Kilmar Armando Abrego Garcia, a citizen of El Salvador who’d been living in the US, was wrongfully deported to El Salvador along with a tranche of deportees flown from the US to El Salvador on 3 flights. El Salvador President Nayib Bukele has accepted immigrants deported from the US for detention in El Salvador, most notably at the gigantic new CECOT prison, in exchange for payment from the US. Abrego Garcia’s case raises questions about whether others on those flights, or more broadly those deported by the Trump administration, were rightfully deported. I question why the media isn’t looking into the other deportees (maybe they have and haven’t found anything untoward, yet). In this post I focus on the Abrego Garcia case.

Facts about Abrego Garcia

• Citizen of El Salvador.
• Entered the US illegally “sometime around 2011“.
• “2019 court order said he could not be returned to El Salvador” according to CNN. This is was due to a “clear probability of future persecution“. I’m unclear whether he was still classified as an illegal alien after that order (CNN says he “had not been legally in the US prior to his deportation”). An immigration judge had ordered in 2019 that Abrego Garcia not be deported to El Salvador, and the Trump 45 administration did not challenge the order at the time. All indications from my research on this are that he was indeed wrongfully deported.
• The Trump administration said he was deported by mistake due to a clerical error, and then walked that back.
• Arrested March 12 in Maryland by ICE agents “due to his prominent role in MS-13” according to a court declaration from a senior ICE official.
• Deported to El Salvador March 15.
• Abrego Garcia’s wife, Jennifer Vasquez Sura, requested a protective order against him in 2021. She says that they’ve since worked through their issues and that he’s a loving husband and father.
• Abrego Garcia “has not been charged with or convicted of any crime“.
• Was held at the CECOT maximum security prison in El Salvador. Sen. Chris Van Hollen reported that he’d been moved to another prison.
• Salvadoran President Nayib Bukele has refused to release him, referring to him as a “terrorist” in comments to reporters in the Oval Office.

Gang member or not?

The Trump administration alleges that Abrego Garcia is a member of the MS-13 gang, a designated foreign terrorist organization. According to Politico, US District Judge Paula Xinis found “the government had presented no evidence that Abrego Garcia was a gang member”.

I can think of several reasons the government might allege he’s in a gang:

• Presuming they don’t carry photo IDs with advanced anti-counterfeit features identifying them as card-carrying gang members, it could be difficult to prove or disprove gang membership. (Not that I know how gangs work.) The Trump administration might see this as room to maneuver.
• The order prohibiting his deportation to El Salvador cites threats to his life from gangs in his home country. Is Trump trying to undermine that narrative by alleging a contradictory offense?
• He is a gang member, and they’re only releasing tenuous circumstantial and/or conjectural evidence, not the evidence. It’s possible they’re holding such real evidence close to the vest because they want this to play out for a while longer and then show that we have been supporting a gang member. That would be a problem for many reason, one being that you don’t play games like that with the courts.

His purported membership in the MS-13 gang is not legal grounds for disregarding the 2019 anti-deportation court order. He is still entitled to due process in which the government must present this accusation in court. The government might be able to persuade a court to jail him stateside while the proceedings are proceeding. The government can’t legally deport him without the anti-deportation order being lifted.

Defying the courts

The Trump administration has changed its story on Abrego Garcia.

It was an “administrative error”

First, the DOJ said he was deported by mistake. A 3/31 court filing states “On March 15, although ICE was aware of his protection from removal to El Salvador, Abrego Garcia was removed to El Salvador because of an administrative error“. When asked by the judge why the US couldn’t simply ask for Abrego Garcia’s return, Erez Reuveni, the immigration lawyer handling the case on behalf of the DOJ, said “The first thing I did when I got this case on my desk is ask my clients the same question,” adding that he did not get a direct answer. Attorney General Pam Bondi fired (or put on leave?) Reuveni.

It was on purpose

More recently, the Trump administration has doubled down and said it was not a mistake. “The only mistake that was made is a lawyer put an incorrect line in a legal filing that since has been relieved of duty,” Stephen Miller said. CNN reports that “The Justice Department hasn’t changed its characterization of the error that sent Abrego Garcia back to El Salvador.”

