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Kilmar Abrego Garcia, a Salvadorian migrant who was erroneously deported to El Salvador before being returned to the U.S. earlier this month to face prosecution, was ordered to be placed into the custody of his brother should he be released from custody by U.S. Immigration and Customs Enforcement.
Abrego Garcia appeared in federal court on Wednesday after the Trump administration challenged a federal judge's orders to release him pending criminal trial.
U.S. Magistrate Judge Barbara Holmes said Sunday that the government failed to prove its case during an arraignment hearing earlier this month that Abrego Garcia was a "serious risk" of fleeing or obstructing justice if he were to be released pending trial for the criminal charges.
"Abrego, like every person arrested on federal criminal charges, is entitled to a full and fair determination of whether he must remain in federal custody pending trial," Judge Holmes said in her order. "The Court will give Abrego the due process that he is guaranteed."
Kilmar Abrego Garcia, a Salvadoran illegal migrant who was deported to El Salvador, is seen wearing a Chicago Bulls hat, in this handout (Abrego Garcia Family/Handout via REUTERS)
Lawyers for the Trump administration almost immediately appealed that order.
Regardless of the court's order, Judge Holmes acknowledged her decision was likely little more than an "academic exercise," as it is almost certain that Abrego Garcia will not be released.
She noted that the Trump administration previously vowed that he would be taken into ICE custody "subject to anticipated removal proceedings that are outside the jurisdiction of this Court."
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This undated photo provided by Murray Osorio PLLC shows Kilmar Abrego Garcia. (Murray Osorio PLLC via AP)
Abrego Garcia will likely be transferred from the U.S. Marshals to ICE custody, which the court will have no control over.
If he is arrested by ICE, Abrego Garcia’s legal team requests he be detained near the Fred D. Thompson Federal Building in Nashville, Tennessee.
Federal authorities have agreed not to deport key witnesses in the trial, and want the same for Abrego Garcia.
Abrego Garcia’s team also asked that he be housed somewhere where he could meet with his legal team easier. However, Nashville does not have a local federal detention facility.
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Kilmar Armando Abrego Garcia traffic stop (Tennessee Highway Patrol)
Holmes also noted she does not have the authority to tell ICE where to detain someone during pretrial.
Abrego Garcia is expected to remain in U.S. Marshal's custody until Holmes decides if she can assign a holding facility. Her decision will likely come after both the defense and prosecution submit their opinions to the court.
During Wednesday’s hearing, Holmes ordered that Abrego Garcia be placed in home detention, in the custody of his brother, if he is released by ICE. If that were to happen, Abrego Garcia will be tracked using location monitoring, such as an ankle monitor.
Under the conditions of release, Abrego Garcia will not be required to pay cash bail. He also cannot violate state or federal law, must cooperate in giving DNA samples, and cannot change any of his contact information, including his telephone number.
Abrego Garcia is permitted to seek employment, must submit a passport to pretrial services, and will be limited to travel in the Middle District of Tennessee and the District of Maryland, and permission to travel must be granted ahead of time.
Additionally, he is required to enroll in anger management counseling, cannot possess firearms or have them in his residence, is not allowed to use drugs without a prescription, cannot have contraband, must remain in contact with law enforcement and cannot communicate with any members of MS-13, Tren de Aragua or any other gangs.
Also on Wednesday, U.S. District Court Judge Waverly D. Crenshaw, Jr. denied the government’s request for a stay on Holme’s order to release Abrego Garcia. In his decision, Crenshaw said the government did not make the "strong showing" required to justify the grant of stay.
Abrego Garcia was returned to the U.S. by Trump officials earlier this month. Upon return, he was immediately taken into custody for federal crimes stemming from a 2022 traffic stop. Court documents show the Justice Department filed the charges against Abrego Garcia on May 21, prompting a flurry of questions as to when the investigation and impaneling of a grand jury would have taken place.
Abrego Garcia's deportation to El Salvador in March was the result of what officials acknowledged was an administrative error. Still, it kicked off a months-long court fight to secure his release and return to U.S. soil, despite a federal court order, and a Supreme Court ruling ordering the administration "facilitate" his return to the U.S., which the government eventually did after months of delay and threats from a federal judge in Maryland to pursue potential contempt proceedings.
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In many ways, his case has become a national flashpoint for President Donald Trump's hard-line immigration crackdown in his second White House term.
Greg Wehner is a breaking news reporter for Fox News Digital.
Story tips and ideas can be sent to Greg.Wehner@Fox.com and on Twitter @GregWehner.