Kilmar Abrego Garcia and a Court’s Dire Warning

Apr 18, 2025

Kilmar Abrego Garcia’s Case

There is a lot of information floating around about the Maryland man Kilmar Armando Abrego Garcia, his immigration status, how he ended up in an El Salvadoran gulag, and what the courts are doing about it. To work through what’s actually transpired and combat the lies the Trump administration is actively spreading about Mr. Abrego Garcia, let’s start at the beginning.

Kilmar Abrego Garcia was born in El Salvador, but in 2011 fled to the U.S. when he was only 16 years old to escape threats of violence and murder from the Barrio 18 gang, which had been extorting his family for money. Mr. Abrego Garcia entered the U.S. alone and without documentation and went to live with his brother in Maryland. He remained in the U.S. undocumented for eight years without a single arrest or incident.

He made money by doing day labor for cash and was standing in a Home Depot parking lot waiting to be picked up to do some of that work when he was arrested in March of 2019 for not being a legal resident of the United States. The arresting detective claimed in a “Gang Field Interview Sheet” that Mr. Abrego Garcia was a member of the gang MS-13 for three reasons. First, the detective claimed Mr. Abrego Garcia’s clothing proved he was a gang member because it was indicative of MS-13 attire—one of the damning articles of clothing was a Chicago Bulls baseball hat. Second, he alleged that two of the other men arrested with Mr. Abrego Garcia were members of MS-13 and therefore Mr. Abrego Garcia was guilty by association. And third, the detective cited an unidentified “confidential informant” who said that Mr. Abrego Garcia was a member of the MS-13 “Westerns clique;” however, the “Westerns clique” operates in New York, a state where Mr. Abrego Garcia had never lived nor even visited.

Disturbingly, when Mr. Abrego Garcia’s attorney inquired into the details of her client’s arrest, she discovered that the police department had no incident report for Mr. Abrego Garcia and could only find an incident report mentioning the three men with whom Mr. Abrego Garcia had been arrested. More disturbing still, when Mr. Abrego Garcia’s attorney sought to speak to the detective who had claimed her client was an MS-13 member, she was informed that the detective had been suspended two weeks after arresting Mr. Abrego Garcia for divulging confidential police secrets to a sex worker in exchange for sex, raising serious questions about the detective’s credibility.

While the immigration judge assigned to Mr. Abrego Garcia’s case expressed doubt over the MS-13 gang allegations, he nonetheless decided to keep him in custody during his immigration proceedings because, during such proceedings, the burden is on the defendant to prove that he would not pose a danger to others, and the judge felt that Mr. Abrego Garcia had not sufficiently refuted the detective’s claims (disregarding the fact that Mr. Abrego Garcia’s attorney was unable to cross-examine the detective nor the alleged informant). The judge’s decision not to grant Mr. Abrego Garcia bond was later upheld on administrative appeal for the same reason—that Mr. Abrego Garcia did not meet his burden of proof.

Ultimately, in October of 2019, Mr. Abrego Garcia won his immigration case and was released to return home. Apparently, ICE and the police no longer felt the supposed gang affiliations they had relied on to keep him incarcerated during the court proceedings held any merit. He was never found to be a gang member, charged with or convicted of any crime, nor accused of any wrongdoing.

While Mr. Abrego Garcia won his immigration case, he was not granted asylum because he was time-barred from doing so—immigrants cannot seek asylum if they have been in the U.S. for more than a year before applying for relief, and Mr. Abrego Garcia had been living in the U.S. for eight years by the time he was arrested in the Home Depot parking lot. Instead, the judge granted Mr. Abrego Garcia a “withholding of removal” order.

A withholding of removal order requires an applicant to meet a burden of proof that is “five times higher” than what is required of asylum applicants. Asylum seekers must only prove that their fear of persecution is “well-founded,” while those seeking a withholding of removal order must convince a judge that their persecution would be “more likely than not” if forced to return to their home country. Mr. Abrego Garcia met this burden and was granted a withholding of removal order, earning the ability to live and work in the U.S. legally. He has met with ICE once a year since winning his case and has never been accused of or convicted of any crime. He is now married with three children, a union member and sheet metal apprentice, and is pursuing his vocational license at the University of Maryland.

The Illegal Flights to El Salvador and the Alien Enemies Act

On March 12^thMr. Abrego Garcia was pulled over by ICE while his autistic son sat in the backseat, informed that his immigration status had changed, and arrested with no apparent warrant. ICE called his wife, threatening to turn their son over to child authorities if she didn’t come pick him up immediately. Mr. Abrego Garcia was subsequently transferred to an ICE detainment center in Texas, flown to El Salvador along with 237 other unidentified individuals in direct violation of a U.S. district court order, and put in a terrorist confinement center called CECOT, a supermax prison known for its egregious human rights violations.

