A federal judge in Tennessee will reconsider on Wednesday whether Kilmar Abrego Garcia should remain in jail while he awaits trial on human smuggling charges, amid growing concerns by his counsel that the Trump administration will deport him before his case ever reaches a jury.
The unusual hearing will pit the Department of Justice under the Trump administration against Abrego Garcia’s lawyers, with both sides now urging continued detention, but for starkly different reasons. Prosecutors argue the 29-year-old Salvadoran national and alleged MS-13 gang member poses a danger to the community. All the while, defense attorneys say releasing him would all but guarantee deportation, cutting off his access to the due process to which they say he is still entitled.
A magistrate judge had previously approved Abrego Garcia’s release on bond, but the ruling was paused at the defense’s request after immigration officials made clear they would take him into custody upon release. United States District Judge Waverly Crenshaw will now weigh whether to uphold or reverse that decision, though a ruling may not come immediately.
The judge also previously ordered both parties to agree on three potential dates to begin a trial, which will likely be discussed at the Wednesday hearing scheduled for 1 p.m. CST.
If Abrego Garcia is released pretrial, the Department of Homeland Security has indicated it would deport Abrego Garcia to a “third country,” possibly South Sudan or Mexico, rather than El Salvador, where a 2019 immigration court order found he faced the risk of gang-related persecution.
He was deported to El Salvador in March despite that order, later leading the Supreme Court to agree in part with a lower court’s order that DHS must “facilitate” his return. After weeks of delaying that return, the government eventually brought him back to the United States on June 6, where he was charged in a two-count indictment for allegedly transporting illegal immigrants throughout the U.S.
The outcome of Wednesday’s hearing could determine whether DHS gets a second chance to remove him. At a separate hearing last week in Maryland, U.S. District Judge Paula Xinis said she was “deeply concerned” the government would attempt another swift deportation before Abrego Garcia could mount a legal challenge. Xinis signaled that she may soon require DHS to give at least 48 hours’ notice before removal.
Prosecutors, meanwhile, intend to make their case for detention by introducing a wide-ranging set of exhibits, including video from a 2022 traffic stop, cellphone records, and a handwritten “roster” allegedly created by the passengers in Abrego Garcia’s vehicle.
According to the prosecutors, each passenger listed their name and date of birth on a piece of paper passed around at the direction of a Tennessee state trooper. One individual claimed to have been born in 2007, suggesting a minor was among the group at the time. A still image of the roster, captured by body-worn camera footage, was introduced as an exhibit in a previous hearing. But a magistrate judge questioned its reliability, citing multiple layers of hearsay and the government’s failure to produce the individual who allegedly claimed to be a minor or the trooper who oversaw the creation of the list.
Special Agent Peter Joseph of Homeland Security Investigations is expected to testify again on Wednesday about the roster and related evidence. He previously testified that he did not begin investigating Abrego Garcia until April of this year, roughly a month after his deportation.
Defense attorneys, by contrast, do not plan to introduce any evidence or call witnesses, underscoring that their opposition to release is based not on guilt or innocence, but on the threat of immediate deportation.
JUDGE WEIGHS BLOCKING TRUMP ADMINISTRATION FROM QUICKLY DEPORTING ABREGO GARCIA AGAIN
“In a just world, he would not seek to prolong his detention further,” his defense team said in a statement in June. “And yet the government, a government that has, at all levels, told the American people that it is bringing Mr. Abrego back home to the United States to face ‘American justice,’ apparently has little interest in actually bringing this case to trial.”
Abrego Garcia has pleaded not guilty to the charges and denies any affiliation with MS-13, despite evidence supporting those allegations cited by immigration authorities in prior proceedings.