The Latest in the Case of the Salvadora Removed Due to ‘Error’

A high-profile immigration case involving the removal to El Salvador of an alien in what the government terms “administrative error” has gotten under the skin of a district court judge, even as it draws in the president of El Salvador, the mother of a daughter slain by an illegal migrant, and at least one U.S. senator, and even while facts about the alien’s criminal past start trickling out. The case is Abrego Garcia v. Noem, before Judge Paula Xinis of the U.S. District Court for the District of Maryland (DMD). As the weather heats up, so does the rhetoric, but what if that removal had more to do with El Salvador’s fight against MS-13 than it did with President Trump’s criminal alien removal promises?

The Immigration Court Bond and Merits Cases. Abrego Garcia v. Noem is currently before Judge Paula Xinis of the U.S. District Court for the District of Maryland, on remand from the Supreme Court. The lead plaintiff, Kilmar Abrego Garcia, is a Salvadoran national. Here’s a brief recap of his immigration and legal history.

Abrego Garcia entered illegally around 2011. He was first arrested by ICE and placed in removal proceedings in March 2019.

He requested release on bond, which was denied by the first immigration judge (IJ) to handle the matter. That IJ concluded Abrego Garcia had failed to show that he was not a danger to the community, given ICE evidence showing that he was “a verified member of MS-13”, a street gang with operations in both the United States and El Salvador.

The case was then handed over to a second IJ, who heard Abrego Garcia’s applications for asylum, withholding of removal under section 241(b)(3) of the Immigration and Nationality Act (INA) — also known as “statutory withholding”, and protection under the Convention Against Torture (CAT).

Those applications were premised on Abrego Garcia’s claim that he faced persecution and torture if returned at the hands of a different gang, Barrio 18, due to his status as member of a particular social group, “immediate family members of the Abrego family” — popular pupusa peddlers in two San Salvador neighborhoods, serially.

On April 4, I examined both those claims and the second IJ’s decision granting Abrego Garcia statutory withholding and denying his applications for asylum and CAT. The IJ only briefly referenced allegations Abrego Garcia was an MS-13 member, and only because Abrego Garcia himself raised it.

To put it charitably, the second IJ’s decision was convoluted, confusing, and (most importantly) vague, but in any event, Abrego Garcia was released from ICE custody under a final order of removal valid for his deportation to any country except for one, either El Salvador or Guatemala.

By the way, after Abrego Garcia was released from custody, the Board of Immigration Appeals (BIA) adopted and affirmed the first IJ’s “danger ruling”. Justice moves slowly, and the BIA has a lot of cases.

MS-13 Is Designated as a “Foreign Terrorist Organization”. On February 20, the State Department designated MS-13 as a foreign terrorist organization (FTO). As the department explained in announcing that designation, the group:

actively recruits, organizes, and spreads violence in several countries, primarily in Central America and North America, including El Salvador, Honduras, Guatemala, Mexico, and the United States. MS-13 has conducted numerous violent attacks, including assassination and the use of IEDs and drones, against El Salvador government officials and facilities. Additionally, MS-13 uses public displays of violence to intimidate civilian populations to obtain and control territory and manipulate the electoral process in El Salvador. [Emphasis added.]

Abrego Garcia v. Noem. I’ll explain below why I highlighted those excerpts, but in the interim, I’ll simply note this DOS terrorist designation may have had something to do with ICE’s rearrest of Abrego Garcia on March 12, 2025, and his transfer to a detention facility in Texas.

He was removed to El Salvador sometime around March 16, and immediately detained in the Terrorism Confinement Center (CECOT) by the Salvadoran government.

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 the U.S. district court in Maryland, where it was assigned to Judge Xinis.

That complaint asked the court to direct the government to “immediately halt all payments to the Government of El Salvador to hold individuals in CECOT, and an order that [the government] immediately request that the Government of El Salvador release … Abrego Garcia from CECOT and deliver him to the U.S. Embassy in El Salvador”, as well as all other “steps reasonably available to” the U.S. government.

