Donald Trump’s White House is doing everything it can to make sure Kilmar Abrego Garcia never steps foot on U.S. soil as a free man – even if that means setting him free in another country while he faces criminal charges in this one.
Federal prosecutors want to bring his smuggling case to trial as soon as possible. But if he’s released from pretrial detention, immigration officials intend to arrest and deport him before a trial even begins, according to government lawyers.
Abrego Garcia has pleaded not guilty, and his trial is set to begin January 27, 2026. He could be in another country by then.
The administration spent weeks insisting Abrego Garcia would never be allowed back to the country after admitting he was wrongfully deported in March. Yet he was abruptly flown back to the United States from El Salvador last month to face a criminal indictment in Tennessee. At a press conference announcing his return, Attorney General Pam Bondi said Abrego Garcia would face “American justice.”
In recent court hearings in two different states, where judges are presiding over a criminal case and his wrongful removal lawsuit, Justice Department lawyers said they would only move forward with his criminal prosecution if he remains in custody while awaiting trial.
If he is released on bail, they would let Immigration and Customs Enforcement agents arrest him and send him out of the country, again.
Maryland District Judge Paula Xinis hauled Trump administration officials to court this month to understand what, if anything, the government intends to do with Abrego Garcia when he’s released from pretrial custody.
Department of Homeland Security officials admitted that ICE intends to arrest him, but they don’t yet know where he will be deported. Government attorneys had previously announced plans to deport him to a “third country” instead of his native El Salvador.
“There’s been no decision made, as he is not in ICE custody,” Thomas Giles, assistant director for ICE enforcement and removal operations, testified last week.
ICE intends to take custody of Abrego Garcia “as soon as possible,” Giles said.
Where he will await his removal from the country will depend on available space in immigration detention centers, according to Giles.
Last month, Magistrate Judge Barbara Holmes determined there is no legal basis to keep him in pretrial detention. She set potential conditions for his release, including wearing an ankle bracelet and living with his brother in Maryland.
The federal judge overseeing his criminal case will decide next week whether to uphold that ruling.
On July 16, Tennessee District Judge Waverly D. Crenshaw Jr. said his decision will not be determined by what ICE wants to do. “Frankly we don’t know what is going to happen to him in that regard,” the judge said.
But he said he was “having a hard time understanding” arguments from federal prosecutors that there were no conditions under which Abrego Garcia — who does not have a criminal record — could be out of jail while awaiting trial.
Holmes also appeared to reject the government’s characterization of Abrego Garcia as a dangerous MS-13 gang member, human trafficker and serial abuser following claims from administration officials and government attorneys that “defy common sense.”
Under cross examination from defense attorney Sean Hecker, Homeland Security Investigations Special Agent Peter Joseph admitted that he did not know that one of the government’s central informants in the case gave conflicting statements about Abrego Garcia’s alleged gang ties in several interviews with federal agents.
He also testified that he didn’t know that the informants were in contact with other potential cooperators — at least three of whom sought deals with the government to legally remain in the United States in exchange for their testimony.
Three of the witnesses are related, and Joseph admitted it was “always a possibility” that they coordinated their stories to secure a better deal for themselves.
“They’re family,” Crenshaw shot back. “Family talk.”
But it won’t be Crenshaw’s decision that decides whether Abrego Garcia walks free.
That will be up to Judge Xinis in Maryland. She is expected to decide whether to block the Trump administration from deporting him a second time.
Xinis has signaled that she will order the government to give him at least two days’ notice, should the judge overseeing his criminal case release him from pretrial custody.
Abrego Garcia was 16 years old when he fled gang violence in El Salvador and illegally entered the United States in 2011.
Abrego Garcia, now 29, was living and working in Maryland with his wife and child, both American citizens, and two children from a previous marriage, when ICE agents arrested him in March.
After government lawyers admitted in court documents that he was removed from the country due to a procedural error, federal judges and a unanimous Supreme Court ordered the Trump administration to “facilitate” his return. A 2019 order from an immigration judge had blocked his removal to El Salvador over humanitarian concerns, and Supreme Court justices unanimously agreed the Trump administration had “illegally” defied that order.
Still, the government spent weeks battling court orders while officials publicly said he would never step foot in the United States as they characterized him as a serial abuser and criminal gang member.
But emails and text messages provided to members of Congress appear to show Trump administration and government lawyers were sympathetic to his wrongful removal and made efforts to get him out of El Salvador before the case made headlines causing major headaches for the White House.
Erez Reuveni, a 15-year veteran of the Justice Department who was working in the Office of Immigration Litigation, was closely involved with several high-profile immigration cases in the first months of Donald Trump’s presidency when he was fired in April.
He supplied members of the Senate Judiciary Committee with a massive trove of internal messages showing the lengths the administration was taking to label Abrego Garcia a member of MS-13 as they tried to figure out if they were violating court orders by keeping him in El Salvador.
Before the case exploded into a national story at the center of the president’s anti-immigration agenda, administration officials spent several days discussing the feasibility of returning Abrego Garcia or ensuring that he would be protected from the gang violence he fled as a teenager.
The messages also revealed simmering tensions between Justice Department attorneys who worked the cases in court and lawyers for Homeland Security who were directed to advance the president’s agenda, regardless of legal risks.
Meanwhile, Abrego Garcia was suffering inside El Salvador’s Terrorism Confinement Center, according to his legal team. His attorneys alleged he experienced “severe beatings, severe sleep deprivation, inadequate nutrition, and psychological torture” while locked up inside.
“Last time they put Kilmar Abrego Garcia on a plane, he didn’t know where that plane was going until it landed at the airport in El Salvador,” his attorney Simon Sandoval-Moshenberg told reporters last week. “That’s more or less what they want to do again, and that’s what we’re here to stop.”
