ICE will likely detain Kilmar Abrego Garcia despite judge's motion for his release

Abrego Garcia was returned to the U.S. after being mistakenly deported.

Kilmar Abrego Garcia will likely be placed in Immigration and Customs Enforcement custody due to an immigration detainer the government has on him, despite a Tennessee judge on Sunday ordering his release in his criminal case.

This comes after the mistakenly deported Salvadoran native was brought back to the United States from El Salvador's mega-prison earlier this month. Abrego Garcia faces criminal charges for allegedly transporting undocumented migrants within the U.S. in what federal prosecutors say was a conspiracy involving the domestic transport of thousands of noncitizens from Mexico and Central America, including some children, in exchange for thousands of dollars.

While U.S. Magistrate Judge Barbara Holmes' on Sunday denied the government's motion to detain Abrego Garcia, she acknowledged that if released, "there is no suggestion that the action taken by the government will be anything other than detaining him in ICE custody pending further removal proceedings."

In her 51-page order, Judge Holmes said the government failed to prove there is a "serious risk" that Abrego Garcia will flee or that he will obstruct justice in the case. Holmes also said the government's evidence that Abrego Garcia is a member of MS-13 "consists of general statements, all double hearsay" from cooperating witnesses.

Holmes said Abrego Garcia "has no criminal history" of any kind and said that his "reputed gang membership" is contradicted by the government's own evidence that was presented during a hearing two weeks ago.

"The Court does not find that these circumstances, when considered together, compel a determination that Abrego poses a risk of danger to the community or has the proclivity and incentive to flee rather than face prosecution of this case," Holmes said.

The Tennessee judge also appeared unconvinced by the testimonies of two cooperating witnesses the government's investigation relied on, which were recounted by a federal agent at a hearing two weeks ago. "Even without discounting the weight of the testimony of the first and second male cooperators for the multiple layers of hearsay, their testimony and statements defy common sense," Holmes said.

In her order, Judge Holmes also said she is "unconvinced that the potential sentence Abrego faces if convicted as charged is so extraordinary as to compel a finding that this case involves a serious risk of flight for purpose." Holmes said that of 14 convictions of human smuggling since 2005, the average sentence was 12 months.

Holmes scheduled a hearing for Wednesday to determine the conditions of release. In response to her order, Robert McGuire, the Acting U.S. Attorney for the Middle District of Tennessee, filed a motion for a stay of the judge's order of release.

Abrego Garcia has been the subject of a prolonged legal battle since he was deported in March to El Salvador's CECOT mega-prison -- despite a 2019 court order barring his deportation to that country due to fear of persecution -- after the Trump administration claimed he was a member of the criminal gang MS-13, which his family and attorneys deny.

The Trump administration, after arguing for nearly two months that it was unable to bring him back, returned him to the U.S., where he faces the two-count indictment.