The Case For Not Correcting The "Mistake" Of Deporting An El Salvadoran To El Salvador

This is a battle between Article II and Article III authorities, but the better case rests with the President's view of foreign policy needs.

Let me start with some undisputed facts.

First, Kilmar Abrego Garcia was an illegal alien found by the Immigration Courts to be subject to removal from the United States. He has no right to return to or remain in the United States.

Second, all during the removal proceedings Abrego Garcia was detained. The initial detention was based upon a finding — supported by the evidence presented — that he was a member of MS-13. That finding was later upheld by the Bureau of Immigration Appeals. Much ink has been spilled in the past 10 days suggesting this finding was not supported by meaningful evidence. But it doesn’t work that way — he had a hearing, evidence was submitted, the determination was made, and it was upheld on appeal. And, as noted below, there is more evidence than the public has been led to believe.

Third, after being detained pending removal, Abrego Garcia sought three forms of relief in connection with the Order of Removal — he sought asylum, he sought protection under the Convention Against Torture, and he sought Withholding of Removal. This document is the 14 page ruling by the Immigration Judge on those claims, and provide much more detail than is generally being bounced around on social media.

His asylum claim was rejected because it was filed more than one year after he entered the US — he was in the U.S. for seven years, from 2012 to 2019, before he applied. His claim under the Convention Against Torture was denied because he could not make a factual basis in 2019 that he had a fear of torture by the Salvadoran government, and that is the harm to be avoided under the CAT.

Finally, he was granted “Withholding of Removal” — WOR. Much like asylum claims, WOR is based on a fear of persecution if returned to one’s home country. But while asylum grants the right to remain in the U.S., the relief under WOR is to not be returned to your own country — you still get deported. His fear of being sent back to El Salvador was due to a threat of physical harm from a criminal gang that dominated the neighborhood where his family lived. Barrio 18 was a rival Salvadoran street gang to MS-13. The Order never says Abrego-Garcia was a member of MS-13 while in El Salvador, it only says that he fled El Salvador because Barrio 18 was threatening his family if they did not either 1) pay a “tax” on the money made by his mother selling pupusas out of their home, or 2) have Abrego Garcia join the gang. These claims were based on Abrego Garcia’s own testimony and “affidavits” submitted by family members back in El Salvador.

He was his mother’s son and the gang threatened him with death in 2012 to “get at the mother and her earnings from the pupusa business.”

Yeah — it is just as believable as it sounds.