NASHVILLE, Tenn. (WTVF) — Magistrate Judge Barbara D. Holmes filed a memo on Sunday planning to order the release of Kilmar Abrego Garcia pending trial, while also considering that deportation could still be a possibility.

Holmes said in her 51-page memo that maybe the only circumstance the government and Abrego Garcia agree on is that in this case, Abrego Garcia will likely remain in custody regardless of the outcome of the issues raised in the government’s motion for detention.

This all comes as the man who was once mistakenly deported to an El Salvador prison earlier this year, pleaded not guilty to two federal human smuggling charges. One charge carried a maximum sentence of up to ten years in prison for every undocumented person Abrego Garcia allegedly transported across state lines.

Abrego Garcia, who entered the country illegally years ago remained in the US after a 2019 immigration judge’s order prevented him from being deported back home to El Salvador where it was believed he would face credible threats from local gangs.

The Trump administration deported Abrego Garcia anyway, but were later directed by the United States Supreme Court to facilitate his return. Months later and instead, Abrego Garcia was being returned in handcuffs to answer for new charges in Tennessee.

The two-count indictment unsealed the moment Abrego Garcia returned to the U.S., accused him of being a part of a conspiracy “to bring undocumented aliens to the United States from countries such as Guatemala, El Salvador, Honduras, Ecuador and elsewhere, ultimately passing through Mexico before they cross into Texas.”

A hearing was set to formally read Abrego Garcia his charges and determine if he should be detained pending trial, but prosecutors reminded the Court that their decision likely wouldn’t change much.

Attorneys said no matter the decision, Abrego Garcia’s immigration hold meant there was a good chance he would be detained the moment he was released for any reason.

Holmes acknowledged that even though this could make the Court’s determination seem “little more than an academic exercise,” she wrote that prosecutors did not do enough to prove key factors that would have warranted the detention hearing.

Specifically, Holmes said the government could not prove that the case involved a minor, a serious risk that Abrego Garcia would flee, and that Abrego Garcia would obstruct justice or otherwise interfere with the integrity of the proceeding.

“Overall, the strength of the factors weighing in favor of release outweighs all other factors in favor of detention, which compels Abrego’s release, particularly given the clear default under the law that persons who have not yet been convicted of a crime should be released pending trial,” Holmes said.

Holmes wrote that Abrego Garcia, like anyone else arrested on federal criminal charges, “is entitled to a full and fair determination of whether he must remain in federal custody pending trial. The Court will give Abrego the due process that he is guaranteed.”

Federal prosecutors have since filed a motion to appeal Holmes’ decision and stay her order for Abrego Garcia’s release pending trial.

Pending any changes based on those motions, a hearing has been scheduled for June 25 to review the conditions of release. The United States Marshal has also been ordered to produce Abrego Garcia for the hearing.

THE CHARGES

Abrego Garcia’s charges stem from a 2022 Tennessee Highway Patrol traffic stop and the word of cooperating witnesses who prosecutors said pointed the finger at Abrego Garcia as a “prolific smuggler.”

Prosecutors argued that Abrego Garcia posed “a significant danger to the community” for his alleged involvement in a massive human smuggling ring.

Body camera footage that prosecutors say illustrates this point shows Abrego Garcia behind the wheel of a Chevrolet Suburban heading east on Interstate 40 on Nov. 30, 2022.

Troopers stopped him for suspicion of speeding and inside found nine other Hispanic men.

They were later heard on camera suggesting that Abrego Garcia was “hauling these people for money.”

Abrego Garcia, meanwhile, is heard telling troopers that he was traveling back home to Maryland after finishing a construction job in St. Louis, Missouri.

Homeland Security Special Agent Peter Joseph testified that his office used license plate reader technology to determine that the SUV had not been anywhere near the St. Louis area in at least 12 months.

Instead, LPR data flagged the SUV around Houston, Texas just days before the traffic stop.

NewsChannel5 Investigates obtained the highly redacted body camera footage from the traffic stop where we only heard Abrego Garcia mention Houston, Texas, once.

That’s when Abrego Garcia told troopers that the SUV belonged to his boss, who was from Houston.

NewsChannel5 Investigates pointed to inconsistencies between the indictment, which said Abrego Garcia misled troopers about traveling from Houston, while a DHS report says Abrego Garcia told them about Houston.

Joseph said the DHS report was not accurate, and that Abrego Garcia attempted to mislead troopers by saying he was traveling from St. Louis.

He later said he interviewed one of the troopers in the body camera footage, who was certain that Abrego Garcia was smuggling undocumented migrants.

Troopers instructed passengers in the SUV to write down their names, dates of birth, and home addresses.

Joseph said they identified that six out of the nine passengers were in the country illegally, but that the investigation was ongoing.

Prosecutors said the last name on the list appeared to have a birth year of 2007, meaning they were approximately 15 years old back in 2022.