How did Mr. Abrego Garcia end up in that El Salvadoran gulag? According to the administration, it was an “administrative error.” To understand what that means requires an explanation of the nuances of a withholding of removal order. Unfortunately, a withholding of removal order does not offer the same protections as asylum; in fact, before a judge can grant a withholding of removal order, they must first issue a final deportation order and then bar the government from executing it. Thus, while someone with a withholding of removal order may live and work in the U.S. legally and is protected from being deported to their home country, the government is still technically permitted to deport the individual to a different country if that country is willing to accept them. While such a removal is always a possibility for anyone in Mr. Abrego Garcia’s position, it remains incredibly remote. Deportation to a third country almost never happens when a withholding of removal order is granted; in 2020, for example, ICE deported only 21 people with such orders in place.

But because Mr. Abrego Garcia’s withholding of removal order necessitated a final deportation order, the Trump administration did in fact have a legal right to deport him—to any country other than the one to which they sent him. The administration literally could have sent Mr. Abrego Garcia anywhere else in the world, but they put him on a plane to the one country from which they were barred from deporting him. Sending a man back to the one country from which he is protected from being returned is a pretty grave “administrative error.”

While the administration admitted to this “administrative error,” it’s not immediately obvious that the error was unintentional. Since the planes departed on March 15th, the administration has continued to claim without evidence that every single passenger on board was a violent and dangerous gang member, including Mr. Abrego Garcia, but more and more reports are emerging that refute those claims. In fact, a recent Bloomberg investigation discovered that 90% of the individuals sent to CECOT have no criminal record at all. One individual, Andry Hernandez Romero, is a gay makeup artist who came to the U.S. through the asylum process to escape persecution. Others identified include a musician, a psychology student, a barber, and an Uber driver.

More concerning still, evidence has emerged that the administration knowingly sent innocent individuals to CECOT—reports have recently come out about a 19-year-old, Merwil Gutiérrez, who was arrested even after an ICE agent realized he was the wrong person. While the teenager’s cousin watched ICE agents arrest Mr. Gutiérrez from behind the door of their shared apartment building, he heard an agent say, “He’s not the one,” but his partner reply, “Take him anyway.”

Mr. Gutiérrez came to the U.S. legally with his father, has no criminal record, and has been living and working in New York while they await their court appointment to officially request asylum. The only reason Merwil Gutiérrez’s father, Wilmer Gutiérrez, discovered his son’s location was because he found his name on a list uncovered by CBS News identifying the individuals illegally flown to El Salvador on March 15th.

The administration continues to claim that all of the men sent to the El Salvadoran gulag are “terrorists, human rights abusers, gangsters and more,” but the evidence doesn’t support it. Is it possible that the administration is actually telling the truth for some of these men? Sure. But it is their job to prove their allegations before imposing any punishments, let alone disappearing people to a foreign gulag. And that is the crux of the matter: None of these men were afforded their constitutionally guaranteed right to due process, a right to which the Supreme Court has now twice affirmed they are all entitled.

As an appellate court wrote about Mr. Abrego Garcia’s case: “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 the government is confident of its position, it should be assured that position will prevail in proceedings to terminate the withholding of removal order.” David Bier, associate director of immigration studies at the libertarian Cato Institute, similarly explained, “The government certainly could have sought to prove that [Mr. Abrego Garcia] was not eligible for any form of immigration relief, but it did not do so.”

While Mr. Abrego Garcia technically had a final deportation order in place (though was not to be deported to the one place the administration sent him), over one hundred men on the March 15th flights to El Salvador had no such orders in place and were in fact legally in the country as far as we know. The Trump administration was attempting to deport them without granting them their constitutional right to due process by invoking the arcane Alien Enemies Act and claiming the U.S. is being “invaded” by a Venezuelan gang known as Tren de Aragua. Under the Act, the president would be entitled to deport all members of Tren de Aragua, and the administration’s goal is to use the Act to deport Venezuelans en masse without due process.

In the case of the March 15th flights—its first attempt to use the Act—the Trump administration intentionally defied its constitutional obligation to prove that the men it disappeared to CECOT were in fact dangerous gang members before sending them to El Salvador. More serious still, the administration did everything in its power to ensure that the men did not receive their right to due process, attempting to fly them out of the country before anyone could take action to protect them.

The Alien Enemies Act requires the president to make “public proclamation” of its invocation before exercising any powers granted under it, but, as Justice Sonia Sotomayor sets out in her dissent to the Supreme Court’s opinion regarding its use, “President Trump did just the opposite. In what can be understood only as covert preparation to skirt both the requirements of the Act and the Constitution’s guarantee of due process, the Department of Homeland Security (DHS) began moving Venezuelan migrants from Immigration and Customs Enforcement detention centers across the country to the El Valle Detention Facility in South Texas before the President had even signed the Proclamation.”

