Judge Orders Return of Alien Removed to El Salvador in ‘Administrative Error’

On April 1, the New York Times reported: “A Maryland man who was in the United States legally was deported to El Salvador and imprisoned there because of an ‘administrative error.’” The “Maryland man” in question is Kilmar Armando Abrego Garcia, and those facts — and that he is a native and citizen of El Salvador — are largely undisputed.

A federal judge has just ordered him returned to the United States, but despite that order and the days of national attention this case has garnered, there are blank spots that need to be filled in, largely thanks to the immigration judge’s confusing decision granting Abrego Garcia status here — which relied on future harm Abrego Garcia would face not in El Salvador, but in Guatemala.

Maybe that confusion is how the government’s administrative error occurred. I’m certainly confused, despite the fact that, as a former immigration judge myself, I have a lot of experience in cases like this.

“Statutory Withholding of Removal” vs. “Asylum”

Even the most casual observer of our immigration system has at least a passing familiarity with “asylum”, a form of humanitarian protection provided for in section 208 of the Immigration and Nationality Act (INA) that can be granted to certain aliens present in the United States regardless of their immigration status.

Less well-known is a separate humanitarian protection, set forth in section 241(b)(3) of the INA and technically titled “Restriction on removal to a country where alien’s life or freedom would be threatened”, but more commonly known as “statutory withholding of removal”.

There are a lot of similarities between the two forms of protection, most notably that each is available to an alien who can show either past harm and or future harm inflicted on account of one or more of five “protected grounds”: race, religion, nationality, membership in a particular social group, or political opinion.

An alien can obtain asylum simply by showing a “well-founded fear” of future persecution, a somewhat vague standard, but one that can usually be satisfied with proof that there is some reasonable likelihood the applicant will be harmed based on one of those protected grounds in the future.

The standard of proof for future harm for statutory withholding is higher: that it’s more likely than not that the applicant will be harmed on one of those grounds in the future.

Regardless of whether the applicant is seeking asylum or statutory withholding, however, proof that the alien has been harmed on one of those grounds in the past generally gives rise to a finding of future harm, absent changed circumstances back home.

That said, and again regardless of the form of protection sought, applicants must also show that they cannot “reasonably relocate” to avoid the persecution that they claim.

An asylum grant places an alien on track to apply for a green card, and ultimately to apply for U.S. citizenship.

Statutory withholding is very different, however, and the distinction is crucial in this case.

An alien can only be granted statutory withholding after an immigration judge has ordered the alien removed, and the statutory withholding grant only bars the alien’s removal to a specific country or countries. If a different country will take an alien who was granted statutory withholding, DHS can send the alien there.

The last key distinction between these two forms of protection has to do with discretion. Even if an adjudicator (immigration judge or USCIS asylum officer) determines an alien has satisfied all of the statutory requirements for asylum, the adjudicator can still deny the application in the exercise of discretion because of some other facts in the case.

Statutory withholding, on the other hand, is a mandatory form of protection. An immigration judge can find that a statutory withholding applicant is a wildly dangerous individual, for example, but provided the applicant has satisfied the statutory factors set forth in section 241(b)(3) of the INA, and is not otherwise barred thereunder, the judge must grant statutory withholding.

Bars to Humanitarian Protection

As the Department of Justice has explained: “In general [aliens] seek Withholding of Removal when they are ineligible for Asylum because of one or more Asylum bars.”

The “one-year bar” in section 208(a)(2)(B) of the INA is the most common. It prevents adjudicators from granting asylum to applicants who fail to prove, “by clear and convincing evidence”, that they filed their asylum applications within one year of their arrival in this country.

Other bars preclude grants of both asylum and statutory withholding to aliens who are persecutors, those who “having been convicted by a final judgment of a particularly serious crime” are “a danger to the community of the United States”, those found to have committed a “serious nonpolitical crime outside the United States”, and those who are a danger to the national security.

Asylum but not statutory withholding is barred for any alien “firmly resettled” abroad, though firm resettlement can weigh into DHS’s decision to remove an alien granted statutory withholding to a third country, other than the one from which removal has been withheld.

Abrego Garcia v. Noem

According to the Times, Abrego Garcia was granted “withholding of removal” in October 2019, but was stopped on March 12 “by immigration agents who told him inaccurately that his status had changed” and removed to El Salvador three days later.

For reasons that aren’t clear, however, neither Abrego Garcia nor his family attempted to seek his release following his arrest by those “immigration agents”, and in fact his wife only apparently realized he’d been sent to El Salvador after she identified him “in a photo of detainees entering intake at CECOT, the country’s notorious mega prison”.

