Kilmar Abrego Garcia can’t be detained by ICE after he’s released from custody — which won’t be for at least another 30 days

Suspected MS-13 gang member Kilmar Abrego Garcia will remain in a Tennessee jail for at least another month and cannot be immediately detained by Immigration Customs Enforcement (ICE) officers when he’s released, a pair of judges ordered Wednesday in two separate rulings. 

Maryland District Judge Paula Xinis ordered that ICE must wait a minimum of 72 hours after Abrego Garcia is released from criminal custody in Nashville before initiating efforts to detain and deport the Salvadoran to a third country, such as Mexico or South Sudan, where he is not originally from. 

Xinis, an appointee of former President Barack Obama, further ordered that Abrego Garcia be returned to the supervision of an ICE field office in Baltimore upon release, the same office that had been keeping tabs on him prior to his arrest in mid-March. 

The judge noted that the Trump administration may begin the process of removing Abrego Garcia, who is in the country illegally, under those terms. 

“Once Abrego Garcia is restored under the ICE Supervision Order out of the Baltimore Field Office, Defendants may take whatever action is available to them under the law,” Xinis wrote. 

“So long as such actions are taken within the bounds of the Constitution and applicable statutes, this Court will have nothing further to say,” she added. 

Xinis argued that the three-day wait would allow Abrego Garcia time to raise credible fears of removal to a third country and seek relief. 

The judge also claimed the 72-hour period was needed  “to prevent a repeat of Abrego Garcia’s unlawful deportation to El Salvador by way of third-country removal.”

A Justice Department official informed Xinis during a hearing last month that the Trump administration plans to take Abrego Garcia into custody and deport him to a third country if he’s released from criminal detention in Tennessee, where he is awaiting trial on human smuggling charges. 

There is a court order barring the government from deporting Abrego Garcia to his native El Salvador, which the Trump administration flouted earlier this year when it sent the alleged gang member to a notorious maximum security prison in the Central American country – sparking a political firestorm and a flurry of legal action. 

Abrego Garcia was returned to the states in June to face the human smuggling charge. 

Shortly after Xinis’ order, Tennessee Magistrate Judge Barbara Holmes paused Abrego Garcia’s release from a Nashville jail for 30 days. 

Abrego Garcia’s attorneys had requested the stay out of concern that removal proceedings would commence once he’s released. 

The Trump administration also agreed that Abrego Garcia should remain in custody as it appeals another court order, from Tennessee District Judge Waverly Crenshaw, who found that his criminal case does not warrant continued detention. 

“The pieces of evidence the Government cites to, taken alone or together, warrant a finding that Abrego is, at best, a low risk of nonappearance,” Crenshaw wrote in his order allowing Holmes to release Abrego Garcia pending trial. “The Court agrees with Abrego that the nature of the crimes he is accused of do not, on their own, fall within the categories of crimes Congress specifically enumerated as warranting a presumption of detention.”

Abrego Garcia, who pleaded not guilty in the human smuggling case last month, has been awaiting his release on bail.