I don’t have a good handle on whether or not the government willfully violated a court order in deporting Abrego Garcia. Suffice it to say, the government was more in hurry to deport aliens than it was concerned about doing the diligence to ensure a “mistaken” deportation did not occur. His warrantless arrest on March 12 was putatively about his suspected membership in the MS-13 gang. This administration has been very willing to flout orders to bring him back (perhaps with some assistance from the Republican wing of the Supreme Court).

Constitutional implications of disregarding the courts

According to an April 17 ruling by the US 4^th Circuit Court of Appeals: “The government asserts that Abrego Garcia is a terrorist and a member of MS-13. Perhaps, but perhaps not. Regardless, he is still entitled to due process.” If Abrego Garcia is provably a member of MS-13, why doesn’t the US “facilitate” his return to the US, prove his MS-13 membership in court (where he and his lawyers would have the opportunity to answer the charges), and then petition the courts for his deportation based on him being a bad guy? Either the administration doesn’t believe their “evidence” will stand up, or they deliberately want to pursue this as a test case to normalize the executive branch running roughshod over the courts. Or both.

Judge Xinis ordered April 4 that the government “facilitate and effectuate the return of [Abrego Garcia] to the United States by no later than 11:59 PM on Monday, April 7.” The government appealed on April 7, and the Chief Justice John Roberts stayed the order. On April 10, the Supreme Court issued this order. The Supreme Court’s ruling didn’t contradict the lower court, but, excluding Sotomayor’s addition (see below), it was not the full-throated demand to follow the lower court order that it should have been. Essentially, the Supreme Court ruling agreed on facilitate from the lower court order but demanded clarification on effectuate “with due regard for the deference owed to the Executive Branch in the conduct of foreign affairs”. This opened the door for the Trump administration to cite the fact that Abrego Garcia is in a foreign jurisdiction as an obstacle (see below). I can’t tell if the Republican justices were offering Trump a way out or trying to duck a fight with Trump. Either way, it makes the Supreme Court look weak and ineffectual.

Why it matters to all of us

In normal times, these issues seemed esoteric. Trump’s all-out campaign to consolidate executive power at the expense of the rule of law has forced us to consider constitutional protections we always took for granted.

Trump is trying to establish that he and his subordinates can flout court orders (with the possible exception of the Supreme Court) and prevail. This particular thrust of executive overreach cannot be considered in isolation. We must consider how Trump’s push to expand other aspects of executive power are interrelated. Consider presidential pardons. This is one power that Trump can leverage to undermine the courts. He can pardon anyone held in contempt or ordered arrested by a court. He can also dangle the promise of a pardon to get his minions to do more misdeeds as payment for a pardon. Executive overreach in exercising different powers has a mutually compounding effect.

The Trump administration has employed the following tactics to undermine due process:

• Keeping detention locations secret from the courts and lawyers. See my post on Mahmoud Khalil.
• Preventing communication with defendants’ lawyers.
• Sending defendants to foreign countries/prisons.
• Disregarding court orders.

If America doesn’t turn this trend around, US citizens could be deported. Will they decide to deport me because I publicly criticize Trump? If they suspend my passport, would that keep me from being able to return?

Disappearing people

The Trump administration is trying to set a precedent where once they’ve removed someone to another country, they can wash their hands of any obligation to ever bring them back. In the Supreme Court’s ruling April 10, Justice Sonia Sotomayor’s commentary put it well:

“The Government’s argument, moreover, implies that it could deport and incarcerate any person, including U. S. citizens, without legal consequence, so long as it does so before a court can intervene.”

Foreign affairs

For someone who likes to brag about arm-twisting other countries, Trump is mighty timid about asking Bukele to “facilitate” Abrego Garcia’s return to the US. Believe me, Trump can get El Salvador to return Abrego Garcia. This is not a situation where Trump has to send in the Marines or anything like that. I doubt anyone buys the Trump administration’s argument that its hands are tied because Abrego Garcia is no longer in US custody. Remember Trump’s assertion about taking Greenland “one way or the other”? Suddenly, when it’s El Salvador, Trump is hyper-sensitive about a country’s sovereignty and not interfering with its internal affairs.

Ironically, the Supreme Court’s April 10 ruling expressed concern for a US district court’s intrusion into the executive branch’s foreign policy prerogatives, but it was silent on how that issue works the other way around. If Trump gets a pass on having to get Abrego Garcia back to the US, this can get foreign countries and leaders into the business of undermining US court orders, where they provide cover to Trump by “refusing” to allow their citizens to return to a country whose courts ruled they were wrongfully deported. The Republican Supreme Court disregarding this issue is shocking but not surprising.