That wasn’t exactly the relief Judge Xinis deemed appropriate, however. Instead, on April 4, the court demanded that the U.S. government “facilitate and effectuate the return of … Kilmar Armando Abrego Garcia to the United States by no later than 11:59 PM on Monday, April 7, 2025”.

In other words, she required the Trump administration to successfully engage in diplomacy with a sovereign government (El Salvador) to hand over one of its citizens whom it had placed into a high-security prison in sufficient time to have Abrego Garcia back on U.S. soil before midnight on April 8.

The government quickly asked the U.S. Court of Appeals for the Fourth Circuit to stay Judge Xinis’s order, noting in it is Emergency Motion: “The United States does not have control over Abrego Garcia. Or the sovereign nation of El Salvador.”

Those fairly obvious and straightforward points didn’t sway the three-judge circuit panel that heard the government’s motion, as it denied the government’s request. To be fair, however, one of those judge’s did try to “soften” Judge Xinis’s commands.

The government then turned to the Supreme Court. Chief Justice Roberts stayed the order hours before it would have required Abrego Garcia’s successful return, with all nine justices weighing in on April 10.

A majority of the Court held Judge Xinis’s order “properly 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”.

Back to Judge Xinis. The Supreme Court remanded the case to Judge Xinis, however, to “clarify” her directive demanding the government “effectuate” the alien’s return, “with due regard for the deference owed to the Executive Branch in the conduct of foreign affairs”.

On April 15, she granted the plaintiffs’ request for “’expedited discovery of the Government’s actions (or failure to act) to facilitate” Abrego Garcia’s “return to the United States”.

In that order, she also contends — the justices’ admonitions notwithstanding — that her earlier injunction directing Abrego Garcia’s return “remains active and enforceable”.

Notably, she complained in that order that the government appears “to have done nothing to aid in Abrego Garcia’s release from custody and return to the United States to ‘ensure that his case is handled as it would have been but for’ the government’s “wrongful expulsion of him”.

To that end, she demanded the government provide:

evidence concerning: (1) the current physical location and custodial status of Abrego Garcia; (2) what steps, if any, [the U.S. government has] taken to facilitate Abrego Garcia’s immediate return to the United States; and (3) what additional steps [the government] will take, and when, to facilitate his return.

The Salvadoran President’s White House Visit. Interestingly, Salvadoran President Nayib Bukele visited President Trump at the White House the day before Judge Xinis issued that order. During a press conference with the two leaders in the Oval Office, a reporter asked Bukele whether he planned to return Abrego Garcia. Here was his response:

Well, I guess you’re supposed to have suggested that I smuggle terrorists into the United States, right? How can I smuggle him? How can I return him to The United States? If I could, would I smuggle him to the United States or would I do the course? I’m not going to do it. It’s like, the question is preposterous. How can I smuggle a terrorist into the United States? I don’t have the power to return him to the United States.

The reporter then asked Bukele whether he could instead release Abrego Garcia in El Salvador, and the Salvadoran president responded:

Yes, but I’m not releasing him. I mean, we’re not very fond of releasing terrorists into our country. We just turned the murder capital of the world into the safest country in the Western Hemisphere, and you want us to go back into releasing criminals so we can go back to being the murder capital of the world. And that’s not going to happen.

In her April 15 order, Judge Xinis never alludes to, let alone references, President Bukele’s blanket refusal to return Abrego Garcia or to release him in El Salvador — fairly salient points in light of her demand that the U.S. government facilitate and effectuate the alien’s return to this country.

DOJ’s “Emergency Motion for Stay Pending Appeal and Petition for Writ of Mandamus”. On April 16, DOJ notified Judge Xinis that it planned to appeal her April 15 discovery order, followed directly by its filing of an Emergency Motion for Stay Pending Appeal and Petition for Writ of Mandamus (emergency motion) with the Fourth Circuit.

