Lost Chance
During his first term, the Trump administration had a chance to challenge the deportation protections granted to Kilmar Abrego Garcia but opted not to, as revealed by court documents examined by TIME. In October 2019, an immigration judge decided against Abrego Garcia’s deportation, citing the serious gang threats he would encounter upon returning to El Salvador. Trump’s Immigration and Customs Enforcement (ICE) had a month to contest this ruling, yet no appeal was submitted, according to the records.
The Ongoing Narrative
This relatively overlooked episode is a crucial part of the unfolding saga of Abrego Garcia, a Salvadoran apprentice in sheet metal living in Maryland. Wrongly accused of having ties to the MS-13 gang, he was deported by the Trump administration to El Salvador’s infamous CECOT prison in March. This case highlights a significant legal issue regarding Trump’s deportation policies: while the president holds the power to deport individuals, he must do so in accordance with the law.
Encounter in El Salvador
Abrego Garcia was taken to CECOT prison on March 15. Recently, Maryland Senator Chris Van Hollen, a Democrat, made a trip to El Salvador to meet him and posted a photo on X, capturing them at a table with coffee and water in front of them. Abrego Garcia was dressed in a short-sleeved plaid shirt and a Kansas City Chiefs Super Bowl championship hat. President Nayib Bukele of El Salvador mocked the meeting on X, asserting that Abrego Garcia would not be released and claiming, “he gets the honor of staying in El Salvador’s custody.”
Administrative Oversight
Trump administration officials have acknowledged that Abrego Garcia’s deportation was due to an “administrative error,” but they have declined to correct it. On April 10, the Supreme Court ordered the Trump administration to “facilitate” his release from the Salvadoran prison and ensure that his case is processed legally, as if he had never been wrongfully deported. However, no action has been taken by the administration.
Instead, the Trump administration has aimed to tarnish Abrego Garcia’s image publicly. Recently, the Department of Homeland Security released a temporary restraining order filed by Abrego Garcia’s wife in 2021, alleging that he had “punched and scratched” her and “grabbed and bruised” her, along with police reports that highlighted his supposed gang affiliations, all presented under a sensational headline: “THE REAL STORY: Kilmar Abrego Garcia is an MS-13 Gang member with a History of Violence.”
Judicial Actions
What the Supreme Court has mandated is not evidence of Abrego Garcia’s innocence, but rather that the Trump administration adhere to legal protocols for deportation.
U.S. District Court Judge Paula Xinis, who is overseeing Abrego Garcia’s case, has ordered officials from the Department of Homeland Security and the State Department to provide depositions by April 23 regarding the management of his removal and has allowed his legal team to request relevant documents.
When the Trump administration attempted to dismiss these orders at the Fourth Circuit Court of Appeals, three federal judges ruled that the administration must comply. Conservative circuit Judge J. Harvie Wilkinson III, appointed by Ronald Reagan, remarked, “The government is asserting a right to stash away residents of this country in foreign prisons without the semblance of due process that is the foundation of our constitutional order.” Even as the Trump administration labels Abrego Garcia as a terrorist and an MS-13 member, the judge emphasized that he is still entitled to due process. “If the government is confident of its position, it should be assured that position will prevail in proceedings to terminate the withholding of removal order,” he stated.
Case Background
Abrego Garcia’s deportation had been halted in 2019 when an immigration judge granted him “withholding of removal.” At that time, he had been detained by immigration authorities after being arrested by Prince George’s County police in a Home Depot parking lot. A “gang field interview” sheet released by the Justice Department noted that he wore “a Chicago Bulls hat and a hoodie featuring rolls of money covering the eyes, ears, and mouth of the presidents.” Authorities claimed that this attire was “indicative of the Hispanic gang culture.”
The immigration judge reviewed the evidence alleging Abrego Garcia’s gang connections presented by the Department of Homeland Security and found it inadequate to prove his gang membership. Instead, the judge considered testimonies from family members indicating that a rival gang, Barrio 18, had issued death threats against Abrego Garcia due to his family’s refusal to pay protection money. Acknowledging the complexity of the case, the judge stated, “This case is a close call,” and added that “each party has the right to appeal this decision” within 30 days.
This ruling remained in effect when Abrego Garcia was placed on a flight to El Salvador last month. The Bureau of Immigration Appeals tracks immigration case statuses using unique identifiers known as “A-Numbers.” Abrego Garcia’s record shows that his application for “withholding of removal” was approved on October 10, 2019, with a note stating, “No appeal was received for this case.” The White House, DHS, and ICE did not respond to requests for comments.
John Sandweg, who served as the acting director of ICE during the Obama administration, remarked that ICE attorneys typically appeal such decisions if they perceive a public safety concern. “This suggests they didn’t have significant worries about this individual from a public safety standpoint,” Sandweg noted. “In situations where they do, they certainly appeal.”