Immigrants

There’s a reason why Trump is zeroing in on immigrants. Anti-immigrant sentiment runs strong, and Trump knows he has overwhelming public support to “crack down” on immigrants. Even less of America is going to stick up for immigrants than for their own. I’m not even really sticking up for immigrants so much as for the rule of law. If I don’t stand against injustice as long as it’s targeted at others, who will stand up for me when it’s my turn for injustice? Trump is counting on Americans not to think this way. It’s up to us to show that he underestimated us.

Other stuff

I mainly wanted to discuss the implications of the Abrego Garcia case on the rule of law and individual rights. There are two developments related to this case that I also want to comment on.

Shameless exploitation

The story of Rachel Morin’s gruesome murder deserves the widespread coverage it’s gotten. Victor Martinez-Hernandez, an illegal alien from El Salvador with an extensive rap sheet, raped and murdered Rachel while she was on a hiking trail. Martinez-Hernandez was convicted April 14.

There’s something especially infuriating about foreigners, especially illegal aliens, who come to our country and commit crimes against us. I guess there’s something about such a hellish betrayal of our hospitality, though that pales in comparison to murder, citizen or not. My personal opinion is that if Martinez-Hernandez is indeed guilty as charged, he should be exterminated promptly and without any hand-wringing about how life’s been unfair to him or whatever. I hope he got a fair trial and receives a just sentence (dissatisfying as it might be). For now I presume he was convicted rightly (hope Trump’s remarks didn’t influence the jury).

I don’t fault Trump for voicing how infuriating it is. I do have a problem when the president erodes the presumption of innocent-until-proven-guilty by railing against accused criminals before they’ve been convicted. More galling is the Trump administration’s messaging conflating the unrelated cases of 2 Salvadoran illegal aliens: Abrego Garcia, who has not been charged with a crime, and the rapist/murderer Martinez-Hernandez. Watch the White House press conference here, in which White House Press Secretary Karoline Leavitt recites a laundry list (for which I need evidence, as Leavitt and everyone else close to Trump has zero credibility with me) on why Abrego Garcia is a terrible human being, in a bid to dehumanize him (dehumanization being a common anti-immigrant tactic). Leavitt then yields the floor to Patty Morin, Rachel’s mother, who recounts the horror of her daughter’s murder and ordeal of the aftermath.

Trump is trying make our willingness to let his administration flout the law in the Abrego Garcia case into a litmus test on whether we condone allowing vermin like Martinez-Hernandez into the US. It’s a false choice, patently ridiculous, and cynical, but many Americans will consume that narrative like candy. It’s good politics with the Trump base.

Van Hollen visit

Senator Chris Van Hollen, D-Maryland, traveled to El Salvador to meet Abrego Garcia. The media made it sound like he would be denied a meeting. Then, April 17, news stories ran with photos of Abrego Garcia and Van Hollen at what appears to be a hotel.

There are 2 reasons this is a positive sign:

• Abrego Garcia was able to meet a US senator, who could then report on his well-being and whereabouts and bring him messages from the outside world (his wife, lawyers, etc.), and also let him know his story has been widely covered in the US media.
• That the meeting took place suggests Bukele decided to allow it. Until then, he had been in lockstep with Trump on Abrego Garcia. I’m curious if this represents a split with Trump or if Trump privately gave his approval.

Margaritas

This seems minor, but it’s telling. Bukele posted on X about Abrego Garcia “sipping margaritas with Sen. Van Hollen in the tropical paradise of El Salvador!”. Van Hollen said they drank water and coffee and that government officials had placed the margarita-looking glasses on the table but that they never drank from them. This is a bizarre thing to stage. It’s like Bukele went out of his way to wear his disingenuousness on his sleeve and didn’t care how obvious it was to the rest of the world. Really, he didn’t think Van Hollen would speak out that it was staged if he portrayed the senator and Abrego Garcia as pals consuming margaritas together?

One more thing

If Abrego Garcia is returned to the US, I hope he doesn’t do anything to make those of us supporting his return regret it. It wouldn’t change the validity of the arguments I’ve made, but it would undermine them in the court of public opinion. This is why I generally discourage turning victims into into heroes (unless it’s a victim who also performs heroic deeds). People always disappoint when you look closely enough. This is about the rule of law, not how great a human being Abrego Garcia is.