A Maryland man with protected legal status was sent to the notorious prison in El Salvador following an “administrative error,” a U.S. Immigration and Customs Enforcement (ICE) official admitted in a sworn declaration on Monday.
Kilmer Armado Abrego-Garcia who has a U.S. citizen wife and 5-year-old child is currently at CECOT, the notorious prison in El Salvador.
The filing is part of a new lawsuit filed by Abrego-Garcia’s attorneys who are requesting that the government of El Salvador return him to the U.S. after being sent there “because of an administrative error.”
In response, the government has acknowledged the error but said in a filing that because Abrego-Garcia is no longer in U.S. custody, the court cannot order him to be returned to the U.S. nor can the court order El Salvador to return him.
According to Abrego-Garcia’s attorneys, in 2019, a confidential informant “had advised that Abrego Garcia was an active member” of the gang MS-13. He later filed an I-589 application for asylum and although Abrego Garcia was found removable, an immigration judge “granted him withholding of removal to El Salvador.”
But earlier this month, Abrego-Garcia was stopped by ICE officers who “informed him that his immigration status had changed.” After being detained over gang affiliations, he was transferred to a detention center in Texas. He was then sent to El Salvador on March 15.
“Abrego-Garcia, a native and citizen of El Salvador, was on the third flight and thus had his removal order to El Salvador executed,” said Robert L. Cerna, acting field office director for ICE in a sworn declaration. “This removal was an error.”
Abrego-Garcia’s attorneys said that he “is not a member of or has no affiliation with Tren de Aragua, MS-13, or any other criminal or street gang” and said that the U.S. government “has never produced an iota of evidence to support this unfounded accusation.”
In response, the government said Abrego Garcia had the opportunity to present evidence to show he was not a part of MS-13. “Abrego Garcia had a full and fair opportunity to litigate the issue,” the government said. “He had the opportunity to give evidence tending to show he was not part of MS-13, which he did not proffer.”
In the filing, Yaakov M. Roth Acting Assistant Attorney General Civil Division for the Department of Justice said the court lacks jurisdiction to review the removal of Abrego Garcia and said that the plaintiffs are seeking his release from Salvadoran custody by “financial pressure and diplomacy.”
Roth also added in the filing that there is no clear showing that “Abrego Garcia himself is likely to be tortured or killed in CECOT.”
“While there may be allegations of abuses in other Salvadoran prisons — very few in relation to the large number of detainees — there is no clear showing that Abrego Garcia himself is likely to be tortured or killed in CECOT,” Roth said. “More fundamentally, this Court should defer to the government’s determination that Abrego Garcia will not likely be tortured or killed in El Salvador.”
In the sworn declaration, Cerna said the removal was “carried out in good faith.”
“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,” Cerna said.
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