Dancing On The Head Of A Pin For An MS-13 Member -- The Problem Is Small And The Solution Is Simple

The vexing issue is the insistence by an Article III Judge that she can dictate to the Article II Executive how to correct the problem under threat of judicial sanction.

Let me begin with one observation — the Opinion issued on April 6, 2025, by District of Maryland District Judge Xinis is an over-the-top diatribe that parrots every claim made by the advocates for Kilmar Abrego Garcia as if they were truths etched in stone tablets. She recites the allegations set forth in the Complaint as if they have been litigated and resolved, ignoring the fact that there is much in the Complaint that is contrary to the VERY LIMITED EVIDENCE that was before her.

She held a hearing on April 4, 2025, and at the conclusion of the hearing she granted the plaintiffs’ motion for injunctive relief. The Opinion explaining her decision was published two days later.

But the hearing took place one day after District Judge Boasberg in D.C., 39 miles away, held a very contentious hearing in the matter involving the invocation of the Alien Enemies Act and removal of a large number of members of the Tren de Aragua (TdA) criminal gang based in Venezuela, seemingly in violation of his prior injunction. During the TdA hearing, Judge Boasberg’s comments certainly suggested he thought the Administration has intentionally violated his order — later determined to have been made without jurisdiction — that everyone being removed pursuant to the proclamation needed to be returned to the United States.

Judge Xinis is presiding over a case where the Administration admitted that Abrego Garcia was placed on one of those planes — not under the AEA proclamation but because he was an illegal alien with a final Order of Removal — due to an “administrative error.” In 2019 an Immigration Judge had granted Abrego Garcia “Withholding of Removal” that prevented him from being deported back to his home country, El Salvador. Judge Xinis had ORDERED the Administration to “facilitate and effectuate” the return of Abrego Garcia to the United States —whatever that means — setting the deadline for Monday, April 7, at 11:59 pm.

Both Tren de Aragua and MS-13 — the gang affiliation of Abrego Garcia, which is not in serious doubt as set forth herein — have been declared “terrorist organizations” by the Trump Administration pursuant to a federal statute giving it the authority to do so, whether district judges like it or not.

There is nothing about the process leading to Hilmar Abrego Garcia’s return to El Salvador that is hard to understand. One error was made – but the nature of that error is such that events that predated his deportation back to El Salvador have made it harmless. Below is the entire saga in story-book form – details coming from various police and court records — followed by an explanation of the very simple solution along with the political reason why this simple solution is turning out to be so difficult to put in place.

Abrego Garcia, along with three others, were detained by Maryland local police on March 28, 2019. One detective immediately recognized one of the four as an MS-13 member — “Bimbo” — known to him from previous contacts. That individual had been encountered multiple times by the “Prince Georges County Gang Unit MS-13 Intelligence Squad.” The MS-13 problem is so bad they have an entire Gang Unit with its own Intelligence Squad dedicated to identifying and investigating MS-13 members. “Bimbo” has an extensive criminal record with multiple convictions.

A second individual – not confirmed as an MS-13 member – had tattoos indicative of Hispanic gang membership. Eyes, ears, and mouths covered by skulls which are meant to emphasize “see no evil, hear no evil, speak no evil” and communicate the need to stay silent. A past proven and reliable source of information identified this second person as an MS-13 member with the gang name of “Maniaco.” This individual also had a calf tattoo known to represent high level MS-13 members.

Abrego Garcia was wearing a Chicago Bulls hat – images of a bull’s head with horns is indicative of an MS-13 member in good standing. The same source of information identified Abrego Garcia as an MS-13 member with the gang name “Chele”

Of interest, however, is that the fourth individual was not known to the police or the source of information as an MS-13 member. If, as has been suggested, this source of information was not reliable and had fabricated the information about Abrego Garcia being a member of MS-13, why did he not fabricate information about the 4th individual who, according to the report, was released at the scene.

All of those details come from the Maryland local police who encountered the four men.

Abergo Garcia freely admitted to being a Salvadoran citizen in the United States illegally, and he was turned over to the custody by ICE -- there is an ICE Form I-213 dated March 28, 2019, completed the same evening by two ICE agents. On March 29 he was given a Notice to Appear at a Removal Hearing, and was detained in custody by DHS pending that hearing. The I-213 states it was the Prince Georges County Police Gang Unit who first encountered the four when they were “detained in connection with a murder investigation.” This wasn’t a random police contact – it was the Gang Unit contacting known gang members. It doesn’t say they were suspects in a murder, only that they were detained in connection with an investigation. The I-213 says in multiple locations that Abrego Garcia is an MS-13 member – based on the information given to ICE by the local police Gang Unit dedicated to MS-13.

