Judge rejects

Magistrate judge rejects Trump admin bid to jail Kilmar Abrego Garcia ahead of trial

Despite the magistrate’s ruling, which found inconsistencies and hearsay in prosecutors’ case, he is likely to remain detained in immigration custody

By Josh Gerstein and Kyle Cheney

Kilmar Abrego Garcia, the Salvadoran man whose illegal deportation became a high-profile symbol of President Donald Trump’s aggressive immigration-enforcement policies, may not be held in jail pending trial on immigrant smuggling charges he was abruptly returned to the U.S. to face earlier this month, a federal magistrate judge ruled Sunday.

Despite the decision by Nashville-based U.S. Magistrate Judge Barbara Holmes, Abrego is unlikely to be released anytime soon. The Justice Department immediately filed an appeal and there is an order to keep him in immigration custody, at least in the near term.

Still, the ruling is a blow to the nascent criminal case, which alleges Abrego regularly drove undocumented immigrants across the U.S. for years as part of an international human smuggling ring.

Holmes said prosecutors failed to produce enough plausible evidence that Abrego posed a danger to the community, was likely to flee or that he victimized minors while he allegedly transported immigrants across the country. And she repeatedly described the evidence presented by prosecutors as strained, unreliable and contradictory.

While Trump has insisted that Abrego is a member of the violent MS-13 gang, Holmes said the proof prosecutors presented of his gang ties during a daylong court hearing in Nashville earlier this month didn’t amount to much.

“Given the volume of resources committed to the government’s investigation of Abrego since April 2025…the Court supposes that if timely, more specific, concrete evidence exists of Abrego’s alleged MS-13 gang membership or a consistent pattern of intentional conduct designed to threaten or intimidate specific individuals, the government would have offered that evidence,” the judge wrote.

Holmes also noted that, while MS-13 has been tied by the government to violent crimes and a variety of other offenses, “Abrego has no reported criminal history of any kind.”

In fact, Holmes said the contention that Abrego was in the gang at all was built on “double hearsay” that was at times inconsistent.

Holmes repeatedly noted that the government’s case for detaining Abrego pending trial was built upon multiple layers of hearsay that sometimes “defy common sense” and were often drawn from statements of cooperating witnesses with extensive criminal history who are seeking favors from federal prosecutors.

Prosecutors said Abrego might flee because he could effectively receive a life sentence, based on the possibility of up to 10 years in prison for each immigrant he transported. But the judge said the prosecution’s calculation was wrong, and she observed that past sentences for charges similar to Abrego’s were not nearly that steep, averaging around 12 months.

“The Court is unconvinced that the potential sentence Abrego faces if convicted as charged is so extraordinary as to compel finding that this case involves a serious risk of flight,” Holmes wrote.

Prosecutors also sought Abrego’s pretrial detention based on claims that his alleged crimes involved minors. A Homeland Security Investigation agent testified that “cooperators” said Abrego drove an SUV-loaded with undocumented immigrants from Houston to Maryland sometimes as often as three to four times a week with his own children in the vehicle, but Holmes said the accounts did not seem plausible.

“The sheer number of hours that would be required to maintain this schedule, which would consistently be more than 120 hours per week of driving time, approach physical impossibility,” the judge wrote.

A Justice Department spokesperson had no immediate comment. But federal prosecutors quickly appealed Holmes’ ruling to U.S. District Judge Waverly Crenshaw, the Obama-appointed trial judge ultimately slated to preside over the case.

The ruling is the latest twist in a saga that has resulted in multiple black eyes for Trump’s mass deportation policy, including a rebuke from the Supreme Court and a slew of federal judges who found Abrego was denied due process when he was summarily deported to his native country in March.

Abrego was among hundreds of immigrants abruptly arrested and delivered to El Salvador on three flights that also included people targeted by Trump under an unprecedented invocation of wartime deportation powers. Though Abrego wasn’t among that group, the administration labeled him as an MS-13 member and said he was not entitled to much, if any, due process as a result of Trump’s determination.

However, at the time of his deportation, Abrego was subject to a 2019 immigration court order barring his deportation to El Salvador, where a judge concluded Abrego was likely to face persecution and violence. The administration acknowledged the error in response to a lawsuit filed by Abrego and his family, but for weeks the administration resisted court orders demanding officials attempt to secure his release from Salvadoran custody and return to the United States.

While Abrego was still in a Salvadoran jail last month, U.S. prosecutors obtained a grand jury indictment of him in connection with a 2022 traffic stop on Interstate 40 in Tennessee. Prosecutors say Abrego was driving an SUV with nine undocumented immigrants in it, and that he regularly ferried immigrants between Texas and Maryland for $1000 to $1500 a trip as part of an international ring that helped people cross into the U.S. illegally.

Abrego’s defense lawyers contend the criminal charges amount to retaliation for the attention his case drew to the Trump administration’s hastily executed deportation of hundreds of men to a notorious, anti-terrorism prison in El Salvador in March.

Prosecutors insist that Abrego will remain in immigration custody even if he’s released to await trial on the criminal charges. However, if that were the case, he could seek bond from an immigration judge.