Trump Admin. Admits Deportation Error, but Refuses to Correct it

It is somewhat remarkable that I never struggle to find a topic demonstrating a movement by cult leader, convicted felon, and failed President Donald Trump towards autocracy. To the contrary, many days, including today, I have to choose between multiple possible topics. Today I'll follow up on a topic that I've written about a number of times already: the Trump administration's treatment of immigrants. Exactly a week ago I wrote about the denial of due process to those being deported to El Salvador's notorious Terrorism Confinement Center (CECOT), pointing out that, without judicial review, "we are expected to believe that the government is infallible." I further suggested that such an expectation was probably ill-advised. Now, we have a case in which the Trump administration admits to making an error and wrongly deporting an individual to be held in CECOT. Astonishingly, however, the government says that it does not have the ability to return the man and is arguing that courts do not have the authority to order that he be returned.

First reported in "The Atlantic", this story involves a Salvadoran man, Kilmar Abrego García, who fled to the United States in 2011 when he was 16. Abrego García was escaping threats of gang violence in El Salvador. He married a U.S. citizen with whom he has a five-year-old son and has no criminal record. According to "The Atlantic", Abrego García’s problems with immigration began in 2019 when he was detained along with three other men in a Home Depot parking lot. One of the other men told police that Abrego García was a gang member. However, the man had no evidence, and the police didn't believe him. As "The Atlantic" writes, "Police did not identify him as a gang member." Nevertheless, Abrego García was turned over to U.S. Immigration and Customs Enforcement. He went before an immigration judge and received a "withholding of removal," which protects him from deportation.

On March 12, Abrego Garcia had just picked up his son when ICE agents stopped his car and detained him. His family has had no contact with him since then and only learned that he was in CECOT when his wife spotted him in a photograph of detainees being led into the El Salvadoran prison. Abrego Garcia's wife and son have gone to court to try to have him released and returned to the U.S. The government has admitted in court filings that Abrego Garcia was wrongly deported. In the government's response to Abrego Garcia's family's lawsuit, it says, "On March 15, although ICE was aware of his protection from removal to El Salvador, Abrego Garcia was removed to El Salvador because of an administrative error." This is exactly the sort of error that a week ago I warned that "infallible" government employees are capable of making. But, astonishingly, the government has no plans to return Abrego Garcia and is arguing that the Court has no authority to make it do so.

The first argument being made by the Trump administration is that the Court lacks jurisdiction because Abrego Garcia is not in U.S. custody. Second, the officials argue that there is no certainty that financial or diplomatic pressure on the government of El Salvador would be successful in winning Abrego Garcia's freedom. In addition, the Trump administration is continuing to argue that Abrego Garcia is a gang member and, therefore, a danger to the community. This despite Abrego Garcia's unblemished record while living in the U.S. and that a judge was sufficiently skeptical of such allegations that he issued a "withholding of removal." Basically, the government agrees that Abrego Garcia was removed in error, claims that it has no ability to have him returned, and that since he is a gang member he belongs in the prison anyway. All of this while still not accusing him of a crime.

As stated earlier, the government's contention that Abrego Garcia is a gang member is tenuous. It is based entirely on the testimony of one individual who was unable to provide evidence to support his claim and who was not believed by the police. The government does not contend that Abrego Garcia has committed a single crime beyond traffic violations. Finally, back in 2019, an immigration judge was persuaded that Abrego Garcia faced significant threats in El Salvador and would not pose a threat in the U.S. and, therefore, issued a "withholding of removal" which led to his release. Abrego Garcia has led an exemplary life since then. Under pressure from Trump to step up deportations, ICE is probably going through old lists and searching for anyone on whom they can get their hands. Abrego Garcia, living a normal, peaceful life, was probably an easy target.

The government's refusal to return Abrego Garcia is extremely disturbing. The government is likely correct that because it no longer has custody of Abrego Garcia, a habeas petition is of no use. More troubling is the government's suggestion that it can't bring about his return. The Trump administration, which is reportedly paying $6 million per year to El Salvador in exchange for housing the prisoners, suggests that it has no ability to have Abrego Garcia released. This is hardly believable, but if true, makes Trump appear extremely weak.

Imagine a hypothetical situation in which a U.S. citizen has fallen afoul of the Trump administration. He is then grabbed off the street by masked individuals and whisked off to a detention center where he is accused of being a foreign gang member. The detainee can protest that he is a U.S. citizen and not a member of a gang until he turns hoarse, but there is no judicial review. Within hours, the person is on a plane to CECOT where, upon arrival, the U.S. government washes its hands of him. He is out of U.S. jurisdiction and beyond the authority of U.S. judges. Even if lawyers for the individual demonstrate in court that he is a U.S. citizen and not a gang member, government lawyers will argue that the U.S. government has no means of influencing El Salvador and can do nothing about the "mistake." This scenario may seem far-fetched, but short of the individual being a U.S. citizen, it is exactly what is happening now. How big of a step is it to erase that distinction? As I have repeatedly written, authoritarians start at the margin. They target the unpopular. In this case, objecting to the government's actions results in your being labeled as a defender of violent gangs. But once the methods are normalized, there may be no end to how they are used. Trump has already suggested that those protesting at Tesla dealerships be sent to El Salvador's prison. How long before this "joke" turns into reality?

Update: Today Vice President J. D. Vance, who we have to remember was chosen solely on merit and who is a Yale-educated lawyer, commented on this case. He said that according to court documents, Abrego Garcia was convicted of being a MS-13 gang member. While that accusation was made before an immigration judge (not a criminal court), there was no conviction. I am fairly certain that even a DEI vice president would know the difference between an accusation and a conviction. But, yet, here we are.

Update 2: One more thought about this. Trump has carried on ad nauseam about accountability, criticizing former President Joe Biden for not firing officials who made mistakes and so on. Here is a case in which someone within the government made an error, even by the government's own admission. So, who should we expect to see fired? If nobody is fired, does that mean that Trump doesn't really consider this to have been an error on that he doesn't really care about accountability? Trick question. The answer is that both options are true.