Now it is only Abrego Garcia's own motion that keeps him (safely) in non-ICE federal custody in Nashville. He will very likely walk free in 30 days, despite any Noem appeals.
Judges Xinis and Crenshaw have ruled, just the way we said they would. Even so -- it never should have happened. Period. Here's the able USDC Judge Paula Xinis order of 18 pages, and a bit:
. . .[C]onsidering that these same [Noemite] Defendants not only "screwed up" once by unlawfully expelling Abrego Garcia, Abrego Garcia v. Noem, No. 25-1345, 2025 WL 1021113, at *6 (4th Cir. Apr. 7, 2025) (Wilkinson, J., concurring), but also refused to make "what was wrong, right," Abrego Garcia v. Noem, No. 25-1404, 2025 WL 1135112, at *1 (4th Cir. Apr. 17, 2025). . . . The detainer cites "ongoing removal proceedings" as the basis for holding him. But by Defendants' own admission, no such proceedings exist. Abrego Garcia's withholding of removal has been final since 2019. And if Defendants wish to revisit withholding, they must move to reopen such proceedings in Baltimore, which has not been done. Nor are there any other "ongoing removal proceedings" because Defendants have not yet made any decisions as to what they will do next. ECF No. 235 at 51:21-24 (The Court: "And you have nothing as to which road you'll take if he's released next week?" Khojasteh: "I do—we do not, Your Honor, and neither does Giles."). Thus, the detainer appears infirm on its face and cannot impede Abrego Garcia's return to ICE supervision in Baltimore. Cf. Abrego Garcia v. Noem, No. 25-1345, 2025 WL 1021113, at *2 (4th Cir. Apr. 7, 2025) (Thacker, J., concurring) (explaining that only actions within the Attorney General's lawful discretion fall under the jurisdictional bar in 8 U.S.C. § 1252(g)) (citing Reno, 525 U.S. at 482 1999)); see also id. at *3 (noting that where Executive action violates the law, it may be treated as "null and void") (quoting Powell v. McCormack, 395 U.S. 486, 506 (1969)).
Separately, the requested notice is necessary to prevent a repeat of Abrego Garcia's unlawful deportation to El Salvador by way of third-country removal. Defendants have taken no concrete steps to ensure that any prospective third country would not summarily return Abrego Garcia to El Salvador in an end-run around the very withholding order that offers him uncontroverted protection.
Giles testified that he knows of "no reassurances" obtained from cleared countries that aliens will not be promptly re-deported to their native countries despite valid withholding orders. ECF No. 234 at 112. Nor is this fear far-fetched. Defendants have already wrongly deported at least one other alien who was immediately refouled to the country from which he had a valid withholding order. Given this, requiring Defendants to give seventy-two hours' notice to Abrego Garcia and his counsel will ensure he has the time to raise any credible fears through the appropriate channels in the immigration process. . . .
In sum, the Court concludes that it must accord modest relief that ensures the fulfillment of this Court's injunction and protects Abrego Garcia from re-deportation without due process.
Thus, for the reasons stated above, Defendants are hereby ORDERED (1) to not take Abrego Garcia into ICE custody in Tennessee and to restore him to his ICE Order of Supervision out of the Baltimore Field Office; and (2) should Defendants commence third-country removal proceedings against Abrego Garcia, Defendants must transmit immediate written notice to Abrego Garcia and all counsel of record in this case of the intended third country at least seventy-two hours prior to commencing removal so that Abrego Garcia may assert claims of credible fear or seek any other relief available to him under the law or Constitution. . . .
[And from Judge Crenshaw in Music City, today:]
Because the law's "default position. . . is that a defendant should be released pending trial," Stone, 608 F.3d at 945, and because three of the four § 3142(g) factors counsel release, the Court agrees with the Magistrate Judge that the Government has failed to carry its burden of showing that no condition or combination of conditions will reasonably assure Abrego's appearance or the safety of others. ' Accordingly, Abrego should be released with the conditions imposed by the Magistrate Judge during the June 25, 2025 hearing.
The Government has failed to show on appeal that this case is one of the "carefully limited exception[sl" where detention pending trial is justified, entitling Abrego to his liberty in the meantime. Salerno, 481 U.S. at 754. Accordingly, the Government's Motion for Revocation of Release Order (Doc. No. 45) will be denied. Abrego should be released upon the Magistrate Judge's issuance of the release order. . . .
Smoke that Kristi. . . yup, lying in court has consequences. Out.
नमस्ते
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