They claimed this proves that at least one minor was smuggled through the conspiracy, but argued that many others, including his children, were also a part of several trips allegedly made by Abrego Garcia.

The Court found that the roster’s creation and its connection to Joseph’s testimony were too indirect and unreliable to be given significant weight as evidence.

Holmes wrote that the roster the government relied on was a photograph taken by a THP trooper, not Joseph – a first layer of hearsay — of a document prepared at the request of troopers – a second layer of hearsay – by the occupants of the vehicle driven by Abrego Garcia – a third layer of hearsay.

Defense attorneys also argued that the “7” in the written birth year of 2007 appears to have been modified from a “1.”

“The photograph of the roster is crucial evidence of the government’s contention that the offense of which Abrego is charged involved a minor victim, which necessitates a high level of reliability. The government’s entire argument that Abrego transported a minor on November 30, 2022, depends on the last digit in the birth year being 7 rather than 1. That the roster photograph invites this kind of scrutiny and supposition to resolve any doubts diminishes its reliability.“ Holmes wrote.

Holmes wrote that the basis of the government’s argument is that Abrego Garcia placed at least one minor in harm’s way during these trips across the country.

She argued that if she ruled in favor of the prosecution’s expanded definition of minors being victims in this case, it would allow pretrial detention for anyone who was even remotely close to a minor in the process of a crime.

Holmes also points out that Abrego Garcia has not been charged with crimes against minors and the involvement of a minor is not an element of these charges.

“Further, the Court cannot find from the evidence presented by the government that unaccompanied minors, even when smuggled, are inextricably ‘victims’ within the meaning of § 3142(f)(1)(E). The Court supposes – or at least hopes – that if children are victimized as part of their undocumented entry into this country, the government would pursue appropriate human trafficking charges against the human traffickers,” Holmes said.

Joseph also interviewed at least five cooperating witnesses, some of whom said Abrego Garcia smuggled not only minors but also fellow gang members and firearms.

At least one cooperating witness claimed that Abrego Garcia was affiliated with the notorious gang MS-13.

Holmes agreed with defense attorneys that they shouldn’t give much weight to the testimony of people who, in some cases, were related and acknowledged their roles in a human smuggling operation.

We learned in court that one of the cooperating witnesses secured himself an early release from federal prison and a delay of a sixth deportation in exchange for providing information to the government.

Other cooperating witnesses have since requested similar agreements to testify against Abrego Garcia, which defense attorneys say should also face scrutiny.

Holmes ends her findings by writing that she does not believe Abrego Garcia presents a serious flight risk, despite facing possible deportation the moment he’s released pending trial.

She says while Abrego Garcia does not have ties to Middle Tennessee, Holmes hasn’t seen enough evidence to suggest Abrego Garcia would not return to court.

“To the extent, the government asserts that Abrego Garcia is a flight risk because he may be deported and then unable to appear, the Court finds no merit in that argument. A person’s likely removal from the jurisdiction of this Court against his will is not a risk that he will flee,” Holmes wrote.

Prosecutors have suggested that Abrego Garcia’s new-found publicity as the center of the immigration crackdown debate has given him more resources from sympathetic strangers to flee.

Holmes says the government offered no evidence to conclude or even assess the likelihood that Abrego Garcia would do so.

She also says that an alleged connection to MS-13 and prior orders of protection obtained by Abrego Garcia’s wife in 2022 and 2021, does not mean Abrego Garcia is likely to obstruct justice or put any lives in danger.

Abrego Garcia’s wife Jennifer Vasquez, who was in court during the hearing, spoke earlier that day and gave an impassioned speech pleading with the Court to release her husband.

Holmes said her findings are not meant to diminish the seriousness of the allegations made by Vasquez in years past, but she has to consider the context and purpose of why the evidence is now being offered.

She says it’s important to remember that the petitions were dismissed within one month of being issued without a final evidentiary hearing, and there’s no evidence that Abrego Garcia violated either order.

Testimony about gang affiliation, meanwhile, appeared to be inconsistent according to Holmes, who writes that some cooperating witnesses only said Abrego Garcia was “familial” with purported gang members.

Others believed that Abrego Garcia was a member of MS-13, but gave no evidence as to how they came to that conclusion.

Holmes said you would think if there was any gang affiliation, that might reflect in a criminal history, but Abrego Garcia has no reported criminal history of any kind.

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

Holmes said that if the concern is over whether cooperating witnesses will be safe as they wait for trial, the Court can impose certain conditions before Abrego Garcia’s release.

She says the same can be done to protect Vasquez and their children, as well as limit any travel within Maryland and to necessary trips to Middle Tennessee for court appearances and attorney meetings.

Groups like CASA, which is an advocacy organization providing resources for immigrant communities, have also written a letter offering to provide employment, healthcare, and other social support services to Abrego Garcia.

Holmes will decide this week what if any conditions should apply in Abrego Garcia’s release pending trial.