ICE does not plan to detain Kilmar Abrego Garcia again while a federal judge’s order barring it remains in place, according to a Tuesday court filing cited in the case’s ongoing immigration fight. The filing says the restraint is tied to the judge’s order itself—rather than to a broader change in the government’s handling of Abrego Garcia—putting enforcement decisions under a fresh spotlight after an earlier mistaken deportation and subsequent return.
The dispute has become a lightning rod in immigration debates, in part because Abrego Garcia’s case has involved both an order that led to his return to the United States and a later criminal prosecution that he says is retaliation. The government has accused him of being connected to MS-13, and he has denied the accusations and told the court he has no criminal record.
In the immigration context, the Tuesday filing reflects that Immigration and Customs Enforcement would detain Abrego Garcia only if the order were lifted, according to the assistant director for field operations, Liana J. Castano, in the court submission. The same filing sits within the follow-up litigation triggered earlier by U.S. District Judge Paula Xinis, who this month questioned whether immigration officials could be trusted to follow orders that limit what they can do with Abrego Garcia.
Xinis earlier ruled that immigration officials had no viable plan to remove Abrego Garcia from the United States and ordered his release on Dec. 11, finding he could not be held indefinitely. She issued a separate order barring ICE from re-detaining him at least for the time being, and after a hearing she directed the government to file the brief that was released Tuesday describing its plans.
The underlying immigration timeline traces back to a mistaken deportation to El Salvador, followed by Abrego Garcia’s return to the U.S. under a court order. The government brought him back in June after issuing an arrest warrant on human smuggling charges in Tennessee, and the fight over detention and removal has continued as Abrego Garcia seeks to keep court restrictions in place.
Beyond the immigration proceedings, a newly unsealed order in Abrego Garcia’s federal criminal case adds another layer to the controversy. The unsealed order from U.S. District Judge Waverly Crenshaw said high-level Justice Department officials pushed for an indictment and characterized it as a “top priority” only after Abrego Garcia’s mistaken deportation and his return to the U.S., according to the reporting of what the order shows.
Abrego Garcia has pleaded not guilty to the federal human smuggling charges. He argues that the prosecution is vindictive and seeks dismissal, describing the case as punishment for the embarrassment of the mistaken deportation. He also asked the government to turn over documents related to how the prosecution decision was made for a 2025 case tied to an incident in 2022.
Court records described the criminal case as originating from a 2022 traffic stop in Tennessee, when state troopers discussed the possibility of human smuggling but Abrego Garcia was eventually allowed to leave with a warning rather than being charged at the time. The case was turned over to Homeland Security Investigations, and the court record referenced in the report says there is no record of charging activity until April 2025, weeks after the U.S. Supreme Court ruled in Abrego Garcia’s favor on April 10.
In the criminal case, Crenshaw previously said there was “some evidence” the prosecution could be vindictive, and the judge specifically cited a statement by Deputy Attorney General Todd Blanche on Fox News that seemed to suggest the Department charged Abrego Garcia because he had won his wrongful deportation case. When arguing against the vindictive-prosecution claim, the acting U.S. attorney for the Middle District of Tennessee, Rob McGuire—who served until late December—argued that the relevance of Blanche’s statements was limited because he said he alone made the decision to prosecute and that he had no animus against Abrego Garcia.
The unsealed order describes communications in which, according to the reporting of what Crenshaw wrote, a high-level Deputy Attorney General’s office expressed urgency about charging Abrego Garcia, including a May 15 email that Crenshaw said suggested McGuire was not the sole decision-maker. It also says an office under Blanche contacted McGuire about the case on April 27, the same day McGuire received the file from Homeland Security Investigations, and that later communications included “top priority” language and discussion of holding a draft indictment pending “clearance.”
The prosecution’s response, as described by the U.S. Attorney’s Office for the Middle District of Tennessee, said emails cited in Crenshaw’s order show the final decision was made by career prosecutors based on facts, evidence and established DOJ practice, and said communications with the Deputy Attorney General’s Office are required and routine for a high-profile case. Crenshaw wrote, according to the report of the unsealed order, that some documents suggest a joint decision to prosecute and not a single decision-maker.
A hearing on Abrego Garcia’s motion to dismiss the human smuggling case on vindictive-prosecution grounds is scheduled for Jan. 28, according to the court record described in the reporting. The scheduled proceeding will take place while the immigration-related dispute continues over whether ICE may act beyond the limits imposed by Xinis’s order.