Jennifer Vasquez Sura, wife of Kilmar Abrego Garcia, speaks at a press conference July 16 before the Fred D. Thompson Federal Courthouse in Nashville. (Photo by John Partipilo/Tennessee Lookout)
NASHVILLE — Lawyers for Kilmar Abrego Garcia are asking a federal judge in Tennessee to dismiss human smuggling charges against him, calling the case a clear example of “selective and vindictive prosecution” by the Trump administration.
In a motion filed late Tuesday, just days ahead of Abrego’s expected pretrial release, the attorneys conceded their argument to dismiss the case is “infrequently made and rarely succeeds.”
“But if there has ever been a case for dismissal on those grounds, this is that case,” they wrote. “The government is attempting to use this case — and this Court — to punish Mr. Abrego for successfully fighting his unlawful removal. That is a constitutional violation of the most basic sort.”
The government has not yet filed a legal response. “The United States’ position is set forth in Mr. McGuire’s statements in court and our pleadings,” a spokesperson for Acting U.S. Attorney Robert McGuire said in an email Wednesday.
The 35-page petition seeking to dismiss all charges narrates a chain of events that began with Abrego’s detention by Immigration and Customs Enforcement agents in March, while driving with his son in Maryland, through his deportation days later to a Salvadoran prison. Abrego remained for months in the notorious maximum security CECOT prison, despite the admission by a government attorney he had been sent there in error.
Abrego subsequently said he was tortured while in CECOT.
‘A wide-ranging and unprecedented retribution campaign’
Attorneys for Abrego challenged his removal to El Salvador for lack of due process in a separate lawsuit filed in federal court in Maryland, where the 29-year-old sheet metal apprentice had been living with his wife and children.
“The government did not take steps to fix its mistake,” his Tennessee lawyers wrote Tuesday. “Instead, in response to his lawsuit — and to the substantial publicity it received — the government undertook a wide-ranging and unprecedented retribution campaign against Mr. Abrego.”
The human smuggling charges brought against Abrego in Tennessee are part of that campaign, his lawyers argued.
A Tennessee grand jury in June returned the indictments for “conspiracy to unlawfully transport illegal aliens for financial gain” and “unlawful transportation of illegal aliens for financial gain.” Prosecutors contend Abrego participated in a national scheme to move immigrants who entered the United States illegally to points around the country. Abrego, as his attorneys refer to him in legal filings, has pleaded not guilty.
The charges are tied to a 2022 traffic stop in Putnam County, Tenn., where Abrego was pulled over for speeding with nine passengers in the back of his car. Abrego was neither ticketed nor arrested in the stop.
A Department of Homeland Security special agent later testified he was not tasked with investigating the Tennessee traffic stop until April 28 of this year. By then, a Maryland federal judge had ordered the government to facilitate Abrego’s return to the U.S. and the Supreme Court had upheld the decision.
The government returned Abrego to Tennessee to face charges on June 6.
Case draws national scrutiny
The case generated widespread public scrutiny of the Trump administration’s immigration crackdown tactics during his initial months in office, which were criticized for undermining due process rights guaranteed to both citizens and noncitizens.
Abrego, a Salvadoran national who entered the United States illegally as a teenager, is subject to a 2019 immigration court order that prohibits the government from deporting him to El Salvador, where he says he faces threats of gang violence.
After his wrongful deportation, administration officials, including President Donald Trump, singled out Abrego in their public comments, calling him a “gangbanger,” “monster,” “illegal predator,” “illegal alien terrorist,” “wife beater,” and “human trafficker.”
Abrego’s attorneys accused the administration of a public smear campaign intended to paper over its embarrassment over his wrongful deportation and to retaliate against his legal efforts to assert his due process rights. Abrego has denied gang affiliation.
The administration’s public statements, Abrego’s attorneys argued, bolster their claims that the prosecution against him is retaliatory.
“The unprecedented public pronouncements attacking Mr. Abrego for his successful exercise of constitutional rights by senior cabinet members, leaders of the DOJ, and even the President of the United States, make this the rare case where actual vindictiveness is clear from the record,” they wrote.
Lawyers seek to curb Trump administration comments about the case
Earlier this month, Abrego’s attorneys sought, for a second time, a court order restricting government officials’ remarks about the case as prejudicial and contrary to standard court rules.
In response, U.S. District Judge Waverly Crenshaw, who presides over the Tennessee criminal case, directed all “counsel and those working with counsel” to note in their public communications that Abrego is presumed innocent.
“Our Constitution requires that Abrego is presumed innocent unless and until proven guilty beyond a reasonable doubt by a jury,” Crenshaw wrote in his July 31 order.
Separately, in response to Abrego’s attorney’s waiver of the right to a speedy trial, the court set a trial date of Jan. 27.
Abrego remains in the custody of the U.S. Marshals, who have jurisdiction over pretrial detainees in federal cases.
Abrego has already been cleared for release pending trial by a Tennessee magistrate, an order placed on hold at the request of his attorneys amid uncertainty over whether federal immigration officials intend to detain or deport him to a “third country.”
Abrego’s attorneys on Tuesday requested the magistrate move forward with releasing him Friday, the day the hold expires.
The attorneys noted a Maryland federal judge has barred the government from taking Abrego into immigration custody and required immigration officials to provide 72-hours written notice before removing him to a third country.
His Tennessee lawyers, Sean Hecker and Rascoe Dean, also wrote they are “retaining a private security firm that has experience providing court-approved pre-trial transportation and security services in criminal cases to transport Mr. Abrego from Tennessee to Maryland upon release.”
The lawyers requested details about the security arrangements be kept under seal “in order to protect Mr. Abrego’s safety.”
A federal magistrate on Wednesday set a tentative hearing for Friday if prosecutors oppose any of the conditions of Abrego’s release sought by his attorneys.
– This story first appeared in Tennessee Lookout, which is part of States Newsroom, a nonprofit news network supported by grants and a coalition of donors as a 501c(3) public charity. Tennessee Lookout maintains editorial independence. Contact Editor Holly McCall for questions: info@tennesseelookout.com.
