#53 - On Kilmar Armando Abrego Garcia and the Importance of Due Process

I have gone to church almost every Sunday for the last three and a half decades. I’m not a theologian, nor an ethicist, nor a philosopher, maybe even of the armchair variety, but I spend a fair amount of time thinking about the right thing to do and how to do it. At the individual level, what constitutes good behavior often isn’t all that complicated. Difficult, yes—sometimes incredibly so—but usually not a complete mystery.

But everything gets a good deal harder to figure out when it comes to running the government. You’re constantly put in situations where there is no perfect solution—where there is nothing you can do that won’t, in the near or long term, lead to unwanted outcomes for real people—for people whom, if you could, you would shield from such harms. We have tricks to avoid really confronting this—ways to otherize the people we know we’re hurting, ways to make them okay to hurt when others aren’t. These principles might be intelligible, reasonable, logical, maybe even obvious, but they don’t change the underlying reality: that the government holds extraordinary, virtually unlimited power, and that, even unintentionally, it can and often does hurt people, both those whom we’d argue deserve it and those who don’t.

That power demands outside constraint and internal restraint. It demands predictable, thoughtful application and, ideally, a swift and thorough remedy when used in error. This is basically a Spiderman redux: “With great power comes great responsibility.” The federal government of the United States is, bar none, the single most powerful organization on the face of the earth; ergo, even if it’s a bit much to ask it to also be the single most responsible organization on the face of the earth, it’s not unreasonable to ask for a pretty serious effort.

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By now, it seems like virtually everyone knows that Kilmar Armando Abrego Garcia, a Salvadoran national, was renditioned to El Salvador’s CECOT (Centro de Confinamiento del Terrorismo) on accident.

Stephen Miller, President Trump’s homeland security advisor and a longtime immigration restrictionist who, barring a surprising change, stands only a moderately better chance of expanding Trump’s appeal beyond a subset of his base than I, a 5’9”, 35-year-old man who did not play high school basketball, do of becoming a multi-time NBA All-Star, claimed on Fox News that Abrego Garcia “was not mistakenly sent to El Salvador. This was the right person sent to the right place.” Miller blamed Erez Reuveni, a Justice Department lawyer fired over the weekend, for seeding the idea that the rendition was an error: “A D.O.J. lawyer who has since been relieved of duty, a saboteur, a Democrat, put into a filing, incorrectly, that this was a mistaken removal.”

Whatever his reasons might have been, Miller was giving the truth a good stretch. Robert Cerna, acting Field Office Director of Enforcement and Removal Operations for Immigration and Customs Enforcement (ICE), submitted a sworn declaration in federal court that Abrego Garcia’s “removal was an error.” He acknowledged that Abrego Garcia was protected by an immigration judge’s “withholding of removal” order which “prohibited his removal to El Salvador[,]” that “ICE was aware of [the] grant of withholding of removal at the time [of] Abrego Garcia’s removal from the United States,” and that “[t]hrough administrative error, Abrego Garcia was removed from the United States to El Salvador.”

And if that’s where the story stopped—with Abrego Garcia, a husband to a U.S. citizen, father to a special needs child and stepfather to two more, and sheet metal worker and first-year apprentice of the International Association of Sheet Metal, Air, Rail, and Transportation Workers, yeeted to a foreign gulag in the one country to which the Department of Justice, through an immigration judge, has said he can’t be deported—every bit of the outrage would make complete sense. The administration’s assertions that Abrego Garcia is now out of its control, and that to “facilitate” his return, as the Supreme Court has unanimously ordered, only means providing a plane if El Salvador’s President Nayib Bukele wants, of his own free will and accord, to send him back (he doesn’t), would beggar disbelief even more than they already do.

Sure, the administration would defend itself, and sure, its most committed supporters would point to Abrego Garcia having spent most of his time in the United States with no legal status whatsoever, or the executive branch’s apparently unlimited authority in foreign affairs, but, even if you ignore the immigration court’s order, and even if you take a broad view of executive power, confinement in a notorious prison is an absurdly disproportionate punishment for simply crossing the border and moving to Maryland.

