Attorneys for Kilmar Abrego Garcia are asking the federal judge overseeing his criminal case to throw out the human smuggling charges he’s facing, alleging the Justice Department singled him out for prosecution after he challenged his wrongful deportation to El Salvador earlier this year.
The request made Tuesday to US District Judge Waverly Crenshaw in Nashville comes several days before Abrego Garcia is expected to be released from criminal custody pending his trial on the federal charges.
The 35-page filing to Crenshaw accuses President Donald Trump’s Justice Department of prosecuting the criminal case as retribution for Abrego Garcia’s protracted legal fight against the government’s deportation of him in mid-March. The Maryland father of three was wrongly deported in violation of an earlier court order that expressly forbade his removal to El Salvador.
“Mr. Abrego responded to the government’s shocking, illegal conduct by filing a lawsuit. Rather than fix its mistake and return Mr. Abrego to the United States, the government fought back at every level of the federal court system,” his attorneys wrote in the filing. “And at every level, Mr. Abrego won. This case results from the government’s concerted effort to punish him for having the audacity to fight back, rather than accept a brutal injustice.”
The lawyers are asking Crenshaw, an appointee of former President Barack Obama, to throw out the two criminal counts brought against him earlier this year based on their assertion that he’s the subject of “selective or vindictive prosecution.”
“Those motions are infrequently made and rarely succeed. But if there has ever been a case for dismissal on those grounds, this is that case. 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,” they wrote in court papers. “The Indictment must be dismissed.”
The filing points to statements made by various administration officials – from Trump to Attorney General Pam Bondi – to make the case that his prosecution is intended to justify “officials’ false claims that deporting him to El Salvador had been the right thing to do.”
And it points out that the traffic stop that is at the center of the government’s case against him occurred years earlier – a fact his lawyers claim “is sufficient to establish discriminatory effect.”
“In total, it took the government 903 days after the traffic stop in this case – on November 30, 2022 – to obtain an indictment on May 21, 2025,” they wrote, adding that they couldn’t find any similar case within the federal circuit that hears appeals arising from Tennessee and several other states.
Abrego Garcia’s trial is set to begin in January 2026.
Last month, Crenshaw declined to undo a separate judge’s decision to let Abrego Garcia remain free while he awaits trial. But he’s remained behind bars after the magistrate judge in his case paused her release order for a month. That pause is expected to end later this week.
Meanwhile, the federal judge in Maryland overseeing the case Abrego Garica and his family brought against officials to secure his return to the US from El Salvador has barred the administration from quickly deporting him again once he’s released from criminal custody.
That ruling from US District Judge Paula Xinis, also an Obama appointee, is meant to do two things: Restore Abrego Garcia to the immigration position he was in before his deportation in mid-March and ensure his due process rights aren’t violated again should officials try to remove him from the US a second time.
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