Whew — it has been a busy day, down in Nashville’s federal courthouse.

And Mr. Abrego Garcia’s arguments are marching him nearer and nearer — to bail, and a trip home to Maryland. As it should be for any non-violent civil defendant. And the immigration matter is undoubtedly… a civil one. Here’s the latest from his able counsel, just filed an hour ago — and a bit of it:

…Because the government’s knee-jerk motions are premature and its motion to stay fails even to grapple with the four-factor test for determining whether a stay of release is appropriate, the motion to stay should be denied and the Court should set a briefing schedule on the government’s motion for revocation.

First, the government’s motions are premature, because there is not yet a release order to stay or revoke. No conditions of release have yet been set, and it is therefore impossible to consider whether any as yet unimposed conditions are insufficient to reasonably assure Mr. Abrego’s appearance and the safety of the community under 18 U.S.C. § 3142(e). As a result, despite its conclusory statements to the contrary, see ECF 45 at 1; ECF 46 at 3 & n.1, the government’s motions are not yet ripe for the Court’s review.

Second, even assuming Judge Holmes’s opinion could be stayed, the government does not even purport to apply the correct test for determining whether such a stay is proper. The government appears to take the position that if it disputes the Court’s view of the evidence, then it is entitled to a stay. But the Bail Reform Act contains no automatic stay provision. United States v. Abass, No. 25 Cr. 79, 2025 WL 1096795, at *2 (D.D.C. Apr. 11, 2025); see also United States v. Pavon-Andino, No. 25 Cr. 66, 2025 WL 446143, at *4 (D. Colo. Feb. 10, 2025) (“The government’s request [to stay an order of release] was without a legal basis, citing only to the general legal principle that the government may appeal this Court’s decision to the district court under 18 U.S.C. § 3145.”). Because a stay is “an intrusion into the ordinary processes of administration and judicial review,” it is not granted “as a matter of right.” Kentucky v. Biden, 23 F.4th 585, 593 (6th Cir. 2022) (internal quotation marks omitted). Instead, courts apply the traditional four-factor balancing test to determine whether a stay of a release order is appropriate: “(1) whether the petitioner ‘has made a strong showing that he is likely to succeed on the merits’; (2) whether the petitioner ‘will be irreparably injured absent a stay’; (3) whether issuance of a stay will ‘substantially injure’ other interested parties; and (4) ‘where the public interest lies.’”

United States v. Fox, No. 17-3673, 2017 WL 11546291, at *1 (6th Cir. July 5, 2017) (quoting Nken v. Holder, 556 U.S. 418, 433-34 (2009)); see also United States v. You, No. 20-5390, 2020 WL 3867419, at *1 (6th Cir. Apr. 22, 2020). Applying the correct test, the government’s arguments fail….

Updated: here on the night before this hearing, the AUSA has weighed in. It appears solely for a complete record.

Now you know — again. Onward, resolutely — to Wed. aft., in Music City. Grin.

नमस्ते

The Bail Reform Act plainly applies to Mr. Abrego Garcia. As the able USDC Judge just ruled overnight, he cannot be detained unless the government can prove one of several categories apply to his case. None of them do. So he is to appear this Wed. in court, where the judge may well hold that federal statutory commands about due process — and the Due Process clause of the Fourteenth Amendment itself… “trump” (hah!) any admin. law argument Miller and Noem and Rubio are making. We shall see.

In any event, here is the 51 page overnight opinion (which the Noemites have already appealed). And here is the order for the next hearing — in Music City, on this Wednesday:

…For the reasons discussed in the memorandum opinion entered separately, the United States’ motion for detention (Docket No. 8) is DENIED. A hearing will be held on Wednesday, June 25, 2025, at 2:00 p.m. (CDT) in Courtroom 3D, Fred D. Thompson U.S. Courthouse, 719 Church Street, Nashville, Tennessee, to review conditions of release and otherwise address any necessary issues.

The United States Marshal is DIRECTED to produce the defendant Kilmar Armando Abrego Garcia for this hearing.

It is SO ORDERED….

[And from the overnight opinion, at pages 23-25, now:]

…[T]he Court finds that the origination of the roster and the circumstances surrounding its creation are so remote and attenuated from Special Agent Joseph’s testimony that it cannot be given the conclusive weight for which it is offered by the government. The exhibit on which the government relies is a photograph taken by THP Trooper Foster, not by Special Agent Joseph — first layer of hearsay – of a document prepared at the request of THP Trooper Foster — second layer of hearsay — by the occupants of the vehicle driven by Abrego – third layer of hearsay. While the body camera footage — which is itself hearsay — includes the passing around of a piece of paper among the vehicle occupants at the direction of a THP trooper on the scene, the detail of the roster is visible only briefly in the body camera footage. A still shot of the roster detail from the body camera footage was also admitted as a government exhibit….

Additionally, defense counsel argued at the detention hearing that the 7 in the written birth year of 2007 appears to have been modified from a 1. That is not entirely without foundation, as there does appear to be some overwriting of the 7. Further, there is a question about whether the 7, even if not edited, is a number seven (7) or a number one (1). If a number one (1), then the individual with that birth date was born in 2001, not 2007. The number one (1) and the number seven (7) are among the letters, symbols, and numbers sometimes described as visually ambiguous characters because they can be indistinguishable in many types of print and especially in handwriting. See, e.g., Leslie Proctor, Misidentification of Alphanumeric Symbols, Patient Safety & Quality Healthcare (Inst. for Safe Med. Prac.) (Aug. 11, 2014) (collecting references). . . . A careful review of the entire roster reveals that another birthdate, 04 April 1998 or 1999, includes a handwritten 1 that also resembles a 7. If the individual was born in 2001, rather than 2007, he was not a minor at the time of the November 30, 2022 traffic stop….

Yes. Sanity is making a come-back. Grin. Stay cool….

नमस्ते