Prosecutors seek pre-trial detention hearing for Abrego Garcia following his return

Federal prosecutors in Tennessee on Monday asked a magistrate judge for a pre-trial detention hearing in the human smuggling case against Kilmar Abrego Garcia, after he was brought back to the U.S. on Friday to face charges.

The prosecutors contend the government is entitled to a pre-trial detention hearing because the charged conspiracy allegedly involved the transportation of "undocumented, unaccompanied children," according to court documents.

The filing comes after Magistrate Judge Barbara Holmes on Friday told prosecutors at Abrego Garcia's initial court appearance that the crimes alleged in the indictment did not presumptively entitle the government to a detention hearing, and asked for supplemental briefing.

Abrego Garcia was brought back to the U.S. from his native El Salvador to face criminal charges in Tennessee, following a series of court battles in which the Trump administration repeatedly said it was unable to bring him back. He had been deported in March to El Salvador's CECOT mega-prison -- despite a 2019 court order barring his deportation to that country due to fear of persecution -- based on the Trump administration's claimed that he was a member of the criminal gang MS-13, which his wife and attorneys deny.

A two-count indictment unsealed Friday alleges that Abrego Garcia participated in a yearslong conspiracy to haul undocumented migrants from Texas to the interior of the country, involving the domestic transport of thousands of noncitizens from Mexico and Central America, including some children, in exchange for thousands of dollars.

Prosecutors contend in Monday's filing that the alleged presence of minors on at least some of the trips entitles the government to a detention hearing. If the hearing is granted, the government says a special agent with Homeland Security Investigations will testify "that he learned during the course of the investigation that the Defendant and other members of the conspiracy transported minors in an unsafe manner."

According to the filing, the agent would testify that one of Abrego Garcia's alleged co-conspirators told investigators that Abrego Garcia "would sometimes travel with young children and/or family members as 'cover' for his illegal trafficking," and that the children "were often seated on the vehicle's floorboard so that the alien transportees, who had paid other co-conspirators for the travel, could have seats. This would allow more paying aliens to be transported and increase the financial gain of the conspiracy," the filing states.

The government also contends that Abrego Garcia poses "a serious risk of flight" and "serious risk that he and/or persons acting on his behalf will obstruct justice and/or intimidate the witnesses against him."

Prosecutors acknowledge in their filing that Abrego Garcia would almost certainly be immediately taken in custody by ICE if Judge Holmes were to deny their motion for pre-trial detention. But they ask the Court to consider, for the sake of argument, the possibility that he "would have an enormous reason to flee" if he were not immediately detained by ICE.

The government also raises the argument that Abrego Garcia's "new-found prominence" puts him in a "unique and unignorable position to potentially use the sympathy of misguided strangers to further his evasion of the United States government, were he to be released."

Abrego Garcia's alleged MS-13 ties also put him at risk of attempting to obstruct justice or intimidate potential witnesses against him, including his alleged co-conspirators, prosecutors argue.

"The United States would submit that at least one co-conspirator has described that the Defendant has previously used his membership in MS-13 not just to facilitate his illegal activity in the smuggling conspiracy but also to intimidate others in the conspiracy who attempted to confront him about the treatment of female smuggling victims and his smuggling of firearms and drugs which added to the conspiracy's risk of detection and were not a goal of the overall conspiracy," the filing said.

Abrego Garcia's attorneys are expected to file a response to the government's detention motion on Wednesday.

Arguments over the government's motion for pre-trial detention are scheduled to take place Friday during Abrego Garcia's arraignment on charges.

In a separate filing in federal court in Maryland on Sunday, lawyers for Abrego Garcia argued that their court case seeking his return is not over until the government is "held accountable" for "its blatant, willful, and persistent violations of court orders at excruciating cost to Abrego Garcia and his family."

In April, U.S. District Judge Paula Xinis ordered the Trump administration to facilitate Abrego Garcia's return to the United States, and the ruling was subsequently affirmed by the U.S Supreme Court.

Following Abrego Garcia's return Friday, the Trump administration filed a notice of compliance with Judge Xinis saying it had "successfully facilitated Abrego Garcia's return" and asking that the complaint be dismissed.

In Sunday's filing, Abrego Garcia's lawyers argued that, despite his return, the case is "not moot" because the court continues to have a role "to ensure that [Abrego Garcia's] case is handled as it would have been had he not been improperly sent to El Salvador."

To characterize the Trump administration as "having complied" with Judge Xinis' order to facilitate Abrego Garcia's return is "pure farce," his attorneys said in the filing.

The lawyers said the Trump administration "has acted not just in contempt of multiple court orders but with open defiance towards its coequal branch of government, the judiciary."

"Instead of facilitating Abrego Garcia's return, for the past two months Defendants have engaged in an elaborate, all-of-government effort to defy court orders, deny due process, and disparage Abrego Garcia," they said.

The criminal investigation that led to the charges was launched in April, after Abrego Garcia was deported to El Salvador, as federal authorities began scrutinizing the circumstances of a 2022 traffic stop of Abrego Garcia by the Tennessee Highway Patrol, according to sources. Abrego Garcia was pulled over for speeding in a vehicle with eight passengers and told police they had been working construction in Missouri.

In Sunday's court filing, Abrego Garcia's attorneys called the government's return of Abrego Garcia to face criminal charges "its latest act of contempt."

The government "arranged for Abrego Garcia's return, not to Maryland in compliance with the Supreme Court's directive to 'ensure that his case is handled as it would have been had he not been improperly sent to El Salvador,' but rather to Tennessee so that he could be charged with a crime in a case that the Government only developed while it was under threat of sanctions," they said.

In the filing, Abrego Garcia's attorneys said the Trump administration "continued to insist" they did not have the power to return Abrego Garcia to the U.S. even after the Tennessee indictment was filed under seal in May. The Trump administration "has always had the ability to return Abrego Garcia," the attorneys contended.

"The Government's convenient ability to return Abrego Garcia in time for a press conference unveiling his indictment puts the lie to its previously feigned powerlessness to comply with this Court's injunction," they said in reference to Attorney General Pam Bondi's announcement Friday afternoon that Abrego Garcia was back in the United States.

A Justice Department official, when contacted for comment, referred ABC News to Deputy Attorney General Todd Blanche's statement at Friday's press conference that he believed the Maryland case was now moot.

"There's a big difference between what the state of play was before the indictment and after the indictment," Blanche said. "And so the reason why he is back and was returned was because an arrest warrant which was presented to the government and in El Salvador. So there's a big difference there as far as whether it makes the ongoing litigation in Maryland moot -- I would think so."

Abrego Garcia's lawyers said they are entitled to examine in discovery whether government officials acted in good faith, and said the case "remains live" given the Trump administration's "continuing threat of removal." Judge Xinis in April ordered government officials to testify under oath through expedited discovery in order to resolve Abrego Garcia's wrongful deportation.

ABC News' Alexander Mallin and Katherine Faulders contributed to this report.