Jail Release Overturned for Kilmar Abrego Garcia as ICE Plans Detention Despite Judge's Order

A Tennessee judge ordered the release of Kilmar Abrego Garcia, who was mistakenly deported and then returned to the US to face human smuggling charges. However, he is not expected to be allowed to go free as ICE plans to detain him despite the judge's order.

At his June 13 detention hearing, prosecutors said that if Abrego Garcia were released on the criminal charges, U.S. Immigration and Customs Enforcement would take him into custody and he could be deported before he has a chance to stand trial.

U.S. Magistrate Judge Barbara Holmes acknowledged in her ruling Sunday that determining whether Abrego Garcia should be released is "little more than an academic exercise" because ICE will likely detain him. However, she wrote that everyone is entitled to the presumption of innocence and "a full and fair determination of whether he must remain in federal custody pending trial."

Holmes wrote that the government failed to prove that Abrego was a flight risk, that he posed a danger to the community or that he would interfere with proceedings if released.

“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.

Abrego Garcia has pleaded not guilty to the smuggling charges that his attorneys have characterized as an attempt to justify the deportation mistake after the fact.

The acting U.S. attorney for the Middle District of Tennessee, Rob McGuire, argued on June 13 that the likely attempt by ICE to try to deport him was one reason to keep him in jail.

However, Holmes said then that she had no intention of “getting in the middle of any ICE hold.”

“If I elect to release Mr. Abrego, I will impose conditions of release, and the U.S. Marshal will release him.” If he is released into ICE custody, that is “above my pay grade,” she said.

Will Allensworth, an assistant federal public defender representing Abrego Garcia at the detention hearing, told Holmes that “it’s not necessarily accurate that he would be immediately deported.”

A 2019 immigration judge's order prevents Abrego Garcia from being deported to his home country of El Salvador because he faces a credible threat from gangs there.

The smuggling charges stem from a 2022 traffic stop for speeding in Tennessee during which Abrego Garcia was driving a vehicle with nine passengers. Although officers suspected possible smuggling, he was allowed to go on his way with only a warning. He has pleaded not guilty.

Ohio State University law professor César Cuauhtémoc García Hernández said that the U.S. is expected to try to deport Abrego Garcia quickly without going before an immigration judge, and the government would not need a conviction to deport him because Abrego Garcia came to the U.S. illegally.

“The legal standard is laxer,” García Hernández said. “The government’s argument is on stronger legal footing.”

However, an immigration judge's ruling can be appealed to the Board of Immigration Appeals, and the board's ruling can then be contested in a federal appeals court.