Abrego Garcia was denied bond after a hearing on April 24, 2019. In the written Memorandum dated May 22, 2019, documenting the denial of the motion, the Immigration Judge stated:

“[T]he determination that the Respondent is a gang member appears to be trustworthy and is supported by other evidence in the record, namely, information contained in the Gang Field Interview Sheet…. [T]he fact that a “past, proven, and reliable source of information” verified [Abrego Garcia’s] gang membership, rank, and gang name is sufficient to support that the Respondent is a gang member….”

The “determination” was made by the Maryland police and adopted by ICE. These are not casual decisions made by the flip of a coin. Accurately identifying gang affiliations is a paramount concern when it comes to arrest/detention/ incarceration. Having members of rival and hostile gangs housed together is an invitation to widespread violence. So accurately determining gang affiliation is the reason why police have gang unit “Intelligence Squads.” To dismiss this determination — as Judge Xinis does in almost comical fashion in her April 6 Opinion for this poor “Maryland Man” — only exposes ignorance as to how and why these determinations are made.

The Board of Immigration Appeals, in a written decision December 19, 2019, adopted and affirmed the Immigration Judge’s decision denying bond to Abrego Garcia on the basis of his status as an MS-13 member.

“[Abrego-Garcia] argues that the Immigration Judge clearly erred in determining that is a verified member of MS-13 because there is no reliable evidence in the record to support such a finding…. We adopt and affirm the Immigration Judge’s danger ruling…. [T]he immigration judge appropriately considered allegations of gang affiliation against the respondent in determining that he has not demonstrated that he is not a danger to property or persons.”

“Gang affiliation” is not a “crime.” So the claim that Abrego Garcia has never been charged with a crime where his gang affiliation was “proven” in court is meaningless. I suspect the Immigration Judge who made the initial FACTUAL FINDING, and the Board of Appeals panel who affirmed that “FACTUAL FINDING” have reviewed far more MS-13 determinations made in this fashion than has Judge Xinis from the district court bench.

Between his arrest and the denial of his bond appeal, Abrego Garcia filed an application for relief from the Order of Removal under three separate provisions of immigration law. First, he asked for asylum, which would have allowed him to lawfully remain in the United States if granted. Second, he asked for protection under the Convention Against Torture (CAT), a U.N. convention that is limited to fear with regard to the government of the country where the alien would otherwise be removed. The Immigration Judge who conducted the hearing denied both his asylum claim and his CAT claim.

But he made a third claim asking for “Withholding of Removal” which prevents deportation back to the alien’s home country if the alien can show a “well-founded fear of persecution” based on religion, ethnicity, etc. One of the classifications recognized in the statute is fear of persecution based on membership in a “particular social group.”

With several months to rehearse the story, Abrego Garcia testified to an almost comical claim that his family’s business – making and selling pupusas from the kitchen of their house (“everyone in town knew to get their pupusa from Pupuseria Cecelia”) – was extorted by a El Salvadoran gang, Barrio 18. The family was given the choice to either pay the extortion on the pupusa sales or the gang would take their son(s) and force them to join the gang. Initially the demand was for Abrego-Garcia’s older brother to join so the family arranged for the older brother to leave for the U.S. Agrego Garcia claimed the family moved from one neighborhood in the capitol San Salvador to another neighborhood 10 minutes away by car. But the gang tracked them down and continued to demand payment or it would force Abrego Garcia — then about 16 — to join. The family moved again, this time 15 minutes farther away by car – but Barrio 18 would just not be denied. They would either have their pupuseria money or Abrego Garcia would join their gang. In response, the family sent him to the U.S. as well.

If you don’t know, pupusas are a stuffed handheld pancake-like street food that are the national dish of El Salvador. Street venders are ubiquitous in Salvadoran towns. The idea that one family’s kitchen would be “the place” to get pupusas is just idiotic beyond belief. It would be like saying “Everyone on Staten Island knew to get their cheesesteak sandwiches at Betty Smith’s house.”

Abrego Garcia told the Immigration Judge in 2019 that he feared being attacked and/or killed by Barrio 18 if he were to be returned to El Salvador – seven years after he left. The judge accepted the story and granted him “Withholding of Removal” – WOR – preventing him from being deported to El Salvador. He could be sent anywhere else, just not back to his home country.

Whether the judge believed the story or not, granting WOR is a backdoor way to get around the one-year limit on applying for asylum – and everyone in the business knows that. That is why ridiculous stories like the one told by Abrego Garcia are invented. Entering an order that a Salvadoran national can’t be sent back to El Salvador creates a significant complication in deporting him at all because a third country needs to agree to take him — a member of MS-13 as determined by the U.S. government.

On the same day he was granted WOR, it appears that he was released from detention. There doesn’t seem to be any document that explains the rationale for releasing Abrego Garcia given that his status as an MS-13 member was used to detain him in the first instance, and that that decision was later affirmed by the Board of Immigration Appeals.