Trump apparently signed the executive order invoking the Alien Enemies Act in the dead of night, and ICE began loading detainees onto planes hours before the order was even made public. When attorneys of a few of the detainees caught wind of the administration’s scheme, they immediately filed suit—at 1:12am the morning of March 15th. And when it became clear that the court in which the suit had been filed planned to consider issuing a temporary restraining order (TRO) that would temporarily prevent the administration from deporting anyone under invocation of the Alien Enemies Act, instead of waiting for the court to rule, the administration sped up its efforts to deport the very people the court planned to protect.

When the court ultimately did grant the TRO and demanded that the administration keep the detainees in U.S. custody “[h]owever that’s accomplished, whether turning around a plane or not [dis]embarking anyone on the plane,” the administration “deliberately and gleefully” denied the court’s order and disappeared the detainees anyway. Members of the administration then bragged about their actions on social media. “The Secretary of State [Marco Rubio], for instance, retweeted a post in which, above a news headline noting [the] Court’s Order to return the flights to the United States, the President of El Salvador wrote: ‘Oopsie . . . Too late 😂😂.’”

As of today, the administration continues to refuse to grant the disappeared detainees their constitutional right to due process. In Mr. Abrego Garcia’s case, on April 4th a U.S. district judge ordered the administration to “facilitate” and “effectuate” his return, but the administration refused and sought relief from the Supreme Court. On April 10th, the Supreme Court unanimously upheld the U.S. district judge’s ruling ordering the government to “facilitate” the return of Mr. Abrego Garcia so he could receive due process, but requested that the judge clarify what she meant by “effectuate” to ensure she did not encroach on the executive branch’s power over foreign affairs.

Instead of obeying the Supreme Court’s ruling, the administration continues to openly and flagrantly defy the order to facilitate Mr. Abrego Garcia’s return. In fact, on Monday, in a clearly choreographed Oval Office meeting between Trump and El Salvadoran President Nayib Bukele (who calls himself the “world’s coolest dictator”), both leaders absurdly professed their supposed powerlessness to return Mr. Abrego Garcia. Worse still (if you can believe it were possible), at that same meeting, Trump was caught on a hot mic expressing his desire to deport “homegrowns” (i.e., U.S.-born citizens) to CECOT next.

A Court’s Dire Warning

Which brings us to why Mr. Abrego Garcia’s fate matters to you. You don’t have to care about his future, but you should care about your own. And if we let Trump and his administration get away with brazenly violating basic constitutional rights and defying court orders when it comes to immigrants, citizens will be next. Think I’m overreacting? An appellate judge appointed by Ronald Reagan doesn’t.

On Wednesday, after the U.S. district court judge overseeing Mr. Abrego Garcia’s case reissued her demand that the administration take all possible steps to “facilitate” the man’s return, the administration asked an appellate court to stop her. Less than 24 hours after receiving the request and before Mr. Abrego Garcia’s attorneys even submitted their response, the 4th U.S. District Court of Appeals unanimously denied the administration’s request. In its ruling, which was penned by Reagan appointee Judge J. Harvie Wilkinson, III, the court issued a warning that we all should heed:

“If today the Executive claims the right to deport [immigrants] 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?”

The court even cited Trump’s hot mic confession to emphasize the gravity of its warning. According to the court, to allow the government to defy a court order and not grant Mr. Abrego Garcia his right to due process “would reduce the rule of law to lawlessness and tarnish the very values for which Americans of diverse views and persuasions have always stood.”

We are at a crossroads in America. The very liberties we have taken for granted all our lives are being threatened by this administration. But hope is not yet lost. We have already begun to demonstrate the power of the people to affect change:

As a result of the public outcry against Mr. Abrego Garcia’s illegal removal, Maryland Senator Chris Van Hollen flew down to El Salvador this week and demanded to see the resident of his state. And because of Senator Van Hollen’s tenacity, he succeeded! We now have confirmation that Mr. Abrego Garcia is still alive (and proof for the courts that the U.S. government does in fact have the ability to make demands of El Salvador regarding the people we disappeared to their gulag).

We must continue to speak out and demand action from our representatives to continue to turn the tide. There is still time to save our democracy, but as one legal scholar warned, “It’s getting late quickly.”

I will leave you with an adaptation of how the appellate court closed their ruling, and with a recommendation to read that ruling in full. It is only six pages long and contains so little legalese that it seems to have been written with the public in mind. We are in a dangerous moment, so much so that even a Reagan-appointed judge is issuing a warning about our future. If we heed it, we can turn this precarious moment into an opportunity to retake control of our democracy:

“It is…all too possible to see in this case an incipient crisis, but it may present an opportunity as well. We yet cling to the hope that it is not naïve to believe [the public] perceive[s] the rule of law as vital to the American ethos. This case presents [our] unique chance to vindicate that value and to summon the best that is within us while there is still time.”