President Donald Trump says he could bring back Kilmar Abrego Garcia, an immigrant his administration wrongly deported to the infamous CECOT prison in El Salvador. But he won’t, despite the Supreme Court’s order to “facilitate” the return of Abrego Garcia, who was deported unlawfully in the first place.
“If he were the gentleman that you say he is, I would do that,” Trump told ABC News’s Terry Moran last month. Trump then insisted that Abrego Garcia had MS-13 tattooed on his knuckles. When Moran pointed out that the photo in question had clearly been doctored to add those characters, Trump responded, “Why don’t you just say, ‘Yes, he does,’ and, you know, go on to something else?”
The remainder of the evidence that the administration has put forth to support its claims that, as Trump put it, Abrego Garcia is “a member of the violent, killer gang MS-13” has been similarly flimsy, if incessantly repeated. Abrego Garcia came to the U.S. illegally as a teenager in 2011 from El Salvador, and has since married a U.S. citizen, with whom he has an American child. A judge issued what’s known as a “withholding of removal” order in 2019 that prevented Abrego Garcia from being deported to El Salvador, finding that he had reason to fear he would be persecuted there by a gang that had been harassing his family. When the Trump administration sent him to CECOT, an ICE official acknowledged having done so because of an “administrative error,” given that a judge’s order that he not be deported was in force.
Even so, White House Press Secretary Karoline Leavitt has called Abrego Garcia a “foreign terrorist” and a “gang member” who was “engaged in human trafficking.” Trump’s border czar, Tom Homan, called Abrego Garcia a “public safety threat” and “terrorist.”
These are very serious allegations. If Trump officials were confident in their veracity, then recognizing Abrego Garcia’s due-process rights would be no obstacle to his conviction or removal; it would be unnecessary to send Abrego Garcia to a foreign prison, or to continue to maroon him there. The government could charge him with crimes and, presumably, see him convicted. The administration could try to withdraw his protected status on the basis that he committed crimes that would make him eligible for deportation, or that he committed fraud in his application, or that he is no longer threatened by circumstances in El Salvador, and it could do so based on a preponderance of the evidence, a lower standard of proof than that required for criminal conviction. The government could also remove Abrego Garcia to a third country as long as he would not be subject to torture. Abrego Garcia could challenge that removal based on the possibility of his being persecuted, but there’s no explicit bar to the government sending him someplace else.
Trumpist rhetoric aside, everyone in America has due-process rights, because the Constitution was written to prevent the arbitrary exercise of power by the state. Because deportation is a civil process, the undocumented have fewer rights than in a criminal trial—but that’s not the same as having none. That means there is a legal process to go through, and when it comes to immigration law, that process is very deferential to the federal government.
“Withholding of removal is not a status that keeps him safely in the U.S. in perpetuity,” Amanda Frost, an immigration expert at the University of Virginia School of Law, told me. “So I think the government’s threat to remove him is actually quite realistic; his future in the United States is uncertain because of how precarious the standard is. But that doesn’t mean they can remove him without due process.”
Still, Frost said, if Abrego Garcia doesn’t have a right to remain in the United States, the Trump administration could “bring him back and determine that through the processes provided by law.” Homeland Security Secretary Kristi Noem told Maryland Senator Chris Van Hollen, a Democrat, during a hearing last week that there was “no scenario” in which Abrego Garcia would return, more evidence of the Trump administration’s apparent decision to ignore the Supreme Court.
But the administration’s refusal to bring him back for trial or legal removal raises the question, at the very least, of whether it has evidence for its allegations against Abrego Garcia that would hold up in court. “If the government is confident of its position,” the Republican-appointed federal judge J. Harvie Wilkinson III wrote in an April 17 opinion, “it should be assured that position will prevail in proceedings to terminate the withholding of removal order.”
We might then infer that the government is not “confident in its position.” The Trump administration has directed allegations of terrorism and gang activity at a father of three who is married to an American citizen and has lived in the U.S., but offered remarkably little evidence to establish these claims.
In her April 6 ruling, Maryland District Court Judge Paula Xinis noted that the federal government had abandoned the position that Abrego Garcia was a “danger to community” during a hearing before the court, and that it had “offered no evidence linking Abrego Garcia to MS-13 or to any terrorist activity.” There are things that you can bloviate about on Fox News that are harder to get away with in court.
Let’s start with the gang allegation. In 2019, Abrego Garcia was arrested along with three other men while looking for construction work in the parking lot of a Home Depot in Prince George’s County, Maryland. A police detective alleged that he was “an active member of MS-13 with the Westerns clique,” based on the word of an anonymous informant and the fact that Abrego Garcia was wearing a Chicago Bulls cap, which was “indicative of the Hispanic gang culture.” According to the NBA, the Chicago Bulls sell more merchandise than all but four other teams; the team’s website sells 117 different types of team cap. Logic dictates that not every cap-wearing Bulls fan is a Hispanic gang member.
