(NewsNation) — Although Kilmar Abrego Garcia was ordered released from federal custody as he awaits trial in Tennessee on human smuggling charges, it remains unlikely the Salvadorian national who was mistakenly deported to his home country will go free.
U.S. Magistrate Barbara Holmes, who presides over the U.S. Federal Court of Middle Tennessee, issued a 51-page order in which she concluded that determining Abrego Garcia’s detention issues “is little more than an academic exercise.”
She wrote Sunday that it is likely that Abrego Garcia, the Maryland man who had a 2019 protective order that kept him from being deported to El Salvador, will likely remain in custody until his trial. That could be handled by Immigration and Customs Enforcement, which can carry out removal orders of migrants who have previously been ordered to leave the country.
Abrego Garcia’s attorneys, both from the immigration legal firm that had represented him before he was returned to the United States and from the Federal Public Defender’s Office of Middle Tennessee, declined comment when contacted by NewsNation on Monday.
Abrego Garcia is scheduled to return to court Wednesday to discuss the conditions of his release. However, Holmes indicated on Sunday that U.S. immigration officials have indicated that they will likely detain him for civil deportation proceedings after he is released, The Washington Post reported.
“Kilmar Abrego Garcia is a dangerous criminal alien,” DHS Assistant Secretary Tricia McLaughlin said in a statement released by the agency on Monday and provided to NewsNation. “We have said it for months, and it remains true to this day: He will never go free on American soil.”
Could Abrego Garcia be deported again?
After Sunday’s ruling, Abrego Garcia’s wife, Jennifer Vasquez Sura, said in a statement released by CASA, an immigrant advocacy group, that she wanted her husband “home with us, where he belongs.”
“Kilmar has missed birthdays, Mother’s Day, Kilmar Jr.’s kindergarten graduation, and spent Father’s Day alone,” she said. “Only God knows the darkness he has experienced in these last three months.”
However, while Wednesday’s hearing will determine the conditions under which Abrego Garcia would be released from federal custody, whether that happens, and where he could land if he remains detained, come with a variety of possibilities, including facing possible deportation despite the 2019 order for protective custody.
If ICE detains Abrego Garcia once he is released from federal custody, they could push for him to be deported immediately by pushing an immigration judge to rule on their behalf, Naresh Gehi, the founder and principal attorney at Gehi and Associates in New York, told NewsNation.
In 2019, Abrego Garcia was granted protective status by a judge, who ruled that he could not be sent back to El Salvador. But ICE will attempt to make the case for Abrego Garcia’s deportation based on the evidence that the government believes it has, alleging that Abrego Garcia is a member of the MS-13 gang, in a case that has become a “political stunt” for prosecutors, Gehi said.
In response, Gehi believes Abrego Garcia’s attorneys should push for an adjustment in their client’s immigration status, since he says Abrego Garcia is now considered a parolee in the United States. That would allow Abrego Garcia to apply for a green card through his wife, who is an American citizen.
If that request is denied, Gehi believes Abrego Garcia’s attorneys should push for the case to the federal court, which signals the continuation of the lengthy court fight. But Gehi agreed with Holmes’ conclusion that despite her order for release, Abrego Garcia will not likely be freed.
“This is what the government typically does – they will try to keep him in jail as much as possible just to basically break his spirit and to make sure he gives up,” Gehi told NewsNation. “It’s a test of patience.”
What charges does Abrego Garcia face?
Abrego Garcia faces two counts of unlawful transportation of illegal aliens for financial gain and a third count for conspiracy. The charges stem from a 2022 traffic stop in Tennessee in which Abrego Garcia was pulled over by state troopers and found to be in the vehicle with several other people traveling to Maryland.
In a news conference earlier this month after Abrego Garcia was returned from El Salvador to face the Tennessee charges, Attorney General Pam Bondi alleged Abrego Garcia is a trafficker of men, women and children. Bondi said that U.S. officials presented El Salvador government officials with an arrest warrant for Abrego Garcia, and they agreed to release him.
“Abrego Garcia is a danger to our community,” Bondi told reporters, adding, “This is what American justice looks like.”
Abrego Garcia has pleaded not guilty to the charges.
Acting U.S. Attorney Robert McGuire has said that Abrego Garcia represents a danger to the community due to his alleged membership with the MS-13 street gang. Abrego Garcia has denied having connections to the gang, which President Donald Trump has designated as a foreign terrorist organization.
In Sunday’s ruling, Holmes noted the importance of the difference between human smuggling and human trafficking, even though the two charges were used interchangeably during Abrego Garcia’s detention hearing after he was returned from El Salvador.
Federal law defines trafficking as a crime committed against a person, regardless of their immigration status. Smuggling, meanwhile, is a crime committed against a country’s immigration laws and involves the willful movement of a person across a country’s border.
A person may volunteer to be smuggled, while trafficking often involves the use of force, fraud or coercion and a specific purpose, such as subjection to servitude or commercial sex acts.
Holmes ruled Sunday that as of now, the government has failed to prove that Abrego Garcia has endangered any minor children or was a risk to try to flee law enforcement or obstruct justice.