Kilmar Abrego Garcia has a federal court appearance Wednesday that will determine if he should be released on bond or remain in federal custody.
Federal Magistrate Barbara D. Holmes denied a request from the U.S. Department of Justice to detain Garcia. He was returned from El Salvador after deportation in March to stand trial on charges of “alien smuggling” and “conspiracy to commit alien smuggling.”
The charges stem from a 2022 Tennessee traffic stop. Garcia was driving an SUV with eight passengers. One of the officers believed that he was smuggling them, remarking that he was “hauling these people for money.”
While Holmes disputed some evidence presented by the Justice Department, she said Garcia would likely remain in federal custody but that Garcia would “give Abrego the due process that he is guaranteed.”
The smuggling charges are different from “trafficking” and the two terms were used interchangeably during Garcia’s detention hearing earlier this month.
“Trafficking is a crime committed against a person regardless of the person’s immigration status or the crossing of a transnational border, while smuggling is a crime committed against a country’s immigration laws and involves the willful movement of a person across a country’s border,” Holmes said. “A person may voluntarily consent to be smuggled.”
The 51-page ruling also disputes claims by the Justice Department that Garcia is a member of the MS-13 gang, saying that a cooperating witness told special agents that Garcia was “familial” with gang members. Holmes said a 20-year-old female told agents she “believed” Garcia was a gang member based on interactions with him more than five years ago but did not give sworn testimony.
Another witness told investigators that “in 10 years of acquaintance with Abrego, there were no signs or markings, including tattoos, indicating that Abrego is an MS-13 member.”
“Given these conflicting statements, the government’s evidence of Abrego’s alleged gang membership is simply insufficient,” Holmes said in the ruling.
Holmes said the Justice Department failed to prove the case involved a minor victim, a “serious risk” that Abrego would flee or that he would obstruct justice.
Holmes said, “…the Court finds that there are conditions of release that can be imposed to reasonably assure the safety of others and the community and to reasonably assure Abrego’s appearance as required. Overall, the strength of the factors weighing in favor of release outweighs all other factors in favor of detention, which compels Abrego’s release, particularly given the clear default under the law that persons who have not yet been convicted of a crime should be released pending trial.”
The hearing takes place in Nashville at 2 p.m.
