As the controversy over the deportation of Kilmar Abrego Garcia from Maryland to El Salvador has raged, the Trump administration has sought to focus the public’s attention on Abrego Garcia’s alleged membership in MS-13, a violent international gang. The White House, Department of Homeland Security (DHS) and Department of Justice (DOJ) have waged an aggressive information campaign to highlight the allegations. The administration’s strategy is clear: Portray those who criticize the manner in which Abrego Garcia was deported as being soft on gang violence and terrorism.
Attorney General Pam Bondi has described Abrego Garcia as “one of the top MS-13 members” and “a terrorist.” Tricia McLaughlin, an Assistant Secretary for Public Affairs at DHS, accused him of involvement in “human trafficking.” And Sebastian Gorka, a counterterrorism official at the National Security Council, suggested that critics were “technically aiding and abetting criminals and terrorists,” which is a “crime.”
However, such statements should not distract Americans from the very real legal and constitutional issues at stake. Even if everything the administration alleges about Abrego Garcia were true, it would not justify the way he was arrested and deported. The government could have presented its evidence before an immigration judge, the federal district court in Maryland, or in criminal proceedings as it has done in prosecuting cases of other alleged MS-13 members. Instead, it chose to deport Abrego Garcia with clear disregard for the right to due process, violating an immigration order in the process (which even the administration itself admits). While this crisis is ongoing, the administration has made no effort to comply with a Supreme Court ruling to “facilitate” his release.
Abrego Garcia’s case isn’t about his alleged gang membership. It’s about the rule of law, and whether it will hold. Consider the following basic facts and our assessment of the procedural record.
First, the Trump administration admitted to violating (albeit due to an “administrative error” in their words) a 2019 immigration order prohibiting the U.S. government from deporting Abrego Garcia to El Salvador.
On Oct. 10, 2019, a U.S. Immigration Judge granted Abrego Garcia a “withholding of removal” – meaning the U.S. government was barred from deporting him to El Salvador. As the judge explained, the “withholding of removal” did not grant Abrego Garcia asylum inside the United States; it “confers only the right not to be deported to a particular country.” In Abrego Garcia’s case, the judge found that he should not be deported to El Salvador because he faced credible threats of persecution from El Salvadorian gang members (who may now be housed with him in prison). The “withholding of removal” was issued during the first Trump administration, yet the U.S. government did not challenge it at the time.
By deporting Abrego Garcia to El Salvador, the second Trump administration violated the immigration judge’s order. Robert Cerna, an Acting Field Office Director Enforcement and Removal Operations at the U.S. Immigration and Customs Enforcement (ICE), subsequently admitted that Abrego Garcia’s deportation to El Salvador was a mistake. “This removal was an error,” Cerna wrote in a court declaration. “Through administrative error, Abrego Garcia was removed from the United States to El Salvador.”
Erez Reuveni, a Justice Department lawyer, also conceded during court that Abrego Garcia’s deportation to El Salvador was a mistake. “Our only arguments are jurisdictional,” Reuveni said. “He should not have been sent to El Salvador.” Following the hearing, the Justice Department fired Reuveni, an apparent enforcement of Attorney General Bondi’s first-day memorandum requiring “zealous advocacy.”
Second, the Trump administration admittedly violated Abrego Garcia’s due process rights by failing to give him the opportunity to contest his deportation on or before Mar. 15.
The Trump administration did not seek to terminate the 2019 “withholding of removal” before deporting Abrego Garcia to El Salvador on Mar. 15. Nor did it afford Abrego Garcia the opportunity to contest his deportation – an independent and clear violation of his Fifth Amendment right to due process.
On Apr. 4, District Judge Paula Xinis issued a preliminary injunction, ordering the government to effectuate Abrego Garcia’s return to the United States. Judge Xinis’s opinion was published on Apr. 6. In it, the judge noted that Abrego Garcia alleges that the Trump administration’s “forced removal to El Salvador without any process constitutes a clear constitutional violation.”
“This the Defendants also concede,” Judge Xinis wrote, meaning the Trump administration conceded that it violated Abrego Garcia’s right to due process.
The right to due process is enshrined in the Fifth Amendment, which states that “[n]o person” shall “be deprived of life, liberty, or property, without due process of law.” Even though the Trump administration conceded that Abrego Garcia’s right was violated, “for completeness,” Judge Xinis “briefly addresses why the parties are correct.”