On March 24 — nine days after he arrived in El Salvador — Abrego Garcia, his wife, and minor child, through counsel, filed a “Complaint for Injunctive Relief and Declaratory Judgment” (complaint) in federal district court in Maryland, in a case titled Abrego Garcia v. Noem.

Attached to that complaint is an October 10, 2019, decision and order issued by an immigration judge in Baltimore, Md., denying Abrego Garcia’s application for asylum under the one-year bar and denying his application for protection under the Convention Against Torture, but granting his application for statutory withholding.

It identifies him as a native and citizen of El Salvador, and states that he was born in San Salvador in 1995 and that he entered the United States in 2012 without being admitted or paroled, that is, illegally. The problem with respect to his asylum application is that he did not seek that protection “until after he was detained in August 2019”, “seven years after his entry into the U.S.”

The Statutory Withholding Claim and the Immigration Judge’s Decision

After denying Abrego Garcia (a “respondent” in those removal proceedings) asylum due to the one-year bar, the immigration judge granted him statutory withholding based on his claim that he’d be harmed due to his status as member of a particular social group, “immediate family members of the Abrego family”. Let me explain.

Respondent lived with his mother, Cecilia, who — with the assistance of his father and three siblings — ran a pupusa business out of her home popularly known as “Pupuseria Cecilia”.

At some point, a gang called “Barrio 18” took notice of the business’s success and “began extorting the Respondent’s mother” for regular payments they deemed “rent”. The immigration judge explained:

The gang threatened to harm the Respondent, his older brother Cesar, and the family in general if their demands were not met. Alternatively, they told Cecilia that if she could not pay the extortion money, she could turn Cesar over to them to become part of their gang.

The family paid when they could, “and hid Cesar from the gang”, ultimately sending him to the United States. After Cesar’s departure, Barrio 18 started trying to recruit Abrego Garcia, and “told Cecilia that she would not have to pay any more rent if she let him join the gang”.

The immigration judge continued:

The gang then threatened to kill Respondent. When the Respondent was around 12-years old, the gang came to the home again, telling Cecilia they would take him because she wasn’t paying money from the family’s pupusa business. The Respondent’s father prevented the gang from taking the Respondent that day by paying the gang off the money they wanted.

Eventually, the family moved to another neighborhood, “10 minutes away, by car”, but Barrio 18 allegedly went there, as well, “twice threatening to rape and kill the Respondent’s two sisters and threatening the Respondent”.

None of those threats were apparently acted on, but Abrego Garcia’s parents nonetheless “kept him inside as much as possible”.

At some point, the family closed the pupusa business and moved away to a different place that was a 15-minute drive away, but they continued to keep Abrego Garcia “indoors most of the time because of threats to his life”, before sending him to the United States four months later.

The Bond Hearing

On March 31, DOJ responded to an emergency motion for temporary restraining order that had been filed by the plaintiffs in this case, and attached to their response a bond memorandum issued by a different immigration judge in the Baltimore Immigration Court.

That bond memo shows that Abrego Garcia requested a $5,000 bond during an April 2019 hearing, which the immigration judge denied. In her memo denying bond, she explained:

The DHS asserted that the Respondent is a verified gang member. The Respondent was arrested in the company of other ranking gang members and was confirmed to be a ranking member of the MS-13 gang by a proven and reliable source.

She continued:

After considering the information provided by both parties, the Court concluded that no bond was appropriate in this matter. The Court first reasoned that the Respondent failed to meet his burden of demonstrating that his release from custody would not pose a danger to others, as the evidence shows that he is a verified member of MS-13. … [T]he determination that the Respondent is a gang member appears to be trustworthy and is supported by other evidence in the record, namely, information in the Gang Field Interview Sheet. … [T]he Respondent has failed to present evidence to rebut that assertion.

Abrego Garcia appealed that decision, but the Board of Immigration Appeals (BIA) dismissed that appeal in December 2019, “adopt[ing] and affirm[ing] the Immigration Judge’s danger ruling”.

Back to the Statutory Withholding Decision

Abrego Garcia’s purported membership in MS-13 came up only tangentially during the hearing on his application for statutory withholding, and only because he claimed a fear of harm based on membership in a separate “particular social group”, i.e., “Salvadoran male deportees labeled as MS-13 gang members by U.S. law enforcement” — a claim the judge did not consider.

Even if the immigration judge who granted Abrego Garcia statutory withholding had concluded that he was an MS-13 member — as the second immigration judge did during the bond determination — it would not have been a basis for denying the application. Abrego Garcia apparently had no disqualifying convictions, and as noted above, statutory withholding is not discretionary; grants are mandatory.