In that emergency motion, DOJ explained that the U.S. government “is in the process of removing domestic impediments to any return on the part of Abrego Garcia”, meaning if he shows up here, they’ll take him in.

The department complains, however, that Judge Xinis has improperly “inserted” herself “into the foreign policy of the United States and has tried to dictate it from the bench”.

As the Legal Information Institute explains, a writ of mandamus is “an order from a court to an inferior government official ordering the government official to properly fulfill their official duties or correct an abuse of discretion”.

Here, DOJ wants the appellate court to direct Judge Xinis to vacate her “capacious discovery order” of April 15, and to stay her amended injunction directing the government to “facilitate and effectuate” Abrego Garcia’s return.

Sen. Van Hollen (D-Md.) Goes to El Salvador. Abrego Garcia was living in Maryland when he was arrested by ICE on both occasions, and many press outlets have described him as a “Maryland man”.

Seemingly taking that as a cue, the state’s senior senator, Chris Van Hollen (D) issued a press release on April 15 announcing that he’d be traveling to El Salvador the next day, “to visit Kilmar and check on his wellbeing and to hold constructive conversations with government officials around his release”.

While there, Van Hollen was apparently unable to meet with Bukele, instead having to parley with the country’s vice president, Félix Ulloa. Ulloa reportedly told the senator El Salvador couldn’t return Abrego Garcia and also that Van Hollen couldn’t visit him in CECOT, either.

Van Hollen complained afterwards that: “We have an unjust situation here … the Trump administration is lying about Abrego Garcia. The American courts have looked at the facts.”

At this point, no less that six “American courts” have looked at the facts in Abrego Garcia’s case by my count (two IJs, the BIA, Judge Xinis, the Fourth Circuit, and the Supreme Court), two of which have made findings connecting him to MS-13, so Van Hollen could have clarified that point better. Of course, if Judge Xinis had the facts, she wouldn’t be demanding them now.

Rachel Morin’s Mom and Additional Facts. If the Trump administration were setting a trap for the senator, it likely couldn’t have done a better job.

That’s because while Van Hollen was in El Salvador, Patty Morin — mother of Rachel Morin, a Maryland mother of five “who was raped and murdered” in 2023 while she was out jogging by Victor Martinez-Hernandez, an illegal alien from El Salvador — was at the White House meeting with President Trump and appearing at a press briefing with Trump’s press secretary, Karoline Leavitt.

Morin was at the White House on Wednesday because on Monday, a Maryland jury found Martinez-Hernandez guilty of first degree murder, first degree rape, third degree sexual offense, and kidnapping in her daughter’s case.

Leavitt began that briefing by linking Martinez-Hernandez to Abrego Garcia: “There is no Maryland father. … Kilmar Abrego Garcia is an illegal alien, MS-13 gang member, and foreign terrorist who was deported back to his home country.”

For its part, the New York Times complained that “the invitation of Ms. Morin seemed a somewhat transparent effort to suspend the arguments about whether the administration could lawfully send migrants to El Salvador with no due process”.

Vasquez’s Domestic Violence Allegations. Drop down eight paragraphs, however, and you’ll see that Leavitt also — in the Times’ words — “waved a court filing, one that sought an order of protection against” Abrego Garcia.

Fox News obtained that document, which contains allegations filed with a state court in Prince George’s County, Md., in 2021 against Abrego Garcia by his wife, Jennifer Vasquez, also a plaintiff in the case before Judge Xinis.

According to the outlet:

In the filing, written in Vasquez’s own handwriting, she alleges Abrego Garcia repeatedly beat her, writing: “At this point, I am afraid to be close to him. I have multiple photos/videos of how violent he can be and all the bruises he [has] left me.”

Vasquez alleged that Abrego Garcia punched and scratched her on her eye, leaving her bleeding. He also allegedly threw her laptop on the floor.

She wrote that on another day, Abrego Garcia got angry again, started yelling, and ripped her shirt and shorts off before grabbing her arm and leaving marks.