Nevertheless, an immigration judge found that there was sufficient evidence to have Abrego Garcia deported after his 2019 arrest, before another judge issued the withholding-of-removal order. That is less a commentary on the strength of the evidence against Abrego Garcia than on how little work the government has to do to deport someone who is undocumented.
“The thing to understand is that the federal rules of evidence do not apply in immigration court,” Heidi Altman of the National Immigration Law Center told me. “As long as the immigration judge considers the evidence to be probative or relevant, it can be admitted, and that is often taken to the extreme. So hearsay, for example, is fully admissible in immigration court.” Altman noted that “police reports, which are seen as extremely suspect in, for example, a criminal court or a federal court, are almost seen as fact in immigration-court proceedings.”
This lower standard of evidence and deference to law enforcement can lead to perverse outcomes. The detective who identified Abrego Garcia as a gang member, as The New Republic’s Greg Sargent reported, was later suspended for disclosing information about a police investigation to a sex worker he was patronizing. As The Washington Post reported, the Prince George’s County police were also sued over the gang unit’s practices. The unit was accused of racially profiling Black and Hispanic residents because it had been encouraged to add to a federal gang database that was later decommissioned, the Post reported, “as its credibility came into question.”
“The gang unit was incentivized to fill the database,” the Post reported, “because intelligence gathering was a core function of the grant funding.” In other words, officers in the unit were rewarded for producing numbers even if the information they were providing was false or unreliable. For fans of The Wire, cops in the gang unit were under pressure to “juke the stats.” As a result, the information they provided may not have been reliable.
So the basis of the “gang member” and “terrorist” allegations is double hearsay from a disgraced detective who was feeding information to a decommissioned gang database that police felt compelled to juice because, in the words of one former unit member who spoke to the Post, “if you’re not submitting names, then your career, your time in that unit, is very limited.”
That’s not a credible basis for determining that someone is in a gang. And even if he were in a gang, he would still be entitled to due process. After all, that’s how you assess whether such allegations are true. Or at least, that’s how you do it if you care about whether the people you’re targeting are culpable. Due process is a constitutional right and a limitation on the power of the government, not a privilege you get for being good.
Abrego Garcia has also been accused of being a “human trafficker.” Again, the administration could seek cancellation of his withholding-of-removal order or prosecute him. The basis for this charge is that Abrego Garcia was pulled over in Tennessee in 2022 while driving a car with eight other people in it. Federal investigators are reportedly looking into the incident, and if it turns out to be true that Abrego Garcia was involved in something unlawful, the proper thing to do is charge or remove him the legal way. “I’m not vouching for the man, I’m vouching for his due process,” Van Hollen told Noem when she insisted he was supporting a “known terrorist.”
The more substantiated allegation is that Abrego Garcia’s wife, Jennifer Vasquez Sura, sought multiple orders of protection against him for physical abuse. There is evidence for other domestic abuse in contemporaneous court documents. Nevertheless,Vasquez Sura has been trying to get her husband back, and has had to move to a safe house because the Department of Homeland Security posted her private information publicly, and because of allegations the Trump administration has made in the media but cannot prove in court.
Perhaps the administration has more evidence than it has publicly divulged, but its mad scramble to assemble a dossier on Abrego Garcia following his deportation only underscores its failure to abide by due process before it shipped him to El Salvador.
If Abrego Garcia is a terrorist, then charge him. If he is a gang member, then charge him. If he is a human trafficker, then charge him. If he is a domestic abuser, then charge him. But the entire point of due process is that individuals are supposed to be innocent until being proved guilty, not sent to a foreign Gulag and condemned by rumors and innuendo after the fact. There is nothing here that would justify the Trump administration disregarding the Constitution and ignoring the law.
“We can have perfect due process in every single court in the United States, and we should all still be yelling and screaming that our government can never render people to torture,” Altman told me.
What the Trump administration’s allegations against Abrego Garcia reveal is that it is not really interested in the guilt or innocence of the men it is condemning to a Gulag in El Salvador. Rather, men like Abrego Garcia are seen by the administration as part of a class of people whose collective guilt as a population renders them subject to any abuse imaginable. Instead of establishing his guilt before deporting him, the government chose to deport him and then try to establish his guilt in the court of public opinion. But that’s not how due process works. The sentence comes after the establishment of guilt or culpability, not before.
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