According to court documents reviewed by TIME, the Trump administration had the opportunity to challenge Kilmar Abrego Garcia’s protection against deportation during Trump’s first term but chose not to. In October 2019, an immigration judge ruled that Abrego Garcia should not be deported due to the risk of violent gang threats he would face in El Salvador. Immigration and Customs Enforcement (ICE) had a 30-day window to appeal this decision, but the court documents show that no appeal was filed.
This seemingly minor event was a significant part of Abrego Garcia’s story. He is a Salvadorian sheet metal apprentice residing in Maryland who was wrongly accused of being an MS-13 gang member and mistakenly deported to El Salvador’s CECOT prison by the Trump administration in March. This incident highlights the courts’ primary issue with Trump’s deportation policies: while Trump has the authority to deport individuals, he must do so in accordance with the law.
Abrego Garcia was incarcerated in CECOT prison on March 15. Senator Chris Van Hollen, a Democrat from Maryland, visited Abrego Garcia in El Salvador on Thursday. Van Hollen shared a photo on X of himself sitting with Abrego Garcia at a table with coffee and water. Abrego Garcia was wearing a plaid shirt and a Kansas City Chiefs Super Bowl hat. El Salvador’s President Nayib Bukele responded to the meeting on X, mocking it and stating that Abrego Garcia would not be released, adding that “he gets the honor of staying in El Salvador’s custody.”
Trump administration officials have admitted that Abrego Garcia’s deportation was an “administrative error” but have not taken steps to correct it. On April 10, the Supreme Court ordered the Trump administration to “facilitate” his release from the El Salvador prison and ensure his case is “handled as it would have been” had he not been incorrectly deported. However, the Trump administration has yet to take action.
Instead, the Trump administration has actively sought to convict Abrego Garcia in the court of public opinion. On Wednesday, the Department of Homeland Security (DHS) released a temporary restraining order that Abrego Garcia’s wife had filed against him in 2021, alleging he had “punched and scratched” and “grabbed and bruised” her. The DHS also released police reports detailing his alleged gang affiliation under the headline: “THE REAL STORY: Kilmar Abrego Garcia is an MS-13 Gang member with a History of Violence.”
However, the Supreme Court’s demand is not that Abrego Garcia be proven innocent of any wrongdoing. The court is requiring the Trump administration to adhere to the legal procedures for removing someone from the country.
U.S. District Court Judge Paula Xinis, who is overseeing Abrego Garcia’s case, has mandated that officials from DHS and the State Department provide depositions by April 23 regarding the handling of his removal. She has also allowed Abrego Garcia’s legal team to request documents pertaining to his case.
When the Trump administration attempted to overturn these instructions at the Fourth Circuit Court of Appeals, three federal judges ruled that Trump must comply. Judge J. Harvie Wilkinson III, a conservative judge appointed by Ronald Reagan, stated, “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.” Despite the Trump administration’s claims that Abrego Garcia is a terrorist and MS-13 member, Judge Wilkinson wrote, “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.”
Abrego Garcia’s deportation was initially blocked in 2019 when an immigration judge granted him “withholding of removal.” During the immigration judge’s review of his case, Abrego Garcia was in immigration detention following his arrest by Prince George’s County police in a Home Depot parking lot. A “gang field interview” sheet released by the Justice Department on Wednesday described him as wearing “a Chicago Bulls hat and a hoodie with rolls of money covering the eyes, ears, and mouth of the presidents,” which police described as “indicative of the Hispanic gang culture.”
The immigration judge considered the information provided by DHS alleging Abrego Garcia’s gang affiliations but determined it was insufficient to prove his membership. Instead, the judge gave more weight to his family’s testimony that a separate gang, Barrio 18, in El Salvador had threatened Abrego Garcia with death because his family refused to pay them protection money. Judge David M. Jones acknowledged the case was not clear-cut, writing in his order, “This case is a close call.” The order concluded by stating that “each party has the right to appeal this decision” within 30 days.
This decision was still in effect when Abrego Garcia was put on a plane to El Salvador last month. The Bureau of Immigration Appeals database tracks immigration cases using unique identifiers called “A-Numbers” (Alien Registration Numbers). Abrego Garcia’s entry indicates that his application for “withholding of removal” was approved on October 10, 2019, with the message “No appeal was received for this case” appearing below. The White House, DHS, and ICE have not responded to requests for comment.
John Sandweg, former acting director of ICE during the Obama administration, explained that ICE attorneys typically appeal such decisions if they believe the individual poses a public safety risk. “I do think that’s indicative that they didn’t have serious concerns about this guy from a public safety perspective,” Sandweg said. “Otherwise, in cases where they do, they absolutely appeal.”
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