(NewsNation) — Kilmar Abrego Garcia, the Salvadorian national from Maryland who was mistakenly deported to his home, will remain in jail in the custody of U.S. Marshals as attorneys representing Abrego Garcia and the U.S. Justice Department argue whether he will be deported once he is released from federal custody.
U.S. Magistrate Barbara Holmes denied the prosecution’s request to keep Abrego Garcia in federal custody during a hearing Wednesday in Nashville. But in ordering his release, she warned it is unlikely he would go free because of Immigration and Customs Enforcement having a detainer for Abrego Garcia, NewsNation local affiliate WKRN reported.
On Wednesday, attorneys representing Abrego Garcia requested that if their client were to be detained by ICE or Homeland Security once he was released from federal custody, it be at a facility where his lawyers would have access to him, WKRN reported.
The judge said she did not have the authority to tell federal immigration agencies where to keep Abrego Garcia but encouraged ICE to work with federal prosecutors to keep him in the United States until his trial on federal smuggling charges begins, The Tennessean reported.
Garcia’s attorneys told the judge that if Abrego Garcia were held anywhere besides Maryland or Tennessee, they would have trouble properly representing him, which would be a violation of his constitutional rights under due process.
Acting U.S. Attorney for the Middle District of Tennessee Robert McGuire said that, like the judge, he does not have the authority to determine what federal immigration agencies do with Abrego Garcia. However, he said he is willing to coordinate efforts between the Justice Department of the Department of Homeland Security.
Holmes gave defense attorneys until midday Thursday to file their legal brief and gave prosecutors until Friday to respond.
An ICE spokesperson did not immediately respond to a NewsNation request for comment on Wednesday regarding the agency’s plans regarding Abrego Garcia. DHS Assistant Secretary Tricia McLaughlin issued a statement Monday indicating that the federal agency’s stance on Abrego Garcia has not changed, adding, “He will never go free on American soil.”
Judge outlines the conditions of Abrego Garcia’s release
Holmes outlined the conditions of Abrego Garcia’s release but said they only applied if he was also released from ICE custody as well as that of the U.S. Marshals.
Abrego Garcia has remained in custody since being returned to the United States from El Salvador to face federal human smuggling charges stemming from a 2022 traffic stop in Tennessee.
Abrego Garcia faces two counts of unlawful transportation of illegal aliens for financial gain and a third count for conspiracy. He has pleaded not guilty.
Among the conditions laid out by the judge were residency requirements, avoiding illegal drugs and ensuring that any of the locations or vehicles he uses are not linked to crimes. The judge also said that another condition of Abrego Garcia’s release is that he consent to location monitoring.
Additionally, Holmes instructed Abrego Garcia, 29, not to have any direct or indirect contact with any known MS-13 gang members. Attorney General Pam Bondi and President Donald Trump have maintained that Abrego Garcia is a member of the gang that Trump has designated as a foreign terrorist organization.
Holmes warned that were Abrego Garcia were to violate any of the terms of his release, he would face imprisonment.
The lead-up to Kilmar Abrego Garcia’s court appearance
In delivering her 51-page order for Abrego Garcia’s release on Sunday, Holmes concluded that determining that his detention issues represented “little more than an academic exercise.”
In a court filing on Tuesday, McGuire asked that a stay be granted on Holmes’ order for release. McGuire wrote that it is a widely accepted fact that if Abrego Garcia is released from U.S. Marshal’s custody, “he will not be released at liberty, but rather, into the custody of Immigration and Customs Enforcement.”
However, McGuire argued that releasing Abrego Garcia into ICE custody poses a “potentially irreparable problem” for the government and the public at large. Holmes, in her ruling, determined that the government did not present enough evidence that Abrego Garcia represents a flight risk or a threat to the public.
But McGuire said if a stay on Holmes’ release order is not ordered Wednesday and Abrego Garcia is moved to ICE custody and deported, the government would lose the meaningful opportunity to try its case.
What happens if Kilmar Abrego Garcia is released?
Prosecutors indicated before Wednesday’s hearing that ICE plans to take Abrego Garcia into custody and begin possible deportation hearings immediately. However, Abrego Garcia’s defense attorneys have argued in a court filing that they believe it is unlikely that ICE will seek to deport Abrego Garcia, especially considering the wishes of the U.S. Justice Department, The Washington Post reported.
Ben Osorio, one of Abrego Garcia’s immigration attorneys, told NewsNation earlier this week that they had been asked not to comment publicly on the case.
However, Osorio told The Washington Post on Tuesday that the legal team was preparing for several options, including Abrego Garcia being deported to a country other than El Salvador. That became a possibility after the U.S. Supreme Court ruled that the Trump administration could begin deporting migrants to other places besides their home country.
Osorio did not immediately respond to NewsNation’s request for comment on Wednesday. Osorio told The Washington Post that one possibility existed that Abrego Garcia could file for asylum since his request would come within a year of his being returned to the United States.
Abrego Garcia is married to an American, who has pleaded for her husband to be returned to his family. Abrego Garcia was granted protective status from being sent back to El Salvador in 2019 when an immigration judge ruled that he could be in danger after fleeing his home country after being threatened by the Barrio 18 gang.
Police arrested Abrego Garcia, who entered the United States illegally in 2013. Police said that they found Abrego Garcia with known MS-13 gang members and said they had evidence that he belonged to the notorious gang as well.
On Wednesday, Abrego Garcia’s wife, Jennifer Vasquez Sura, said at a news conference before her husband’s hearing that it is the couple’s wedding anniversary and claimed Abrego Garcia had been “abducted” by the Trump administration.
“Instead of celebrating our love surrounded by family, I’m here, but not alone,” Vasquez Sura said, according to the Tennessean.
NewsNation local affiliate WKRN contributed reporting to this story