But, of course, that isn’t the full story. The final sentence of Cerna’s declaration reads: “This was an oversight, and the removal was carried out in good faith based on the existence of a final order of removal and Abrego Garcia’s purported membership in MS-13.”

Let’s set aside for today the clear and obvious moral questions inherent in shipping someone to a particularly brutal prison, where inmates are stashed 100 to a cell with a single toilet between them, when criminality is merely “purported,” not proven. It isn’t just Abrego Garcia who has been sent to CECOT without ever having been convicted of a crime—a New York Times report on the 238 Venezuelans shipped away without a hearing under the Alien Enemies Act found a number of vicious, hardened criminals and a number of other now-inmates whose only proven (or even alleged) crime beyond entering the country illegally seems to have been Having Tattoos While Venezuelan.

Returning to Abrego Garcia, if you take the position most favorable to the administration, this really is, to crib from Attorney General Pam Bondi, much ado about “an extra step in paperwork.” Abrego Garcia was protected from removal solely to El Salvador by 8 U.S.C. § 1231(b)(3), which provides that “the Attorney General may not remove an alien to a country if the Attorney General decides that the alien’s life or freedom would be threatened in that country because of the alien’s race, religion, nationality, membership in a particular social group, or political opinion.”

Again, he was protected from deportation to El Salvador alone—at any point since he received “withholding of removal” status, he could have been deported to a third country that agreed to accept him. Failing that, however, the government could have asked to re-open his immigration case and have his status changed. As noted in the Fourth Circuit order issued yesterday, the relevant federal regulation (8 C.F.R. § 208.24(f)) only requires that the government prove “by a preponderance of evidence” that an alien is no longer entitled to a withholding of removal. That means the government must only prove it is more likely than not—as in, there is more than a 50% chance—that withholding of removal is no longer justified.

Abrego Garcia’s status was based on threats from the 18th Street Gang, or Barrio 18, to him in connection with his family’s pupusa business. Bukele’s national security crackdown, which began in March 2022, nearly three years after Abrego Garcia was released from ICE custody, has decimated the gang—his security forces have jailed over 10,000 alleged Barrio 18 members, and many others have gone into hiding or fled the country. Given the weakening of Barrio 18, it’s certainly possible, perhaps even probable, that the government would be able to make a compelling argument that Abrego Garcia’s protection should be removed, which would allow his deportation to El Salvador.

To the best of my understanding, the government does not need to address whether Abrego Garcia is or was a member of MS-13 to satisfy the demands of due process prior to deporting him to El Salvador generally. And maybe if the administration had simply put him on a flight to San Salvador with a ham sandwich and $20, no one would know his name. But that’s not what happened—they chucked him into the open mouth of a crocodile, not the perhaps-unwelcome-but-likely-familiar pool of his native country.

This is where it truly gets a bit circular. Bukele is something of an autocrat; he does not give a proverbial rat’s hindparts about due process when it comes to possible terrorists (for what it’s worth, both his and our government officially view MS-13 as a terrorist organization). His approach is completely contrary to our traditions here, but it didn’t come out of nowhere. El Salvador has historically had a profoundly serious gang problem. With the caveat that the statistics may not be perfect, the homicide rate in 2015 stood at 103 people per 100,000 inhabitants, the highest in the world. Like, on earth. It had dropped all the way to 36 per 100,000 by the time Bukele took office in 2019 (he had previously served as the tough on crime mayor of San Salvador, so perhaps he had something to do with the initial decrease), and now stands at 1.9 per 100,000, lower than the American number of 7.5%.

The decrease has not come without real, severe costs—Bukele’s security forces have indefinitely detained 85,000 people since the state of exception was enacted in March 2022. However, what bargain would you make to feel safe? I’m not an expert on the reliability of Salvadoran opinion polling, but Bukele’s approval rating is over 90% and has been for a good while.

