Kilmar Abrego Garcia likely to be held by ICE after DOJ release order
Sen. Chris Van Hollen, D-Md., speaks with Kilmar Abrego Garcia, a Salvadoran immigrant living in Maryland, in San Salvador, El Salvador on Thursday, April 17, 2025. On Sunday, a judge ordered Abrego Garcia to be released from Department of Justice custody. File Photo by President Nayib Bukele/UPI | License Photo
June 23 (UPI) -- A federal judge has ordered the release of Kilmar Abrego Garcia, but the Salvadoran migrant is expected to remain in Immigration and Customs Enforcement custody as the Trump administration appeals the court's decision.
Abrego Garcia, who has been living with his family in Maryland, was wrongly deported in March to El Salvador, where he was detained in the infamous CECOT prison. The 29-year-old was returned to the United States earlier this month to face two charges related to human smuggling in Tennessee, to which he has pleaded not guilty.
President Donald Trump's Justice Department asked the court for permission to detain the migrant amid litigation. But U.S. Magistrate Judge Barbara Holmes in Tennessee issued her order Sunday, denying the Trump administration's request and acknowledging that, despite her order, Abrego Garcia will likely be transferred to ICT custody rather than remain detained by the Justice Department.
"Perhaps the sole circumstance about which the government and Abrego 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," she said.
"That suggests the Court's determination of the detention issues is little more than an academic exercise."
ICE custody issues fall outside the authority of Holmes' court.
In her order, she said Abrego Garcia has the right to due process. She also accused the Justice Department of overstating the allegations against the defendant.
Abrego Garcia's charges stem from a traffic stop in November 2022. Nine other Hispanic men without documentation and luggage were in the vehicle.
The charging document accuses him of being a member of the MS-13 gang. It alleges that he and others conspired from at least 2016 smuggle migrants into the United States.
Holmes, in her Sunday order, pointed out how the Justice Department interchangeably used "smuggling" and "trafficking," which have distinct meanings in law, with the latter involving the movement of a person against their will, and the former with their cooperation.
She also highlighted a lack of evidence on the government's part in attempting to tie Abrego Garcia to smuggling minors.
The judge also criticized the government's application for detention ahead of trial based on on allegations of the defendant's gang membership.
She said "the government cannot simply rely on the general reputation of a particular street gang" to argue that Abrego Garcia poses a dangerous threat to society. And while gang membership may meet the threshold for detention, the government must prove he is a member of the gang -- allegations that Abrego Garcia has denied.
"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," Holmes said.
The Justice Department is widely expect to appeal.
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