A federal court in Tennessee is expected to order the release of Kilmar Abrego Garcia, whose deportation to El Salvador has become a flashpoint in President Donald Trump’s immigration enforcement, as he awaits a federal trial on human smuggling allegations.
However, Abrego Garcia is unlikely to be released since U.S. Immigration and Customs Enforcement would likely detain him and perhaps deport him.
On Sunday, U.S. Magistrate Judge Barbara Holmes refused the government’s plea to hold Abrego Garcia in jail pending his trial. She set a hearing on Wednesday to examine the terms of his release.
The US government has already filed an appeal to the judge’s ruling, requesting that the judge delay her anticipated release order.
On June 13, Abrego Garcia pleaded not guilty to smuggling allegations, which his defenders have described as an attempt to excuse his wrongful deportation in March to a renowned jail in El Salvador. That hearing was the Maryland construction worker’s first opportunity in a US courtroom to respond to the Trump administration’s charges.
The smuggling accusations arise from a speeding stop in Tennessee in 2022, when Abrego Garcia was driving a car with nine passengers. Despite suspicions of smuggling, he was released with a warning.
According to a federal indictment, Abrego Garcia smuggled hundreds of illegal immigrants into the United States, including minors and members of the murderous MS-13 gang. The probe began weeks after the Supreme Court ordered the administration to ease his repatriation from El Salvador due to rising public outcry.
Holmes said in her order Sunday that deciding whether Abrego Garcia should be freed is “little more than an academic exercise” because ICE will most certainly hold him. However, the judge stated that the government failed to demonstrate that Abrego was a flight risk, represented a threat to the community, or would interfere with proceedings if freed.
“Overall, the court cannot find from the evidence presented that Abrego’s release clearly and convincingly poses an irremediable danger to other persons or to the community,” the judge wrote.
Rob McGuire, the acting US attorney for the Middle District of Tennessee, said on June 13 that ICE’s expected attempt to deport him was one reason to keep him in jail.
The court then advised that the Departments of Justice and Homeland Security discuss whether the government’s priority should be to try him on criminal charges or deport him. There is no definite date for the trial.
According to Will Allensworth, an assistant federal public defender representing Abrego Garcia, an immigration judge’s decision issued in 2019 bans him from being deported to his home El Salvador because he fears a serious threat from gangs there.
The government could deport him to a third nation, but immigration officials would have to demonstrate that the third country was willing to keep him rather than just returning him to El Salvador, Allensworth said.
At the detention hearing, McGuire stated that collaborating witnesses accused Abrego Garcia of trafficking narcotics and guns, as well as assaulting the women he carried. Although he has not been charged with such crimes, McGuire believes they reveal Abrego Garcia to be a dangerous person who should be held in jail pending trial.
According to Ohio State University law professor César Cuauhtémoc García Hernández, most individuals in ICE detention facing criminal accusations are deported rather than being held in the US for trial.
Since Abrego Garcia entered the United States illegally, deportation could occur without a conviction.
García Hernández said that an immigration judge’s judgment can be challenged to the Board of Immigration Appeals. The board’s decision can then be challenged in a federal appellate court.
