The government on Sunday appealed a federal judge’s order to release of Kilmar Abrego Garcia pending trial on human smuggling charges, another chapter in the saga of the Maryland father who had been erroneously deported to El Salvador.
The Trump administration admitted having mistakenly deported Abrego Garcia in March, and the Supreme Court ordered it to facilitate his return.
Upon his return this month, though, Abrego Garcia was hit with federal charges of conspiracy to unlawfully transport illegal immigrants for financial gain and unlawful transportation of illegal immigrants for monetary gain. He pleaded not guilty.
“Abrego, like every person arrested on federal criminal charges, is entitled to a full and fair determination of whether he must remain in federal custody pending trial,” U.S. Magistrate Barbara D. Holmes of the Middle District of Tennessee wrote in her opinion Sunday. “The Court will give Abrego the due process that he is guaranteed.”
The government quickly filed a request to stay the order and keep Abrego Garcia in custody, a filing that made it clear it would again subject him to deportation proceedings.
The government argued that a stay, or pause, would allow the court “to conduct meaningful review” of custody ahead of the judge’s ruling on a separate court filing.
“He will remain in custody pending deportation and Judge Holmes’ release order would not immediately release him to the community under any circumstance,” Justice Department lawyers said in request for a stay Sunday.
In concluding Abrego Garcia should be released pending trial, with certain conditions, Holmes faulted the government for its language surrounding the case and indicated he has been so far denied ordinary due process that might come to any defendant.
She noted that government lawyers have used the terms “human smuggling” and “human trafficking” interchangeably, though the former refers to helping someone willfully enter a country, while the latter refers to bringing someone to a country against their will.
She also noted that the government accused Abrego Garcia of being “involved” in transporting a minor as part of the alleged smuggling — without solid and specific evidence of such.
Holmes set a hearing for Wednesday to discuss terms of Abrego Garcia’s release and ordered federal authorities to produce him for the event.
She held out little hope that Abrego Garcia would actually be free, however, noting that immigration authorities were likely to detain him upon release because he is alleged to be in the United States without permission.
“Either Abrego will remain in the custody of the Attorney General or her designee pending trial if detained under the Bail Reform Act or he will likely remain in U.S. Immigration and Customs Enforcement (‘ICE’) custody subject to anticipated removal proceedings that are outside the jurisdiction of this Court,” she wrote in her decision.
“That suggests the Court’s determination of the detention issues is little more than an academic exercise,” Holmes said.
