Kilmar Abrego Garcia, the Salvadoran national at the center of a monthslong deportation legal fight with the Trump administration, could be released from federal custody as early as this week.

Attorneys for Abrego Garcia, who has since been returned to the United States after his initial deportation to El Salvador in March, asked a federal judge in Tennessee on Tuesday to issue an order releasing him from custody once a separate order delaying his release expires Friday. The prospect of Abrego Garcia’s release from the custody of U.S. Marshals sets up a pivotal decision for the administration: whether to push forward with his human smuggling prosecution in Tennessee or turn him over to Immigration and Customs Enforcement to begin deportation proceedings for a second time.

Recommended Stories

• DC will not pursue gun charges for carrying rifles or shotguns: Jeanine Pirro
• DOJ czar Ed Martin pushed for Letitia James to resign during DOJ investigation
• Trump sidesteps confirmation process for top federal prosecutors

On Wednesday, U.S. Magistrate Judge Barbara D. Holmes set a noon Thursday deadline for the government to issue any possible response in opposition to Abrego Garcia’s release. If the Department of Justice does object, a hearing will take place on Monday at 10:30 a.m. local time to handle any additional disputes.

Abrego Garcia, who first entered the country illegally in 2011, has been in federal custody since his return from El Salvador earlier this year. Upon his return to U.S. soil, federal prosecutors in Nashville charged him in June with conspiring to smuggle migrants, a case built on a 2022 traffic stop where he was discovered transporting several individuals who were in the U.S. illegally. At the time, no charges were filed, but the incident resurfaced after his deportation became a high-profile legal battle.

His attorneys argue the charges amount to “vindictive and selective prosecution,” claiming the administration sought to punish Abrego Garcia for challenging its handling of his deportation. Motions on those grounds rarely succeed, but his lawyers, led by New York attorney Sean Hecker and Nashville’s Rascoe Dean, say this is “the rare case where actual vindictiveness is clear from the record.”

Federal judges in both Tennessee and Maryland have paved the way for the Trump administration’s latest set of decisions on how to handle Abrego Garcia moving forward. A pair of judges in Nashville concluded Abrego Garcia was entitled to pretrial release, but his lawyers later switched course out of fear he would be quickly deported. That fear was partly alleviated in July, when U.S. District Judge Paula Xinis in Maryland ordered that he be restored to ICE supervision in Baltimore and that his attorneys receive 72 hours’ notice before any deportation. His legal team has since retained a private security firm to transport him directly to Maryland if released, according to CBS News.

However, upon returning to Maryland, ICE could still take him into custody and begin the process of notice for deportation. Immigration experts previously told the Washington Examiner this would likely tee up a final court fight in which Abrego Garcia could seek to challenge that removal. However, federal law gives the government broad authority to remove people who are not legally authorized to be in the country.

During a July hearing, Justice Department attorney Jonathan Guynn signaled that the federal government would rather take the opportunity to remove Abrego Garcia to a third country than allow him to stay in the country pending his human smuggling trial, which a court has slated for a trial early next year.

“There’s no intention to just put him in limbo in ICE custody while we wait for the criminal case to unfold,” Guynn told Xinis in early July. “He will be removed, as would any other illegal alien in that process.”

While the Trump administration appears to be leaning toward deporting Abrego Garcia, in his Tennessee case, DOJ lawyers have proceeded as if they expect the criminal prosecution to advance in federal court, where U.S. District Judge Waverly Crenshaw has scheduled the trial to begin on Jan. 27. Still, the messaging from the government in his Maryland-based case signals an effort to avoid a trial altogether.

Removing Abrego Garcia from the U.S. would be a relatively uncontroversial matter had it not been for his March deportation to El Salvador, where he was sent despite an immigration judge’s limited order prohibiting deportation only to that country. While Xinis’s ruling temporarily delays his possible second removal, administration officials have openly discussed deporting him to a different country, a method that has borne fruit in other deportation cases where illegal immigrants’ home countries refuse to accept the return of their citizens.

Third-country deportations have proven a useful tool for Trump’s enforcement strategy. With the Supreme Court giving the green light for such deportations earlier this summer, the administration has ramped up removals to third countries, which are places where migrants may not have ties but where removal agreements between governments exist. Early results include deportations to South Sudan and other nations. Trump administration officials say the practice closes loopholes that previously allowed deportable immigrants to remain in the U.S. indefinitely by citing unsafe conditions in their home countries.

SUPREME COURT LIKELY SEALED ABREGO GARCIA’S DEPORTATION FATE, EXPERTS SAY

Tricia McLaughlin, a spokeswoman for the Department of Homeland Security, previously said Abrego Garcia “will never walk America’s streets again,” calling him a “gang member and human trafficker.”

The Washington Examiner contacted DHS for comment.