NASHVILLE, Tenn. – Kilmar Abrego Garcia is expected to be released from jail in Tennessee on Wednesday, only to be taken into immigration custody.

The Salvadoran national whose mistaken deportation became a flashpoint in the fight over President Donald Trump’s immigration policies has been in jail since he was returned to the U.S. on June 7, facing two counts of human smuggling.

On Sunday, U.S. Magistrate Judge Barbara Holmes ruled that Abrego Garcia does not have to remain in jail ahead of that trial. On Wednesday afternoon, she will set his conditions of release and allow him to go, according to her order. However, both his defense attorneys and prosecutors have said they expect him to be taken into custody by U.S. Immigration and Customs Enforcement as soon as he is released on the criminal charges.

In addition, federal prosecutors are appealing Holmes’ release order. Among other things, they expressed concern in a motion filed on Sunday that Abrego Garcia could be deported before he faces trial. Holmes has said previously that she won’t step between the Department of Justice and the Department of Homeland Security. It is up to them to decide whether they want to deport Abrego Garcia or prosecute him.

Abrego Garcia pleaded not guilty on June 13 to smuggling charges that his attorneys have characterized as an attempt to justify his mistaken deportation in March to a notorious prison in El Salvador.

Those charges stem from a 2022 traffic stop for speeding in Tennessee during which Abrego Garcia was driving a vehicle with nine passengers. At his detention hearing, Homeland Security Special Agent Peter Joseph testified that he did not begin investigating Abrego Garcia until April of this year.

Holmes said in her Sunday ruling that federal prosecutors failed to show that Abrego Garcia was a flight risk or a danger to the community. He has lived for more than a decade in Maryland, where he and his American wife are raising three children.

However, Holmes referred to her own ruling as “little more than an academic exercise,” noting that ICE plans to detain him. It is less clear what will happen after that. Although he can’t be deported to El Salvador — where an immigration judge found he faces a credible threat from gangs — he is still deportable to a third country as long as that country agrees to not send him to El Salvador.