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U.S. Magistrate Judge Barbara D. Holmes acknowledged that Kilmar Abrego Garcia will almost certainly be re-arrested by the Department of Homeland Security despite her order for his release from federal custody, but that didn’t stop her from eviscerating the Trump administration’s embarrassing attempts to paint him as a hardened criminal and gang member.
Abrego Garcia was among several hundred undocumented men whom President Donald Trump disappeared to El Salvador’s prison system without due process earlier this year.
Top Trump officials’ repeatedly claimed that they had no ability to secure Abrego Garcia’s return, despite an order from the Supreme Court to do so. Earlier this month, the Trump administration abruptly changed course and returned the Maryland father to the U.S. — but under the guise of trying him for alleged involvement in a “human smuggling” operation. The charge is based on a 2022 traffic stop in which other allegedly undocumented people were in the vehicle — as well as, apparently, an awful lot of dubious hearsay.
In a scathing court order made public on Monday, Holmes dismantled the Justice Department accusations against Abrego Garcia practically point by point.
Holmes spent a significant amount of the brief dissecting the government’s insinuations that Abrego Garcia inherently posed a danger to minors, and should therefore be denied release on bail — starting with the fact that human trafficking and human smuggling are distinct crimes. “To be clear, the offenses of which Abrego is charged are human smuggling, not human trafficking. Although ‘smuggling’ and ‘trafficking’ were sometimes used interchangeably during the detention hearing, there is a distinct difference between the two under the law,” she wrote. “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.”
Furthermore, Judge Holmes stated plainly — on several occasions — that the Justice Department had failed to meet the burden of proof that Abrego Garcia was a flight risk, or that his release from detention would pose a risk to the integrity of his case. She also noted that the evidence bolstering the government’s claims of alleged smuggling of minors were based largely on hearsay, or even contradictory testimony, from three individuals — two men currently in detention who were offered deals for their testimony, and a woman who is related to one of the men.
“Even without discounting the weight of the testimony of the first and second male cooperators for the multiple layers of hearsay, their testimony and statements defy common sense,” Homes wrote. “Both male cooperators stated that, other than three or four trips total without his children, Abrego typically took his children with him during the alleged smuggling trips from Maryland to Houston and back, some 2,900 miles round-trip, as often as three or four times per week. The sheer number of hours that would be required to maintain this schedule, which would constantly be more than 120 hours per week of driving time, approach physical impossibility.”
She also rejected the government’s claims that Abrego Garcia was a dangerous member of MS-13, and that the group could somehow obstruct the case. “The government cannot simply rely on the general reputation of a particular street gang to satisfy its burden,” Holmes wrote. “The government’s evidence that Abrego is a member of MS-13 consists of general statements, all double hearsay […] the government’s evidence of Abrego’s alleged gang membership is simply insufficient.”
“Given the volume of resources committed to the government’s investigation of Abrego since April 2025 […] the court supposes that if timely, more specific, concrete evidence exists of Abrego’s alleged MS-13 gang membership or a consistent pattern of intentional conduct designed to threaten or intimidate specific individuals, the government would have offered that evidence at the detention hearing,” she added.
Holmes did concede, however, that despite the lack of evidence supporting the claims made against Abrego Garcia by the Justice Department, her granting him release would likely be followed by his swift detention by immigration authorities.
While the judge said her order was thus a largely “academic exercise,” she wrote that the “foundation of the administration of our criminal law depends on the bedrock of due process.”
“Abrego, like every person 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,” she added.