“To succeed on a Fifth Amendment due process claim,” Judge Xinis wrote, “the plaintiff must show that he possesses ‘a constitutionally cognizable life, liberty, or property interest’; that he was deprived of that interest because of ‘some form of state action’; and ‘that the procedures employed were constitutionally inadequate.’”
Judge Xinis went on to rule that Abrego Garcia’s cases satisfies these conditions and he would likely succeed in bringing his due process claim. Not only was Abrego Garcia deprived of process to contest his deportation to El Salvador (which was prohibited by the “withholding of removal”), putting a stronger point on it, Judge Xinis wrote:
“Defendants deprived Abrego Garcia of this right without any procedural protections due to him. Indeed, nothing in the record suggests that Abrego Garcia received any process at all.” (emphasis in original)
In an opinion filed on Apr. 17, the U.S. Court of Appeals for the Fourth Circuit again confirmed that the Trump administration had violated Abrego Garcia’s due process rights. The opinion was written by Circuit Judge J. Harvie Wilkinson III, a longtime conservative jurist and supporter of executive authority. (In 2003, Judge Wilkinson wrote the opinion holding that the President, as Commander-in-Chief, could indefinitely detain a U.S. citizen captured in Afghanistan without a hearing; a decision overturned by the U.S. Supreme Court.)
In Abrego Garcia’s case, Judge Wilkinson wrote:
It is difficult in some cases to get to the very heart of the matter. But in this case, it is not hard at all. 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. Further, it claims in essence that because it has rid itself of custody that there is nothing that can be done.
This should be shocking not only to judges, but to the intuitive sense of liberty that Americans far removed from courthouses still hold dear.
Judge Wilkinson made another key point as well. “Perhaps” Abrego Garcia “is a terrorist and a member of MS-13,” as the Trump administration alleges, “but perhaps not.”
“Regardless, he is still entitled to due process,” Judge Wilkinson wrote. “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.” That is, if the Trump administration is right and Abrego Garcia is a member of MS-13, then it should have been able to demonstrate it within a constitutionally mandated process.
Abrego Garcia’s case isn’t about his alleged gang membership. It’s about the rule of law, and whether it will hold.
Third, the Trump administration is openly flouting a Supreme Court ruling to “facilitate” Abrego Garcia’s release.
On Apr. 10, the Supreme Court ruled that Judge Xinis had “properly” required “the Government to ‘facilitate’ Abrego Garcia’s release from custody in El Salvador and to ensure that his case is handled as it would have been had he not been improperly sent to El Salvador.”
To date, more than one week later, there is no evidence that the Trump administration has taken any action to “facilitate” Abrego Garcia’s release.
On Apr. 14, four days after the Supreme Court’s ruling, Trump met with El Salvador President Nayib Bukele in the Oval Office. Trump easily could have requested Bukele’s assistance in releasing Abrego Garcia from custody. Instead, the presidents attempted to justify Abrego Garcia’s continued imprisonment in El Salvador.
Stephen Miller, a longtime Trump advisor, interjected to offer his view of the matter. Miller completely mischaracterized the Supreme Court’s ruling. “And the Supreme Court said the District court order was unlawful and its main components were reversed 9-0 unanimously stating clearly that neither Secretary of State nor the President could be compelled by anybody to forcibly retrieve a citizen of El Salvador from El Salvador, who again is a member of MS-13,” Miller said. (For more on that, see Ed Whelan, “Stephen Miller’s Brazen Misrepresentation of Abrego Garcia Ruling,” National Review.)
Since the Oval Office meeting on Apr. 14, the Trump administration has continued to openly mock the idea that Abrego Garcia will be released.
This case is about the rule of law, not allegations about Abrego Garcia’s gang membership
It is likely that the Trump administration will continue to focus on Abrego Garcia’s alleged membership in MS-13 in the coming days. But this case is not about those allegations, which the administration could have raised in a court of law.
Instead, this case is about the Trump administration’s defiance of the courts and denial of due process – a most basic constitutional right. An immigration judge ruled that Abrego Garcia could not be deported to El Salvador. The Trump administration deported him to the country anyway. A district court, an appellate court, and the Supreme Court have all ruled that the Trump administration must seek to remedy this error. Thus far, the Trump administration has failed to comply.
“The Executive possesses enormous powers to prosecute and to deport, but with powers come restraints,” Judge Wilkinson wrote. “If today the Executive claims the right to deport without due process and in disregard of court orders, what assurance will there be tomorrow that it will not deport American citizens and then disclaim responsibility to bring them home?”
That is not a stretch of imagination, Trump has recently said he wants “homegrown criminals” to be next.