Judge sees no reason to keep holding Abrego Garcia pending criminal trial

A federal judge said there’s no reason to keep detaining Kilmar Abrego Garcia, who was mistakenly deported to El Salvador and later returned to the U.S., while he awaits trial on federal charges.

That’s according to a written order from U.S. District Judge Waverly Crenshaw of Tennessee on Wednesday that followed a hearing.

The hearing on Wednesday was meant to set conditions for Abrego Garcia’s release, including limitations on his travel. The judge on the case gave the government and Abrego Garcia’s lawyers more time to submit statements on his release conditions.

Even if he’s released from the custody of the Department of Justice, Abrego Garcia, a native of El Salvador, is likely to be immediately taken into custody by Immigration and Customs Enforcement. ICE has said he must be deported no matter what happens in his criminal trial.

Judge Crenshaw acknowledged that fact in his Wednesday opinion, and said it’s up to the government to mediate between agencies and decide what happens.

“The Executive Branch is in control of where Defendant Kilmar Armando Abrego Garcia awaits trial in this case,” Crenshaw wrote. “This is true because the Executive Branch can elect whether to hold him for pending deportation proceedings or not.”

Abrego Garcia has become one of the symbols of the Trump administration’s aggressive efforts to deport migrants, in a way that advocates say denies them due process to challenge their removal.

He returned to the U.S. earlier this month after a months-long legal battle to bring him back to his wife and children in Maryland, after he was deported to El Salvador in what a government lawyer admitted was a mistake.

The administration eventually flew him back, but immediately detained him on criminal charges.

The decision on Abrego Garcia’s release comes after a Sunday ruling by U.S. Magistrate Judge Barbara Holmes in Tennessee, who said he must be released on bail. Holmes found that “the government failed to meet its burden of showing a properly supported basis for detention on grounds that Abrego poses an irremediable danger to the community or is likely not to appear.”

The U.S. government sought a stay of Holmes’ ruling.

The government accused him of transporting migrants without legal status from Texas to other parts of the U.S. since 2016. He pleaded not guilty on June 13.

Holmes in a lengthy opinion over the weekend questioned the merits of the smuggling claims, saying the government’s accusations of how many alleged smuggling trips he took “approach physical impossibility.”

Likely to be deported

Judge Holmes and the government have acknowledged that Abrego Garcia can — and will likely — be detained by Immigration and Customs Enforcement, and potentially deported to a third country, no matter what happens in the criminal trial.

“Perhaps the sole circumstance about which the government and Abrego may agree in this case is the likelihood that Abrego will remain in custody regardless of the outcome of the issues raised in the government’s motion for detention,” Holmes wrote in an opinion on Sunday.

Abrego Garcia was born in El Salvador but had been living in Maryland, after entering the U.S. illegally in 2011. According to court documents, he was escaping gang death threats in his country.

He was deported in March back to his home country, despite a 2019 court order blocking his removal there. His attorneys say he had permission to work in the U.S.

The Trump administration conceded his removal was a mistake, but later accused Abrego Garcia of being a criminal and a member of the MS-13 gang — accusations his attorneys have denied.

NPR’s Marianna Bacallao contributed to this report.