In other words, if the United States brings Abrego Garcia back, reopens his immigration case, succeeds in having his withholding of removal status changed, and deports him to El Salvador, Bukele seems more than likely to arrest him immediately and send him right back where he is currently. Would that merit some special consideration in his status change hearing here? Maybe, but the statute provides for protection if an alien’s “life or freedom would be threatened in that country because of the alien’s race, religion, nationality, membership in a particular social group, or political opinion.” Granting Abrego Garcia protection on account of potential membership in MS-13, a “particular social group” which is in actuality an international criminal syndicate and which the government has declared a terrorist organization, would be interesting.

And, for what it’s worth, ICE believes, not entirely without reason, that Abrego Garcia is in fact a member of MS-13. Has he ever been charged with a crime, let alone a gang-related one? No, not in his native El Salvador and not in the United States. However, not having been charged with a crime is not the same thing as not having committed a crime, and there is a non-zero possibility that the courts—including a unanimous Supreme Court—Democrats, and various skeptics of the administration are making a real stand on behalf of a man whom a majority of Americans would ultimately prefer to end up in El Salvador, not Maryland.

In other words, there’s a genuine argument for the Republican perspective—there was a mistake, yes, but one made in good faith and one which may very well not have changed where this all would end up anyway. We can argue about whether we should be sending anyone to CECOT, but, perhaps especially with Abrego Garcia, that’s a separate question. The administration will provide a plane to facilitate Abrego Garcia’s return if it must, but doesn’t want him back and will make every effort to deport him swiftly if returned.

But, as reasonable as that might sound from a certain perspective, I think it’s wrong.

Arguments against Abrego Garcia focus on the ends; the best arguments for him, however limited they might be, focus on the means. There’s a reason you so often hear lawyers and politicians harp on questions of process and rules, and raise the specter of the slippery slope: the government is dangerous. Republicans, especially those who have decried the “weaponization” of the government under Democratic administrations, know this. Rigid observation of protective rules makes it less so, as does the ability to contest its actions in the federal courts. Nothing about this is new—the Constitution, which enables the federal government, took effect in 1789; the Bill of Rights, which constrains the federal government in various ways people at every point of the political spectrum remain absolutely stoked about, was approved by Congress mere months later, and took effect in 1791.

Perhaps none of the Bill of Rights’ ten amendments are more important than the Fifth, which provides, in relevant part, “No person shall…be deprived of life, liberty, or property, without due process of law[.]” Everything else rests on that—a prohibition on restricting your speech or your exercise of religion, or on taking your guns, really doesn’t do that much if the government can just do what it wants and say, “sorry, too late”—if it doesn’t need to seek permission or forgiveness.

In other words, as silly as it might seem to fly Abrego Garcia back to the United States—realistically, encouraging Bukele to put him on a plane is not going to be that hard—it’s important that the Trump administration does so. The dots on the i’s and the crosses on the t’s really, really matter.

From the Fourth Circuit’s order, written by Judge J. Harvie Wilkinson, a Reagan appointee, oft-mentioned potential candidate for—and longtime funnel of clerks to—the Supreme Court, and former boss to a very good friend (he historically hires as clerks the top graduate or two in each class at the University of Virginia, one of whom from the class of 2016 happened to be my roommate),

“It is difficult in some cases to get to the very heart of the matter. But in this case, it is not hard at all. 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. Further, it claims in essence that because it has rid itself of custody that there is nothing that can be done.

This should be shocking not only to judges, but to the intuitive sense of liberty that Americans far removed from courthouses still hold dear.

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. See 8 C.F.R. § 208.24(f) (requiring that the government prove ‘by a preponderance of evidence’ that the alien is no longer entitled to a withholding of removal). Moreover, the government has conceded that Abrego Garcia was wrongly or ‘mistakenly’ deported. Why then should it not make what was wrong, right?

…The Supreme Court’s decision…requires the government ‘to “facilitate” Abrego Garcia’s release from custody in El Salvador and to ensure that his case is handled as it would have been had he not been improperly sent to El Salvador.’