Vasquez recalled two times in 2020 that Abrego Garcia hit her.

“In November 2020, he hit me with his work boot,” she wrote. “In August 2020, he hit me in the eye leaving a purple eye.”

In paragraphs nine and 10, the Times noted that Vasquez admitted having filed the papers, quoting her as explaining, “Things did not escalate, and I decided not to follow through with the civil court process. … We were able to work through this situation privately as a family.”

DOJ Releases Documents Related to Abrego Garcia’s MS-13 Involvement. And, around the same time Sen. Van Hollen was talking to the press in El Salvador about Abrego Garcia, DOJ on April 16 quietly released four documents linking the Salvadoran national to MS-13.

Two of those documents, the first IJ’s bond decision and the BIA’s order affirming that IJ’s “danger ruling” are already in the court records in Abrego Garcia.

Two haven’t been previously released, however: a “Prince George’s County [Md.] Police Department Gang Field Interview Sheet” (gang sheet), and a “Record of Deportable/lnadmissible Alien” (Form I-213) prepared by ICE after it first arrested Abrego Garcia in March 2019.

Both bear evidence stamps from the first IJ, indicating they were among the documents she relied upon in finding that Abrego Garcia “is a verified member of MS-13”.

The gang sheet describes how Hyattsville (Md.) police officers approached “four individuals loitering in the parking lot of the Home Depot” in that town, two of whom “reached into their waistbands and discarded several unknown items” later determined to contain marijuana “under a parked vehicle”.

One of the officers immediately recognized one of the quartet as an “active M -13 gang member with the Sailor’s Clique with the rank of ‘Observacion’ and moniker of ‘Bimbo’”.

Bimbo was described as having an “extensive criminal history” for such offenses as “assault, concealing dangerous weapon, [and] burglary”, as well as a 2018 conviction for “gang participation”.

Abrego Garcia was also with the group and was interviewed. I’ll skip the part about how he was wearing “clothing … indicative of the Hispanic gang culture” and get to the officers’ narrative about their later contact with “a past proven and reliable source of information”.

That “confidential source” advised that Abrego Garcia “is an active member of MS-13 with the Westerns clique”, holding the rank of “Chequeo” and the nickname “Chele”.

The I-213 was prepared by an ICE officer who spoke with a Prince George’s County Task Force detective. That detective stated that Abrego Garcia and another alien arrested at the time were “detained in connection to a murder investigation”.

Under the heading “Gang Validation” in the I-213, the ICE officer wrote that according to the Prince George’s County Police Gang Unit, Abrego Garcia “was validated as a member of the [MS-13] Gang. … identified as a member of the … MS-13, 11 Chequeo from the Western Clique.”

Finally, the I-213 indicates that at the time he was arrested, Abrego Garcia was carrying $1,178, a lot of cash for a guy self-identified as a “laborer”.

“Biden’s FBI Ordered TN Highway Patrol to Release ‘Maryland Man’ … Deported to El Salvador”. As if this case doesn’t have enough wrinkles, the Tennessee Star added even more on April 16 when it ran an article headlined “Biden’s FBI Ordered TN Highway Patrol to Release ‘Maryland Man’ Recently Deported to El Salvador”.

It claims that Abrego Garcia was arrested in December 2022 by a Tennessee Highway Patrol (THP) officer who suspected him of engaging in human trafficking.

According to The Star, Abrego Garcia was pulled over for unknown reasons, and the responding officer discovered that he was driving without a valid license and transporting seven passengers.

THP reportedly contacted the FBI, and the agency told “THP officers at the scene to capture photographs of all eight people in the vehicle [,] document its contents”, and then release Abrego Garcia and the seven others, which THP did.

That article raises as many questions as it attempts to answer, because according to the paper:

One source told The Star that THP ultimately discovered Abrego Garcia was on a terrorist watch list, but could not locate Abrego Garcia on a deportation list. Another source told The Star that THP did not discover Abrego Garcia on a terrorist watch list but that another one of the seven passengers in the vehicle may have been on a terrorist watch list.

