Federal judge denies Trump admin bid to keep Kilmar Abrego Garcia in custody before trial — ICE expected to detain him after release

A Tennessee federal judge on Wednesday denied the Trump administration’s bid to keep suspected MS-13 gang member Kilmar Abrego Garcia behind bars as he awaits trial on federal human smuggling charges.

Abrego Garcia, however, was expected to be detained by Immigration and Customs Enforcement (ICE) upon his release from custody – which won’t happen for at least a few more days.

“I can’t order ICE to take any particular actions with respect to Mr. Abrego in this case,” US Magistrate Judge Barbara Holmes said during a hearing in Nashville setting the conditions for Abrego Garcia’s release.

“The most I can do is request the US Attorney’s Office to encourage cooperation from Homeland Security,” she added.

Acting US Attorney Rob McGuire, who argued in court filings that Abrego Garcia should remain in jail to ensure he isn’t deported ahead of his trial, told the judge Wednesday that he would do “the best I can” to secure the cooperation of the Department of Homeland Security. 

“That’s a separate agency with separate leadership and separate directions,” McGuire cautioned. “I will coordinate, but I can’t tell them what to do.”

Holmes set conditions for Abrego Garcia’s release but indicated she wouldn’t officially sign off on them until at least Friday afternoon. 

Department of Homeland Security vehicles were spotted outside the courthouse during the hearing, which coincided with US District Judge  Waverly D. Crenshaw denying the Trump administration’s bid to stay Holmes’ Sunday ruling ordering the release of Abrego Garcia pending his trial.

Crenshaw’s ruling acknowledged that the decision on whether to continue holding Abrego Garcia ultimately rests with the Trump administration. 

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

Federal immigration authorities have placed a detainer on Abrego Garcia. 

The Salvadoran national is barred from being deported to his home country, where the Supreme Court determined he had been unlawfully sent by the Trump administration earlier this year, but he could be expelled to a third country. 

“The Government contends that Abrego will not be substantially injured by staying his release pending appeal because he will likely be detained by DHS even if released,” Crenshaw wrote. “While the Court agrees with the premise that Abrego will likely be detained by DHS, it departs from the Government’s position that the Executive Branch’s pursuit of Abrego on multiple fronts somehow renders these proceedings academic.” 

“This forgoes the basic tenets of due process and judiciary diligence underlying Article III,” the Obama-appointed judge continued. 

“The focus here is not what will happen to Abrego after he is released, but whether the Government has made the proper showing to trigger the statutory authority to detain him,” Crenshaw added, concluding that the Trump administration did not make a “strong showing.”

The release conditions imposed by Holmes – which will be moot if Abrego Garcia is detained by ICE – require the alleged human smuggler to undergo anger management counseling, remain under home detention with location monitoring, and be subjected to drug testing, according to USA Today. 

Holmes also ordered that Abrego Garcia have no contact with MS-13 gang members while awaiting trial. 

Abrego Garcia, who entered the US illegally in 2011,  was arrested March 12 in Baltimore amid trafficking and other accusations, including that he had MS-13 ties, and was soon deported to El Salvador’s notorious CECOT prison. 

He was returned to US soil on June 6 to face charges of transporting illegal immigrants from Texas to Maryland in an SUV in 2022 and taking part in a human smuggling conspiracy.

Federal authorities, citing cooperating witnesses, claim Abrego Garcia was paid up to $1,500 per smuggling trip and may have raked in more than $100,000 annually trafficking humans, including minors.

He pleaded not guilty earlier this month. 

DHS Assistant Secretary Tricia McLaughlin vowed Wednesday that Abrego Garcia will “never” be allowed to roam free in the US.   

“Kilmar Abrego Garcia is a dangerous criminal illegal alien,” McLaughlin said in a statement. “We have said it for months and it remains true to this day: he will never go free on American soil.”

With Post wires