ALSO SEE: Judge Orders Kilmar Abrego Garcia’s Release From Jail Before Trial, but ICE Plans to Detain Him

U.S. Magistrate Judge Barbara D. Holmes ruled that Kilmar Abrego García is eligible for release from criminal custody and raised questions about the government’s allegation that he is a threat to society.

A federal judge on Sunday ruled that Kilmar Abrego García, a Maryland resident wrongly deported to El Salvador, is eligible for release from criminal custody, saying the government’s allegations that he is a flight risk or a danger to the community are based on problematic testimony and scenarios that “defy common sense.”

U.S. Magistrate Judge Barbara D. Holmes said the government “failed” to prove the Trump administration’s allegations that Abrego García poses enough of a danger to society that he should be held while he awaits trial on charges that he participated in a migrant smuggling ring for nearly a decade. She issued her 51-page decision more than a week after a highly unusual, hours-long hearing in U.S. District Court in Nashville earlier this month.

U.S. officials returned Abrego García, who is married to a U.S. citizen, to the country in early June after forcibly deporting him and more than 200 others to a notorious megaprison in El Salvador in March. Multiple federal judges and the Supreme Court have ruled that his removal was unlawful because an immigration judge in 2019 granted him protection from being deported to his native country after finding that he could face persecution from gangs there.

Holmes scheduled a hearing for Wednesday to arrange the conditions for his release while also acknowledging that Abrego García is unlikely to be freed from federal custody. U.S. immigration officials have said they are likely to detain him for civil deportation proceedings, she wrote.

Still, the judge’s ruling marked a defeat for the Justice Department’s criminal investigation into Abrego García, which his lawyers say is an effort to cover up the administration’s illegal actions in this case. A federal investigator said he was assigned to the case on April 28, after the Supreme Court ordered the government to facilitate Abrego García’s return to the United States.

Acting U.S. attorney Robert McGuire had argued during the June 13 hearing in Nashville that Abrego García posed a danger to the public because he is an alleged MS-13 gang member and smuggler who transported adults and minors from the border to Maryland for money.

“It is a dangerous operation,” McGuire said during the hearing.

While Holmes’s ruling was solely focused on whether Abrego García should be detained until trial, she expressed reservations about some of the evidence the government presented — some of which is likely to resurface again should his case proceed to trial. Much of it, she said, consisted of “double hearsay” and does not back up officials’ claims that he is a member of the transnational gang.

“The government alleges that Abrego is a longtime, well-known member of MS-13, which the Court would expect to be reflected in a criminal history, perhaps even of the kind of violent crimes and other criminal activity the government describes as typically associated with MS-13 gang membership,” she wrote in the decision. “But Abrego has no reported criminal history of any kind.”

McGuire immediately asked the court to stay and rescind Holmes’s order, claiming without evidence that Abrego García could be deported in the near future if he is transferred to immigration custody. Records show there has been no change to his immigration court case since he won protection from deportation in 2019.

While some gang members lack criminal records, Holmes wrote that the existing evidence did not merit locking him up pending trial. She noted that some of the cooperating witnesses have serious criminal histories and are hoping to dodge deportation or avoid prison sentences for helping with the case.

For instance, she noted that testimony provided during the hearing by Homeland Security Investigations Special Agent Peter Joseph involved a witness who is “a two-time, previously deported felon, and acknowledged ringleader of a human smuggling operation, who has now obtained for himself an early release from federal prison and delay of a sixth deportation by providing information to the government.”

A second witness requested release from jail and delay of his deportation as well, she said.

She also noted that their allegations of Abrego García’s smuggling activities “defy common sense.” The two cooperators alleged that Abrego García often brought his children on smuggling trips between Maryland and Houston three or four times a week.

“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,” she wrote.

McGuire had also argued that he posed a danger because his wife, Jennifer Vasquez Sura, had taken out temporary protection orders against him in 2020 and 2021. But Holmes noted that the allegations were several years old and that both were dismissed within a month and without a final evidentiary hearing. Before his deportation, the couple was raising three children in Maryland.

The indictment, filed under seal last month, accuses Abrego García of conspiracy to transport aliens and unlawful transportation of undocumented aliens from 2016 to 2025 as a member of the MS-13 gang. The allegations center on a 2022 traffic stop in Tennessee, where some officers suspected that he was smuggling migrants, the reason the charges are filed in Nashville.

Abrego García has pleaded not guilty to the charges.

The June 13 hearing was the first time his family and the public had a glimpse of Abrego García since U.S. officials had brought him back from El Salvador days earlier to face the smuggling charges.

Before his deportation, Abrego García had most recently worked as a sheet-metal apprentice, Holmes noted. He is a member of the Sheet Metal, Air, Rail and Transportation union. If released, the judge said the union has offered to continue his apprenticeship and help him find work. CASA, an immigrant advocacy group which accompanied Abrego García’s family to the hearing in Nashville, also has offered to connect Abrego García to health care and mental health services after his long incarceration in El Salvador.

However, the judge noted that he is likely to end up in civil immigration detention. The government could seek to overturn the order barring his removal to El Salvador or attempt to secure an order to remove him to another country, though his lawyers have said he may also continue to qualify for humanitarian protection.

Department of Homeland Security spokeswoman Tricia McLaughlin said on X in response to the ruling that “he will never go free on American soil.”