But, informed speculation based on events and the statutes for holding him in custody suggests that a rather simple explanation is likely. Under the statutes governing detention pending deportation, there is a 90 day period within which an alien is to be removed after a final Order of Removal is granted.

Title 8 U.S.C. Sec. 1231(a)(1)(A) states that an alien subject to an Order of Removal shall be removed within 90 days, and shall remain detained during that period.

That period may be extended an additional 90 days if the alien fails to make a “timely application in good faith for travel” or otherwise acts in ways to prevent his removal. He shall remain in custody during that second 90 day period.

There are some provisions in this statute for keeping certain specific classes of individuals in detention until removal is arranged. But, outside those narrow classes the statute provides for release from detention when removal within the statutory period — 6 months total — cannot be accomplished.

When Abrego Garcia was granted WOR to El Salvador, he had been in custody for almost 6 months after his Order of Removal was final. The timing of his release in relationship to that 6 month period, is the best explanation for his release from detention. In Zadvydas v. Davis the Supreme Court held in 2001 that when the date of removal is not “reasonably foreseeable”, continued detention of an alien subject to removal was unconstitutional. So, for Abrego Garcia, indefinite detention while trying to arrange for his removal to a country other than El Salvador, was not an option. After Joe Biden took office, the Biden DOJ had no interest in deporting anyone. That explains why Abrego Garcia was able to “build a life as a Maryland Dad” while being an illegal alien subject to removal for the past 4 years.

There is one more important fact to consider in terms of the WOR with regard to Abrego Garcia, as well as the determination that he is a member of MS-13. In the Complaint filed by his attorneys in the District of Maryland, there is the following allegations in Paragraph 53, at p. 11-12:

The evening after his arrest, [Abrego Garcia’s wife] received a call from Plaintiff Abrego Garcia…. During that conversation, Plaintiff Abrego Garcia informed [his wife] that he was being questioned about gang affiliations. He repeatedly informed his interviewers that he was never a gang member and had no gang affiliations. He was shown several photos where he appeared in public, and asked about other people in those photos, but was unable to provide any information on them, as he did not know them or anything about them.”

So on March 14, 2025, ICE already possessed photographs of him with other individuals in public places and asked him for information about the people he was with while showing him the photographs?

Who thinks those pictures were taken at gatherings of ex-pat Salvadorans to discuss the happenings back in the home country while celebrating their shared cultural heritage?

Most readers here with experience in law enforcement will recognize this as being 100% consistent with innumerable accounts of criminal investigations where law enforcement is trying to gather additional intelligence on individuals of interest. When interviewing a documented MS-13 member who is an illegal alien from El Salvador, who are the subjects most likely to be in the photographs with Abrego Garcia that ICE would in interested in?

Based on experience, what is the most likely response to be given by an MS-13 member when shown photographs of himself with other MS-13 members, and asked for information about the others in the photos — “I don’t know anything about those people”??

Exactly.

The idea that Abrego Garcia’s A-File — all illegal aliens who go through removal have an A-File — only had the 2019 reports as evidence of his MS-13 membership is laughable. The top enforcement priority for ICE staring January 21 was removal of Tren de Aragua and MS-13 members who had come into the country illegally. Every ICE Office would have prioritized their targets based on their own files. They didn’t just pick Abrego Garcia’s name out of a hat. The fact that Prince Georges County has an MS-13 Gang Unit is highly suggestive of the fact that Prince Georges County has an MS-13 gang problem.

Now lets turn to the issue of how to correct the problem of sending Abrego Garcia to the one country on the planet he could not be sent to with the WOR in place.

A different subsection of the same statute cited above — 8 U.S.C. Sec. 1231 — sets for the standard for granting that WOR status that was given to Abrego Garcia. But the process for revisiting a prior granting of WOR status is set forth in the regulations that have been adopted by DOJ for proceedings in Immigration Courts. These are found in Title 8 of the Code of Federal Regulations.

Withholding of Removal is not necessarily a permanent protected status. A change in circumstances in the country for which Withholding was granted is a basis to reopen the matter. If the reasons for fearing retribution if returned to a particular country cease to exist, the WOR for that country can be removed by way of a motion to reopen. As noted above, fear of retribution by the Barrio 18 gang was the reason for withholding removal to El Salvador in 2019. If the Trump Administration establishes that Barrio 18 is no longer the threat it was in 2019 — and it is not — the WOR status could be revoked in a proper hearing conducted for that purpose.

But, more signficantly for Abrego Garcia, the statute granting him WOR has a significant exception that now applies to him. Pursuant to 8 U.S.C. Sec. 1231(b)(3)(B)(iv) — WOR is not available to an illegal alien when:

there are reasonable grounds to believe that the alien is a danger to the security of the United States.

