Fears of being arrested by ICE are keeping Kilmar Abrego Garcia behind bars—despite a federal judge ruling Wednesday that he could be released on his own recognizance.
The ruling appeared to grant Abrego Garcia partial freedom for the first time since he was arrested in Maryland on March 12, days before he was one of over 200 migrants flown to a notorious El Salvador prison. However, ICE agents were spotted outside the Tennessee courthouse where he appeared Wednesday, and his own lawyers asked that he remain in custody to protect him from deportation ahead of his trial.
Abrego Garcia, a 29-year-old El Salvador national, has undergone a whirlwind three months since he was arrested during a traffic stop near his home. He was flown to El Salvador days later, and he became a household name after his lawyers alerted that a judge’s order from 2019 meant that his removal to his home country was illegal.
A bitter battle ensued regarding the wrongful removal, with President Donald Trump and the White House accusing him of being an MS-13 gang member, despite providing no proof. Abrego Garcia was brought back to the U.S. on June 7 to face accusations that he illegally transported undocumented migrants from Texas to other areas in the United States.
Federal prosecutors argued that Abrego Garcia should remain in custody while awaiting trial, but U.S. Magistrate Judge Barbara D. Holmes disagreed. She said Abrego Garcia had lived in the U.S. for over a decade peacefully and was a father of three who, until being accused of human smuggling this spring, had only been in trouble with the law for traffic violations. She added he was not a danger to the community and did not appear to be a flight risk.
Holmes said Abrego Garcia could remain under house arrest at his cousin’s home until his trial began. However, his lawyers requested additional time to secure protections that would prevent him from being arrested by ICE ahead of trial, according to the Associated Press.
Holmes warned Abrego Garcia’s attorneys that she could not order ICE to call off its pursuit of their client, who is married to a U.S. citizen and legally worked in Maryland as a sheet metal apprentice before his arrest.
“I have no reservations about my ability to direct the local U.S. Attorney’s office,” Holmes said in court, according to the AP. “I don’t think I have any authority over ICE.”
What happens to Abrego Garcia next remains unclear, as two federal entities have reached competing conclusions on his immediate future. Department of Homeland Security spokesperson Tricia McLaughlin was adamant this week that Abrego Garcia would never step foot in the U.S. again as a free man.
Acting U.S. Attorney Rob McGuire said that keeping Abrego Garcia in the DOJ’s custody—and not in that of the Department of Homeland Security—is the best way for Abrego Garcia to avoid deportation before facing trial.
McGuire reportedly said in court that he will do “the best I can” to secure the cooperation with Homeland Security Secretary Kristi Noem’s department, 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.”
Holmes urged Noem not to take Abrego Garcia into custody until he can stand trial in the U.S. for his alleged crimes.
“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,” she wrote in an order. “If the Department of Justice and DHS cannot do so, that speaks for itself.”
