Judge will order Kilmar Abrego Garcia’s pre-trial release but ICE plans to detain him and possibly try to deport him again

A federal judge in Tennessee plans to order the release of Kilmar Abrego Garcia, whose mistaken deportation to El Salvador has become a flashpoint in President Donald Trump’s immigration crackdown, while he awaits a federal trial on human smuggling charges.

But Abrego Garcia is not expected to go free because U.S. Immigration and Customs Enforcement will likely take him into custody and possibly try to deport him.

In a ruling on Sunday, U.S. Magistrate Judge Barbara Holmes denied the U.S. government’s motion to keep Abrego Garcia in detention before his trial. She scheduled a hearing for Wednesday to discuss the conditions of his release.

The U.S. government has already filed a motion to appeal the judge’s decision and is asking the judge to stay her impending release order.

Abrego Garcia pleaded not guilty on June 13 to smuggling charges that his attorneys have characterized as an attempt to justify his mistaken deportation in March to a notorious prison in El Salvador after the fact. That hearing was the first chance the Maryland construction worker had in a U.S. courtroom to answer the Trump administration’s allegations.

The smuggling charges stem from a 2022 traffic stop for speeding in Tennessee during which Abrego Garcia was driving a vehicle with nine passengers. Although officers suspected possible smuggling, he was allowed to go on his way with only a warning.

A federal indictment accuses Abrego Garcia of smuggling throughout the U.S. hundreds of people living in the country illegally, including children and members of the violent MS-13 gang. The investigation was launched weeks after the Supreme Court ordered the administration to facilitate his return from El Salvador amid mounting public pressure.

Holmes acknowledged in her ruling Sunday that determining whether Abrego Garcia should be released is “little more than an academic exercise” because ICE will likely detain him. But the judge wrote that the government failed to prove that Abrego was a flight risk, that he posed a danger to the community or that he would interfere with proceedings if released.

“Overall, the Court cannot find from the evidence presented that Abrego’s release clearly and convincingly poses an irremediable danger to other persons or to the community,” the judge wrote.

The acting U.S. attorney for the Middle District of Tennessee, Rob McGuire, argued on June 13 that the likely attempt by ICE to try to deport him was one reason to keep him in jail.

The judge suggested then that the Department of Justice and the Department of Homeland Security could work out between themselves whether the government’s priority is to try him on the criminal charges or deport him. No date has been set for the trial.

A 2019 immigration judge’s order prevents Abrego Garcia from being deported to his native El Salvador because he faces a credible threat from gangs there, according to Will Allensworth, an assistant federal public defender representing Abrego Garcia.

The government could deport him to a third country, but immigration officials would first be required to show that third country was willing to keep him and not simply deport him back to El Salvador, Allensworth said.

At the detention hearing, McGuire said cooperating witnesses have accused Abrego Garcia of trafficking drugs and firearms and of abusing the women he transported, among other claims. Although he is not charged with such crimes, McGuire said they showed Abrego Garcia to be a dangerous person who should remain in jail pretrial.

Most people in ICE custody who are facing criminal charges are not kept in the U.S. for trial but deported, according to Ohio State University law professor César Cuauhtémoc García Hernández. The government would not need a conviction to deport Abrego Garcia because he came to the U.S. illegally.

However an immigration judge rules, the decision can be appealed to the Board of Immigration Appeals, García Hernández said. And the board’s ruling can then be contested in a federal appeals court.

This story was originally featured on Fortune.com