…‘Facilitation’ does not permit the admittedly erroneous deportation of an individual to the one country’s prisons that the withholding order forbids and, further, to do so in disregard of a court order that the government not so subtly spurns. ‘Facilitation’ does not sanction the abrogation of habeas corpus through the transfer of custody to foreign detention centers in the manner attempted here. Allowing all this would ‘facilitate’ foreign detention more than it would domestic return. It would reduce the rule of law to lawlessness and tarnish the very values for which Americans of diverse views and persuasions have always stood…

…The Executive is inherently focused upon ends; the Judiciary much more so upon means. Ends are bestowed on the Executive by electoral outcomes. Means are entrusted to all of government, but most especially to the Judiciary by the Constitution itself.

The Executive possesses enormous powers to prosecute and to deport, but with powers come restraints. If today the Executive claims the right to deport 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? [here Judge Wilkinson drops a footnote to an ABC article quoting Trump considering sending “homegrown” criminals to El Salvador and a Fox News article to the same effect] And what assurance shall there be that the Executive will not train its broad discretionary powers upon its political enemies? The threat, even if not the actuality, would always be present, and the Executive’s obligation to ‘take Care that the Laws be faithfully executed’ would lose its meaning. U.S. CONST. art. II, § 3; see also id. art. II, § 1, cl. 8.

Today, both the United States and the El Salvadoran governments disclaim any authority and/or responsibility to return Abrego Garcia. See President Trump Participates in a Bilateral Meeting with the President of El Salvador, WHITE HOUSE (Apr. 14, 2025). We are told that neither government has the power to act. The result will be to leave matters generally and Abrego Garcia specifically in an interminable limbo without recourse to law of any sort.

The basic differences between the branches mandate a serious effort at mutual respect. The respect that courts must accord the Executive must be reciprocated by the Executive’s respect for the courts. Too often today this has not been the case, as calls for impeachment of judges for decisions the Executive disfavors and exhortations to disregard court orders sadly illustrate…

…Now the branches come too close to grinding irrevocably against one another in a conflict that promises to diminish both. This is a losing proposition all around. The Judiciary will lose much from the constant intimations of its illegitimacy, to which by dent [sic] of custom and detachment we can only sparingly reply. The Executive will lose much from a public perception of its lawlessness and all of its attendant contagions. The Executive may succeed for a time in weakening the courts, but over time history will script the tragic gap between what was and all that might have been, and law in time will sign its epitaph.

It is, as we have noted, 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 our good brethren in the Executive Branch perceive the rule of law as vital to the American ethos. This case presents their unique chance to vindicate that value and to summon the best that is within us while there is still time.”

Process—even if it’s a dumb process, even if it seems like overkilled overkill for an unworthy beneficiary, even if this is all about a difference in the means when it might very well not change the ends—matters. Respect for the judiciary matters. That doesn’t mean not fighting it out, or not appealing, but it does mean that, ultimately, if the Supreme Court says you need to do something, you should do it, and in good faith.

Maryland Senator Chris Van Hollen meets with Abrego Garcia on Thursday.

After the presidential election, I spoke to a conservative friend about Trump’s plans on illegal immigration. It seemed likely, I said, that he would crack down on enforcement generally, which seemed popular; that attempted border crossings would drop significantly in response to his rhetoric, which also seemed popular; and that, in its anti-immigration zeal, the administration would overreach—that we’d see Immigration and Customs Enforcement scooping up crying grandmothers, separating parents from children, and, most importantly, making mistakes. But it’s not just about whether you make mistakes—it’s about why you make them, how serious they are, and what you do in response.

The administration is making mistakes; it will continue to do so. In my view, it would maximize its political appeal and minimize its liabilities if it took them seriously.

There remains much more to be said on immigration, tariffs, DOGE, and a thousand additional subjects. Many articles to come!

Random Recommendation and Fact

Watch this shot from Rory McIlroy. Maybe watch every shot, actually. I don’t think I’ve ever been happier to see a golfer win a tournament. What an incredible up and down, back and forth round of golf.