NASHVILLE, Tenn. – A Tennessee judge is scheduled to hear arguments Friday about whether Kilmar Abrego Garcia can be released from jail pending the outcome of a trial on human smuggling charges.

In a motion asking U.S. Magistrate Judge Barbara Holmes to order Abrego Garcia detained, Acting U.S. Attorney for the Middle District of Tennessee Rob McGuire described him as both a danger to the community and a flight risk. Abrego Garcia’s attorneys disagree. They point out that he was already wrongly detained in a notorious Salvadoran prison thanks to government error, and argue that due process and “basic fairness” require him to be set free.

Abrego Garcia is a citizen of El Salvador who had been living in the United States for more than a decade before he was wrongfully deported in March. The expulsion violated a 2019 U.S. immigration judge’s order that shielded him from deportation to his native country because he likely faced gang persecution there.

His case quickly became a rallying point for opposition to President Donald Trump’s mass deportation agenda. While the Trump administration described the mistaken removal as “an administrative error,” officials have continued to justify it by insisting that Abrego Garcia was a member of the El Salvadoran gang MS-13. His wife and attorneys have denied the allegations, saying he is simply a construction worker and family man.

The motion for detention pretrial accuses Abrego Garcia of trafficking people, drugs and firearms and of abusing the women he transported, among other claims. It states that human smuggling was Abrego Garcia’s actual job, not construction. It even accuses him of taking part in a murder in El Salvador. However, none of those allegations are part of the charges against him, and at Abrego Garcia’s initial appearance June 6, Judge Holmes warned prosecutors that she can not detain someone based solely on allegations.

One of Abrego Garcia’s attorneys last week called the claims “preposterous,” characterizing them as a desperate attempt by the Trump administration to justify the mistaken deportation three months after the fact.

“There’s no way a jury is going to see the evidence and agree that this sheet metal worker is the leader of an international MS-13 smuggling conspiracy,” private attorney Simon Sandoval-Moshenberg said last week.

In a Wednesday court filing, Abrego Garcia’s public defenders argued the government is not even entitled to a detention hearing — much less actual detention — because the charges against their client are not serious enough.

Although the maximum sentence for smuggling one person is 10 years, and Abrego Garcia is accused of transporting hundreds of people over nearly a decade, his defense attorneys point out that there is no minimum sentence. The average sentence for human smuggling in 2024 was just 15 months, according to court filings.

Ohio State University law professor César Cuauhtémoc García Hernández said he would not be surprised if the judge releases Abrego Garcia because he’s too well-known to pose a flight risk.

“The thought that this is somebody who can disappear or who might violate the law without anyone noticing seems farfetched,” García Hernández said.

But even if Abrego Garcia is released on the criminal charges, Immigration and Customs Enforcement might immediately move to detain and deport him, García Hernández said.

Most people in ICE custody who are facing criminal charges are deported, he said, and the idea that ICE would take Abrego Garcia to his court proceedings in Tennessee is “next to unheard of.”

“This is an unusual situation in that most criminal defendants are not household names in the Oval Office,” García Hernández said. “I would hope the folks in the Trump administration have thought this through.”

The decision to charge Abrego Garcia criminally prompted the resignation of Ben Schrader, who was chief of the criminal division at the U.S. Attorney’s Office for the Middle District of Tennessee. He posted about his departure on social media on the day of the indictment, writing, “It has been an incredible privilege to serve as a prosecutor with the Department of Justice, where the only job description I’ve ever known is to do the right thing, in the right way, for the right reasons.”

He did not directly address the indictment and declined to comment when reached by The Associated Press. However, a person familiar with the matter who spoke on the condition of anonymity to discuss a personnel matter confirmed the connection.

Although Abrego Garcia lives in Maryland, he is being charged in Tennessee based on a May 2022 traffic stop for speeding in the state. The Tennessee Highway Patrol body camera video of the encounter that was released to the public last month shows a calm exchange between officers and Abrego Garcia. It also shows the officers discussing among themselves their suspicions of human smuggling before sending him on his way. One of the officers says, “He’s hauling these people for money.” Another says Abrego Garcia had $1,400 in an envelope.

Abrego Garcia was not charged with any offense at the traffic stop. Attorney Sandoval-Moshenberg said in a statement after the video’s release that he saw no evidence of a crime in the footage.

Meanwhile, the lawsuit over Abrego Garcia’s mistaken deportation isn’t over. Abrego Garcia’s attorneys have asked a federal judge in Maryland to impose fines against the administration for contempt, arguing that it flagrantly ignored court orders forseveral weeks to return him. The Trump administration said it will ask the judge to dismiss the lawsuit, arguing that it followed the judge’s order to return him to the U.S.

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Finley reported from Norfolk, Virginia.