting that Abrego had guns and drugs in his possession while smuggling, and the insinuation that Abrego is a member of MS-13—is a far cry from showing that Abrego is such a danger to others or the community that he cannot be released with conditions.

Nor does the Government’s poor attempts to tie Abrego to MS-13 get it there. Of the three witnesses Agent Joseph testified about that discussed Abrego’s purported affiliation with MS-13, the closest any of them come to stating that Abrego is a member of MS-13 is two witnesses stating he was “familial” with gang members and a third witness stating she “believed” him to be a member. Entirely absent from the record, however, are any indications that such “belief” is rooted in fact or that such “familial” nature came from his actual membership in or support of MS-13 rather than the simple fact that he, like many members of MS-13, is El Salvadorian. For instance, there is no evidence before the Court that Abrego: has markings or tattoos showing gang affiliation; has working relationships with known MS-13 members; ever told any of the witnesses that he is a MS-13 member; or has ever been affiliated with any sort of gang activity.

To the contrary, Agent Joseph presented testimony based on statements from cooperating witnesses that Abrego transported both Barrio 18 and MS-13 members alike, and was cordial with both during those trips. This cuts against the already slim evidence demonstrating Abrego is a member of MS-13. Based on the record before it, for the Court to find that Abrego is member of or in affiliation with MS13, it would have to make so many inferences from the Government’s proffered evidence in its favor that such conclusion would border on fanciful.

…the Government fails to show by a preponderance of the evidence—let alone clear and convincing evidence—that Abrego is such a danger to others or the community that such concerns cannot be mitigated by conditions of release. Given that the Government cannot meet this high bar, this factor weighs against detention.

He concludes:

The Government has failed to show on appeal that this case is one of the “carefully limited exception[s]” where detention pending trial is justified, entitling Abrego to his liberty in the meantime. Accordingly, the Government’s Motion for Revocation of Release Order will be denied. Abrego should be released upon the Magistrate Judge’s issuance of the release order.

So between these two orders, Abrego is free for now, and if ICE wants to detain him for deportation, they must do so in Maryland, and they must give him adequate due process if they intend to send him to a third country.

I will be going live on Substack around 3 PM PT today with Adam Klasfeld of All Rise News to discuss this further. As always, my content is free, but if you are able, please consider becoming a paid subscriber to support our work.

You can read the entire order from Judge Xinis here, and Judge Crenshaw’s full order here.

AP Photo/George Walker IV