WASHINGTON — President Trump’s lawyers have set a new legal hurdle before the Maryland man who was wrongly deported to El Salvador.
Even if Kilmar Abrego Garcia is returned to the United States, he will be held as an illegal immigrant and can be deported again because he is member of a foreign criminal gang, they said.
The uncompromising statement presented to a Maryland judge echoed the Oval Office meeting between Trump and Salvadoran President Nayib Bukele on Monday.
U.S. Atty. Gen. Pam Bondi insisted Abrego Garcia will not be allowed to enter or remain in this country. “He’s not a Maryland man. He’s part of a foreign terrorist organization. He’s a member of MS-13,” she said.
On Tuesday, U.S. District Judge Paula Xinis launched a two-week effort to dig into the administration’s refusal to “facilitate” his return.
Her findings could propel the case back to the Supreme Court. Last week, the justices agreed the government must “facilitate Abrego Garcia’s release from custody in El Salvador.”
But a statement from the top attorney at the Department of Homeland Security warns that returning to this country could be a limited victory.
The Department of Homeland Security “is prepared to facilitate Abrego Garcia’s presence in the United States,” Joseph Mazzara, the acting general counsel at DHS, said in a sworn statement. If he arrives “at a port of entry,” DHS “would take him into custody … and either remove him to a third country or terminate his withholding of removal because of his membership in MS-13, a designated foreign terrorist organization, and remove him to El Salvador.”
Abrego Garcia was 16 when he fled gangs in his native El Salvador to join his older brother in the United States. He entered the country illegally, but he and his wife say he is not and never has been a member of MS-13.
However, Trump’s lawyers point to an April 2019 decision by an immigration judge who said, based on a police report, that Abrego Garcia was a member of MS-13.
He “was arrested in the company of other ranking gang members and was confirmed to be a ranking member of the MS-13 gang by a proven and reliable source,” wrote immigration Judge Elizabeth Kessler. “[He] failed to present evidence to rebut that assertion.”
Her decision has been called into question recently. It relied on an anonymous source and came from a police officer who was suspended a few months later. Unlike in a criminal case, Abrego Garcia was not given the right to confront or cross-examine the witnesses against him.
His attorneys also say the evidence against him included the fact that he was wearing a Chicago Bulls hat at the time of his arrest.
A few months later, however, the Board of Immigration Appeals upheld the judge’s decision in a brief order.
While Abrego Garcia remained in custody and subject to deportation, he and his new wife sought a bond hearing before another immigration judge in Baltimore.
In October 2019, Judge David M. Jones delved into Abrego Garcia’s flight from gangs in El Salvador and granted him a “withholding of removal.” He did so based on “past persecution” and Abrego Garcia’s “well-founded fear of future prosecution” if he were sent back to his native country.
The Trump administration did not appeal that decision. And following that order, Abrego Garcia was released.
When the Trump administration began its new roundup of alleged foreign gang members, Abrego Garcia was arrested and flown to Texas on March 12.
Three days later, he was put on a plane and flown to El Salvador and locked up in its maximum security prison, despite the “withholding of removal” order.
Since then, Xinis, the 4th Circuit Court and the Supreme Court have all ruled that the administration must “facilitate” Abrego Garcia’s return.
They also suggested he deserves a new hearing to shield him from deportation.
But Trump’s attorneys point instead to the first judge’s decision that found him to be a member of MS-13. Based on that finding, they say, Abrego Garcia is not eligible to remain in the United States.
