A magistrate judge ruled Sunday that the government cannot hold Kilmar Abrego Garcia on pre-trial detention in the criminal migrant smuggling case against him — though the judge said he’ll likely still be detained as an illegal immigrant anyway.
Magistrate Judge Barbara Holmes’s ruling is a bit of a legal blow to the Trump administration, serving as an early evaluation of the criminal case against Mr. Abrego Garcia, who has been the focus of months of legal battles.
The judge said Mr. Abrego Garcia isn’t charged with a crime involving a juvenile victim, nor is he a clear flight risk. So the government isn’t entitled to a detention hearing.
But even if it were entitled to one, the government hasn’t proved Mr. Abrego Garcia is a significant enough risk that he cannot be released, under some conditions.
“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,” she wrote.
Judge Holmes set a hearing for later this week to talk about the kind of conditions Mr. Abrego Garcia must face to be released.
The government has filed a notice saying it will challenge her detention decision.
Even if he ultimately is not held on the criminal charge, the government says his status as an illegal immigrant and a target for deportation means he can be held in immigration detention.
That means his actual release is unlikely unless he can get another court to find his immigration detention is unlawful.
Mr. Abrego Garcia was deported in March as part of three planeloads of illegal immigrants sent to a terrorist prison in El Salvador. A federal judge in Maryland had said his arrest and deportation were “unlawful” and ordered the government to bring him back.
Trump officials resisted that, but worked behind the scenes to win an indictment accusing Mr. Abrego Garcia of migrant smuggling. He stands charged with one count, though prosecutors say he made dozens of trips and made tens of thousands of dollars from his smuggling, which they say included migrant children and, at times, guns and drugs.
They have also suggested he solicited nude photos of an underage girl, and said he was involved with a murder in El Salvador.
Previously federal officials had said he was a member of MS-13, which is what earned him deportation to the Salvadoran prison. The smuggling allegations all developed after investigators took a new look at him as he was the subject of a national immigration debate.
Mr. Abrego Garcia, in his first court appearance in Tennessee earlier this month, pleaded “not guilty” to the smuggling charge.
