Kilmar Abrego Garcia will stay in custody for a few more days as lawyers argue over whether the prosecutors can stop his deportation if he’s released before his trial.
The Salvadoran, whose accidental deportation became a significant issue in discussions about President Donald Trump’s immigration policies, has been in detention since June 7 upon his return to the U.S., facing two human smuggling charges.
Despite a federal judge ruling that he should be released with certain conditions, his legal team is worried that release might lead to his prompt detention by ICE and subsequent deportation.
On Sunday, U.S. Magistrate Judge Barbara Holmes ruled that Abrego Garcia does not have to remain in jail ahead of that trial. On Wednesday afternoon, she set conditions for his release in preparation to allow him to go. But Abrego Garcia’s impending release has been halted over concerns that U.S. Immigration and Customs Enforcement would take him into custody immediately and possibly try to deport him before he can stand trial.
Holmes expressed doubts about her own power to require anything more than that prosecutors use their best efforts to secure the cooperation of Homeland Security and ICE.
“I have no reservations about my ability to direct the local U.S. Attorney’s office,” the judge said. “I don’t think I have any authority over ICE.”
Holmes did not say when she would file the release order for Abrego Garcia, but it will not happen before Friday afternoon.
The matter has revealed competing interests between two federal agencies within the Trump administration.
Acting U.S. Attorney Rob McGuire has said in court and in filings that one of the reasons he wants Abrego Garcia to stay in jail is to ensure that he remains in the country and isn’t deported by ICE.
McGuire said he would do “the best I can” to secure the cooperation of Homeland Security but noted, “That’s a separate agency with separate leadership and separate directions. I will coordinate, but I can’t tell them what to do.”
But Abrego Garcia’s attorney, Sean Hecker, pointed out to the judge on Wednesday that the Department of Justice and the Department of Homeland Security, which includes ICE, are both within the executive branch and seem to cooperate on other things. For example, ICE has agreed not to deport cooperating witnesses who agreed to testify against Abrego Garcia.
Federal prosecutors tried to stay the judge’s release order. But it was denied on Wednesday by U.S. District Judge Waverly D. Crenshaw, Jr., who wrote that the government was asking the court to “save it from itself” in a situation that was “completely of its own making.”
The judge wrote that federal prosecutors should be making their arguments against releasing Abrego Garcia to DHS, not a court, “because the Department of Justice and DHS can together prevent the harm the Government contends it faces.”
“If the Government finds this case to be as high priority as it argues here, it is incumbent upon it to ensure that Abrego is held accountable for the charges in the Indictment,” the judge wrote. “If the Department of Justice and DHS cannot do so, that speaks for itself.”
Waverly, however, will allow prosecutors to file a brief in support of a motion to revoke the magistrate’s release order. He’s scheduled an evidentiary hearing for July 16.
Abrego Garcia pleaded not guilty on June 13 to smuggling charges that his attorneys have characterized as an attempt to justify his mistaken deportation in March to a notorious prison in El Salvador.
Those charges stem from a 2022 traffic stop for speeding in Tennessee during which Abrego Garcia was driving a vehicle with nine passengers. At his detention hearing, Homeland Security special agent Peter Joseph testified that he did not begin investigating Abrego Garcia until April of this year.
Holmes said in her Sunday ruling that federal prosecutors failed to show that Abrego Garcia was a flight risk or a danger to the community. He has lived for more than a decade in Maryland, where he and his American wife are raising three children.
However, Holmes referred to her own ruling as “little more than an academic exercise,” noting that ICE plans to detain him. It is less clear what will happen after that. Although Abrego Garcia can’t be deported to El Salvador – where an immigration judge found he faces a credible threat from gangs – he is still deportable to a third country as long as that country agrees to not send him to El Salvador.
Abrego Garcia’s wife, Jennifer Vasquez Sura, said during a news conference before Wednesday’s scheduled court hearing that it’s been 106 days since he “was abducted by the Trump administration and separated from our family.” She noted that he has missed family birthdays, graduations and Father’s Day, while “today he misses our wedding anniversary.”
Vasquez Sura said their love, their faith in God and an abundance of community support have helped them persevere.
“Kilmar should never have been taken away from us,” she said. “This fight has been the hardest thing in my life.”
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