Washington — Kilmar Abrego Garcia, the Salvadoran man who was deported back to his home country and then returned to the U.S. for federal prosecution, is set to remain in jail until at least Friday, as lawyers debate whether the Justice Department can stop him from being deported if he is released from federal custody pending his trial on human smuggling charges.
Lawyers for Abrego Garcia and federal prosecutors met in court in Nashville on Wednesday for a hearing to discuss the conditions of his release after U.S. Magistrate Judge Barbara Holmes on Sunday denied a Justice Department request to keep Abrego Garcia detained while awaiting a criminal trial.
After Wednesday’s hearing, Holmes ordered Abrego Garcia’s lawyers to file court papers laying out their arguments by noon on Thursday, and gave the government until noon on Friday to respond. Holmes said she will issue a ruling at some point after that. Until then, Abrego Garcia will remain in the custody of the U.S. Marshals.
In her decision over the weekend, Holmes said Abrego Garcia should be released, with certain conditions. But she noted, and lawyers for both sides acknowledged, that the Salvadoran man would likely be detained by federal immigration authorities for removal proceedings if released on criminal charges.
The Justice Department has appealed Holmes’ release order, but a federal district judge on Wednesday declined to pause that decision.
The judge, Waverly Crenshaw, set a hearing for July 16 to consider the government’s bid to revoke the release order.
“The government emphasizes that absent a stay, it will incur the irreparable injury of Abrego possibly facing deportation from the United States pursuant to the immigration detainer lodged against him by DHS,” Crenshaw wrote in his decision denying the Justice Department’s stay request. “If deported, the government argues, the Department of Justice will be deprived of the opportunity to pursue its criminal charges against Abrego. At bottom, the government asks the court to save it from itself because it may suffer irreparable harm completely of its own making.”
Abrego Garcia was charged with two counts arising out of what federal prosecutors said was his participation in a yearslong conspiracy to smuggle migrants into the U.S. unlawfully. He pleaded not guilty to both charges at a hearing earlier this month.
Holmes’ acknowledged in her order that Abrego Garcia was likely to remain in custody — either of the U.S. Marshals or Immigration and Customs Enforcement — regardless of how she ruled on the detention request, and said her analysis was “little more than an academic exercise.” But in a filing with the court, the Justice Department said that a release of Abrego Garcia into custody of immigration authorities “poses potentially irreparable problems” for the prosecution of his case and the public.
If the court refuses to pause Holmes’ release order and Abrego Garcia is moved to ICE custody and deported, “the prosecution would lose the meaningful opportunity to try its case,” prosecutors said, acknowledging that his potential deportation would not be “instantaneous.”
But Abrego Garcia’s lawyers called the Justice Department’s concerns about his potential deportation while awaiting trial a “possible self-inflicted injury by its executive branch colleagues at the Department of Homeland Security.”
Abrego Garcia’s case garnered significant public attention after a Trump administration immigration official acknowledged in a court filing that his deportation to El Salvador was an “administrative error.” A Salvadoran native, Abrego Garcia came to the U.S. illegally in 2011 and has resided in Maryland for more than a decade.
He was placed on a removal flight in March as part of President Trump’s crackdown on illegal immigration and promise of mass deportations, and sent with hundreds of other migrants to El Salvador. Abrego Garcia, however, had been granted a legal status known as withholding of removal in 2019, which prevented the Department of Homeland Security from deporting him to his home country of El Salvador because of likely persecution by gangs.
A federal judge in April ordered the Trump administration to facilitate Abrego Garcia’s return to the U.S., and that portion of her order was affirmed by the Supreme Court later that month. While the Trump administration resisted efforts to bring Abrego Garcia back to the U.S. for weeks, it finally did so earlier this month so he could face prosecution for alleged human smuggling.
A federal grand jury in Tennessee returned the indictment against Abrego Garcia in late May. The charges stem from a November 2022 traffic stop in Tennessee, when he was pulled over by the state Highway Patrol for speeding. Abrego Garcia had at least eight people in the car with him when he was stopped and said they had been performing construction work in St. Louis, according to body camera footage released by the Highway Patrol.
An April report from the Department of Homeland Security regarding the incident said Abrego Garcia was suspected of human trafficking, though he was not arrested or charged with any crime. He was given a warning citation by the Tennessee officers.
Abrego Garcia was arraigned earlier this month, and Holmes held a hearing to determine whether he should be detained or released ahead of his trial.
In finding that Abrego Garcia should be released, the magistrate judge said that she “cannot find from the evidence presented that Abrego’s release clearly and convincingly poses an irremediable danger to other persons or to the community.”
Holmes called the government’s evidence “unreliable” and claims of Abrego Garcia’s alleged membership in the gang MS-13 “simply insufficient,” as government cooperating witnesses gave an ICE investigator “conflicting” information.
The judge said the government put forth “hearsay statements” from cooperating witnesses who stand “to gain something from their testimony in this case.”
One of the cooperators has two felony convictions, has been deported five times and was released early from a 30-month federal prison sentence for human smuggling for providing information to the government in Abrego Garcia’s case, Holmes wrote. He is also the purported “domestic leader” of the human smuggling organization that prosecutors allege Abrego Garcia participated in, the judge said.
The second cooperator is an “avowed member of the human smuggling organization,” according to the judge, and is in custody charged with a federal crime “for which he hopes to be released in exchange for” his testimony before the grand jury. Holmes said the second man has also been deported before and has now requested deferred action on his removal in exchange for his cooperation with the government in Abrego Garcia’s case.
Holmes said their statements about Abrego Garcia — namely regarding his alleged smuggling trips from Maryland to Houston and back — “defy common sense.”