As an aside, I would not have granted this protection application, for various reasons.

The first is credibility. The evidence showed that Abrego Garcia’s father was a former police officer, and yet despite all of the threats of extortion, forced recruitment, and rape they received from Barrio 18, the family never went to the authorities because the gang threatened to kill them all if they did.

“The family believed them because they were well aware of the rampant corruption of the police in El Salvador and they believed that if they reported it to the police, the police would do nothing.”

The only way that statement is credible is if: (1) the father was himself corrupt when he was a cop; (2) the father didn’t respond to death threats from gang members when he was a cop; or (3) he was the only clean and diligent cop in the whole country.

More significant, however, is the fact that the claim doesn’t — in my mind — come even close to being sufficient. The only reason Abrego Garcia or anyone else in his family was threatened was because the gang wanted resources — “rent” payments from Cecilia if they could get them or service to the gang from Cesar and then Abrego Garcia if they could not.

In his decision, the first immigration judge cited the Fourth Circuit’s opinion in Oliva v. Lynch for the proposition: “Extortion may constitute persecution, even if physical harm will be inflicted only upon failure to pay”.

The panel in Oliva did make that finding, but more crucial to this case is the following determination by the circuit court there: “Recognizing that extortion can be a form of persecution, the appropriate inquiry is thus whether the extortion occurred on account of protected grounds” (emphasis added).

Nothing in the immigration judge’s decision suggests that Barrio 18 had any interest in “the immediate family members of the Abrego family” aside from their interest in obtaining resources from the Pupuseria Cecilia and the family itself.

Remember — as the immigration judge himself found — when the gang members came looking for money that the mother refused to give them and then threatened to take Abrego Garcia instead, they left Abrego Garcia alone after the father gave them the money.

All of this is simple extortion and the opposite of what the circuit court held to be sufficient in Oliva. It’s not clear whether ICE appealed this decision, but if I were the trial attorney, I would have.

Guatemala?

The immigration judge’s merits decision, however, raises other issues that are much more pertinent to the government’s removal of Abrego Garcia.

While the judge’s memorandum of decision and order is enlightening, it conveys no legal authority in and of itself. At the time he issued it, the immigration judge should also have issued a separate preprinted form referred to as a “minute order”, which does have legal authority.

On that form, the immigration judge would have checked boxes showing he denied asylum and CAT, but granted statutory withholding, which Abrego Garcia would have needed to present to prove that he had lawful status in the United States.

That minute order, however, would also have shown that Abrego Garcia was ordered removed and listed the country to which removal was ordered but withheld. As I explained above, statutory withholding is country specific, but no minute order appears in the record in his federal court case.

Logically, the country of removal would have been El Salvador — Abrego Garcia’s country of nationality. The only problem is that the immigration judge’s merits decision granting statutory withholding itself calls that fact into question, at three significant points.

On p. 4, he states: “At present, even though the family has shut down the pupusa business, Barrio 18 continues to harass and threaten the Respondent’s two sisters and parents in Guatemala” (emphasis added).

Thereafter, on p. 8, he writes: “DHS has failed to carry their burden to show that there are changed circumstances in Guatemala that would result in the Respondent’s life not being threatened or that internal relocation is possible and reasonable” (emphasis added).

Finally, the court concludes (at p. 13):

DHS has not shown that there are changed circumstances in Guatemala that would result in the Respondent’s life not being threatened, or that internal relocation is possible and reasonable under the circumstances. Therefore, the Respondent’s application for withholding under the Act is granted. [Emphasis added.]

Each of those excerpts is crucial to the immigration judge’s ultimate decision granting Abrego Garcia statutory withholding. In fact, they are the most important sections of that decision, because they show the threat the applicant claimed was ongoing, and that he could not relocate internally to avoid it.

If there is no minute order, then this decision is the order of the court and Abrego Garcia’s removal to El Salvador is wholly in accordance with the court’s decision.

If there is a minute order, it may well show that the immigration judge withheld removal to Guatemala, but even if it doesn’t, DHS could be forgiven, after reading the immigration judge’s merits decision granting statutory withholding, for concluding the immigration judge withheld removal only to Guatemala, not to any other country.

The government has been castigated for admitting it removed Abrego Garcia due to “administrative error”, but it certainly wasn’t the only error that occurred during the tortuous history of this case. After looking at the immigration judge’s confusing decision, I can understand why the government believed it was appropriate to send Abrego Garcia to El Salvador.