The designation of MS-13 as a “terrorist organization” provides the basis for removing Abrego Garcia’s WOR protection — IF he is an MS-13 member. The standard — established by a statute passed by Congress and signed by a prior President — is “reasonable grounds to believe.” It is not “beyond a reasonable doubt” or “preponderance of the evidence.” It is much closer to what is recognized in other contexts as “probable cause” which also turns on a “reasonableness” standard and not a weighing of evidence.

This is underpinned by a basic judicial principle that is not being given enough consideration by those yammering back and forth over this subject — illegal aliens with no right to remain in the United States are not entitled to the same
”due process” rights as citizens EXCEPT in circumstances where they are charged with a crime and the government is seeking to imprison them as punishment for that crime.

Finally, how would this motion to reopen be made to happen? It is a hearing and it must happen before an Immigration Judge who would make the decision.

But NOTHING I have found leads to the conclusion that the hearing requires Abrego Garcia’s in-person appearance in the United States. Under 18 U.S.C. Sec. 1229a(b)(2), immigration hearings may be conducted via video or teleconference.

One exception requiring consent by the alien to a video or teleconference is when the hearing is for the purpose of considering evidence. But, given the proceedings that have already taken place with Abrego Garcia present in Maryland, both grounds for removing his WOR status can be asserted without his in-person appearance back in the United States.

First, as to his membership in MS-13, regardless of the various legalistic claims that the findings during his two bail hearings are not sufficient, such claims are nonsense because the doctrine of “collateral estoppel” applies. It is a legal doctrine that prevents a party from relitigating an issue that was resolved in a previous lawsuit or administrative proceeding, even if the issue relates to a different claim in the new matter. The requirements are only that the issue was part of the final determination in the earlier proceeding, and the issue was raised and decided with both parties having had a chance to present evidence and argument on the issue.

Whether Abrego Garcia was an MS-13 member was squarely before the Immigration Judge and the Bureau of Immigration Appeals. The government presented the evidence of his affiliation and Abrego Garcia denied being a member and offered evidence to the contrary. The fact that Abrego Garcia had the burden of proof in that setting is irrelevant to the question of whether the matter was squarely before the judge, Abrego Garcia contested the issue, and the issue was decided. The decision does not say he was denied bail because he failed to carry his burden of proof that he was not a danger to the community — it says the evidence of his membership in MS-13 established he was a danger to the community:

After considering the information provided by both parties, the Court concluded that no bond was appropriate in this matter. The Court first reasoned that the Respondent failed to meet his burden of demonstrating that his release from custody would not pose a danger to others, as the evidence shows that he is a verified member of MS-13.”

Since “collateral estoppel” is a legal issue and does not require any new evidentiary determination, a hearing to assert his membership in MS-13 as a basis for removal of his WOR status can be conducted by video/teleconference.

But, even if the application of collateral estoppel is disputed, ICE regulations provide that an Immigration Judge may conduct a hearing by video or teleconference to consider or review “credible fear determinations” without the consent of the alien. 8 C.F.R. Sec. 1003.25(c).

Telephonic or video hearings. An Immigration Judge may conduct hearings through video conference to the same extent as he or she may conduct hearings in person. An Immigration Judge may also conduct a hearing through a telephone conference, but an evidentiary hearing on the merits may only be conducted through a telephone conference with the consent of the alien involved … except that credible fear determinations may be reviewed by the Immigration Judge through a telephone conference without the consent of the alien.

If the changed circumstances in El Salvador with respect to Barrio 18 are such that there is no longer a basis for finding a “credible fear of persecution” at the hands of that gang, that issue can be heard and resolved by an Immigration Judge through a telephone conference without Abrego-Garcia’s consent to proceed in that fashion.

So there is a simple solution to fixing the WOR problem that does not require Abrego Garcia being returned to the United States. These proceedings are through the Immigration Court that is part of the Executive Branch, and over which the Article III district courts have been divested of jurisdiction by the Congress. Judge Xinis has no authority to interfere in this process if DOJ chooses to revisit the WOR benefit in this fashion. Abrego Garcia would have a right to appeal the outcome to the Board of Immigration Appeals and then to the Court of Appeals for the Fourth Circuit. Both could be done on his behalf without his presence in the United States.

The only remaining hurdle is a political one — the Administration seems unwilling to proceed in a manner that could be construed as acknowledging the validity of the Order from Judge Xinis. It seems intent on continuing to contest the legal validity of the order itself, as well as the sufficiency of the the language of the Order following the Supreme Court’s earlier intervention directing her to provide more clear guidance — which she thereafter declined to offer.

I predicted last week when this issue turned volatile that the Administration would fix the error involving Abrego Garcia, but it would not do so in response to a judicial order that it act in any specific manner in correcting the error. This is an Executive error, subject to correction through administrative processes in the Executive branch, and involving a subject matter that is within the exclusive authority of the Executive. It is going to resolve it in that manner without conceding that the Article III district court has any role to play.