…

Information about this incident, including the identity of the THP officer, the officer’s badge number, and the Computerized Dispatch Report code assigned to the incident, are all known to The Star, which is currently withholding this information.

Sources familiar with the Computerized Dispatch Report of the incident told The Star that the officer who filed the report confirmed that the seven individuals in the van were being transported from Texas to Maryland by Garcia.

What Nobody’s Asking. The story of Kilmar Abrego Garcia has been subject to significant scrutiny, as the foregoing reveals, not only in the courts but in the press, as well.

Up to this point, the commonly accepted narrative has been that President Trump wants to rid American streets of gang members and is using quick removal to El Salvador and detention to CECOT to do so. That may be all there is to it.

But go back to that February State Department designation of MS-13 as an FTO. It discusses, very briefly and somewhat elliptically, the gang’s criminal activities in the United States.

More importantly, though, it highlights MS-13’s political activities in El Salvador: The gang has engaged in “numerous violent attacks, including assassination … against El Salvador government officials and facilities”; and “public displays of violence … to obtain and control territory and manipulate the electoral process in El Salvador”.

Normally, when DHS deports an alien — in error and not — it puts the alien on a commercial or charter airplane back home, sometimes under guard, and sometimes not. The alien lands, clears the port, and resumes his or her life back home.

Here, the Salvadoran government was waiting for the plane that carried Abrego Garcia and other suspected MS-13 members to arrive and immediately took those passengers into custody and transported them to CECOT.

And here, the Trump administration isn’t letting anything slip about the flights, the transfer, and even where Abrego Garcia is being detained.

This is pure speculation, but what if the Salvadoran government wanted this alien and others back as part of its efforts to end MS-13 in El Salvador, and the U.S. government is simply assisting that effort?

InSight Crime described MS-13’s vertical structure in January 2022. At the bottom are “paros”, “local residents, often minors, who are not formally part of the gang but carry out favors for fully-fledged members”.

Next are “postes”, “teenagers seeking to prove their worth and join the gang” by serving as watchmen for hours on end.

Then, there are “Chequeos”, the rank the confidential informant referenced in the gang sheet claimed Abrego Garcia held.

Chequeos are described as “youngsters between 15 and 20 years old, who started off as paros and spent several years as postes”. They “can be relied on to handle more important tasks”, and as one gang expert told Insight Crime, chequeos are “important, someone who is listened to. They have shown they can be trusted, and that they can kill. They are ready for action and to start earning for the gang.”

Abrego Garcia was 23 when the gang sheet was prepared, and he admitted to the second IJ that he left El Salvador because he had trouble with Barrio 18, a rival gang to MS-13.

Maybe that part was true, but that Barrio 18’s interest in the alien wasn’t as innocent as he claimed; the actual claim — based on a low-level pupusa business — doesn’t actually make such sense to me, and I have heard a lot of Salvadoran gang cases.

If he had trouble with Barrio 18, all he had to do was move to MS-13’s then-ample turf.

According to InSight Crime, “It takes around six years of experience for a chequeo to become a homeboy. Those who make it have already proven they can live off the gang’s businesses and extortions. They have killed at least three people and demonstrated their commitment to the MS13.”

Few make it — less than 10 percent of MS-13 members are homeboys. But if Abrego Garcia made it that far, it would explain why he was, as The Star alleges, arrested by THP for transporting aliens from Texas to Maryland in 2022, and if the FBI was keeping an eye on him to track the gang, it would also explain why the agency told the FBI to let him go.

Nothing explains why DHS took Abrego Garcia into custody more than five years after he was granted statutory withholding and sent him to a country at war with MS-13, where he was immediately imprisoned. Maybe Abrego Garcia’s removal and detention in CECOT has more to do with Nayib Bukele’s desire to dismantle MS-13 than it does with Donald Trump’s efforts to remove criminal aliens.