NASHVILLE, Tenn. (AP) — A Tennessee judge on Sunday ordered the release of Kilmar Abrego Garcia, whose mistaken deportation has become a flashpoint in President Donald Trump’s immigration crackdown, while he awaits a federal trial on human smuggling charges. But he is not expected to be allowed to go free.

At his June 13 detention hearing, prosecutors said U.S. Immigration and Customs Enforcement would take Abrego Garcia into custody if he were released on the criminal charges, and he could be deported before he has a chance to stand trial.

U.S. Magistrate Judge Barbara Holmes has scheduled a hearing for Wednesday to discuss the conditions of Abrego Garcia’s release. The U.S. government has already filed a motion to appeal the judge’s release order.

Holmes acknowledged in her ruling Sunday that determining whether Abrego Garcia should be released is “little more than an academic exercise” because ICE will likely detain him. But the judge wrote that everyone is entitled to the presumption of innocence and “a full and fair determination of whether he must remain in federal custody pending trial.”

Holmes wrote that the government failed to prove that Abrego was a flight risk, that he posed a danger to the community or that he would interfere with proceedings if released.

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

Abrego Garcia has pleaded not guilty to the smuggling charges that his attorneys have characterized as an attempt to justify the deportation mistake after the fact.

The acting U.S. attorney for the Middle District of Tennessee, Rob McGuire, argued on June 13 that the likely attempt by ICE to try to deport him was one reason to keep him in jail.

But Holmes said then that she had no intention of “getting in the middle of any ICE hold.”

“If I elect to release Mr. Abrego, I will impose conditions of release, and the U.S. Marshal will release him.” If he is released into ICE custody, that is “above my pay grade,” she said.

The judge suggested that the Department of Justice and the Department of Homeland Security could work out between themselves whether the government’s priority is to try him on the criminal charges or deport him. No date has been set for the trial.

Will Allensworth, an assistant federal public defender representing Abrego Garcia at the detention hearing, told Holmes that “it’s not necessarily accurate that he would be immediately deported.”

A 2019 immigration judge’s order prevents Abrego Garcia, who had been living in Maryland, from being deported to his home country of El Salvador, Allensworth said in court. That’s because he faces a credible threat from gangs there, according to court papers.

The government could deport him to a third country, but immigration officials would first be required to show that third country was willing to keep him and not simply deport him back to El Salvador, Allensworth said.

The smuggling charges stem from a 2022 traffic stop for speeding in Tennessee during which Abrego Garcia was driving a vehicle with nine passengers. Although officers suspected possible smuggling, he was allowed to go on his way with only a warning. He has pleaded not guilty.

At the detention hearing, McGuire said cooperating witnesses have accused Abrego Garcia of trafficking drugs and firearms and of abusing the women he transported, among other claims. Although he is not charged with such crimes, McGuire said they showed Abrego Garcia to be a dangerous person who should remain in jail pretrial.

Abrego Garcia’s attorneys have characterized the smuggling case as a desperate attempt to justify the mistaken deportation. The investigation was launched weeks after the U.S. government deported Abrego Garcia and the Supreme Court ordered the administration to facilitate his return amid mounting public pressure.

The U.S. is now expected to try to deport him again with much of the world watching and the outcome hard to predict.

Most people in ICE custody who are facing criminal charges are not kept in the U.S. for trial but deported, Ohio State University law professor César Cuauhtémoc García Hernández said.

The U.S. will likely try to deport Abrego Garcia quickly without going before an immigration judge, the professor said. The government would not need a conviction to deport him because Abrego Garcia came to the U.S. illegally.

“The legal standard is laxer,” García Hernández said. “The government’s argument is on stronger legal footing.”

However an immigration judge rules, the decision can be appealed to the Board of Immigration Appeals, García Hernández said. And the board’s ruling can then be contested in a federal appeals court.