Why Doesn’t DHS Reopen and Terminate Kilmar Abrego Garcia’s Withholding Order?

Judge Paula Xinis of the U.S. District Court for the District of Maryland (D. Md.) issued an order this week (1) barring DHS from detaining Kilmar Abrego Garcia if and when he is released from criminal custody in Tennessee, and (2) requiring the department to give him a 72-hour heads-up if it plans to send him to a third-country. Given “changed country conditions” in El Salvador — the country from which Abrego and countless others have been granted protection based upon their fear of gang threats — why doesn’t DHS simply reopen his immigration case and terminate his protection grant, and countless others, too?

The Abrego Case, in Brief

Abrego entered illegally in March 2012, and was taken into ICE custody in March 2019, based both on his illegal status and purported evidence linking him to MS-13, a violent criminal organization with its roots in Los Angeles and a significant presence in El Salvador and elsewhere.

In April 2019, an immigration judge (IJ) in Baltimore, Md., denied Abrego’s request for bond, finding that evidence in the case “shows that he is a verified member of MS-13”. He appealed that bond denial, but the Board of Immigration Appeals (BIA) adopted and affirmed the IJ’s “danger ruling” eight months later.

While in detained removal proceedings, Abrego filed an application for asylum, “statutory” withholding of removal under section 241(b)(3) of the Immigration and Nationality Act (INA), and withholding of removal under the Convention Against Torture (CAT).

The matter at some point was assigned to a second IJ, who issued an order in October 2019 denying Abrego’s asylum and CAT applications but granting his application for statutory withholding.

In April, I analyzed that decision, and noted various problems with it — not least of which was that the second IJ failed to clearly state what country he was withholding Abrego’s removal from. Regardless, ICE did not appeal that order to the BIA (though I would have) and it became final.

ICE released Abrego following that grant, but rearrested him on March 12, 2025, after which he was transferred to a detention facility in Texas.

Sometime around March 16, ICE removed Abrego to El Salvador, where the government immediately placed him in its Terrorism Confinement Center (CECOT).

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” in federal district court in Maryland, where it was assigned to Judge Xinis.

On April 4, she issued an order directing the government to “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”.

By ordering the government to “effectuate” Abrego’s return, the judge in essence demanded that the administration engage in expedited diplomatic negotiations with El Salvador while mandating that the result of those negotiations be the return of Abrego — a Salvadoran citizen — to the United States before April 8.

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

A three-judge panel of the Fourth Circuit denied that motion in an order issued on April 7, prompting DOJ to file an application to vacate Judge Xinis’s order with Chief Justice John Roberts, the circuit justice for the Fourth Circuit.

The chief justice issued an administrative stay of the district court order before the deadline to give the full Court the chance to consider the government’s application, and on April 10, all nine justices issued an opinion weighing in on the case.

The majority 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”.

The justices, however, remanded the case to Judge Xinis to “clarify” her demand that 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 May 21, while Abrego was still in Salvadoran custody, a grand jury in the Middle District of Tennessee (M.D. Tenn.) handed down an indictment in U.S. v. Abrego Garcia, charging him with conspiracy to transport aliens under section 274(a)(1)(A)(v)(I) of the INA and “unlawful transportation of illegal aliens” under section 274(a)(1)(A)(ii) of the INA.

The district court in the M.D. Tenn. unsealed that indictment on June 6, the same day El Salvador released Abrego and DHS flew him back to the United States.

Abrego has been in federal criminal custody in the M.D. Tenn. ever since, even though on June 22, a federal magistrate judge in the M.D. Tenn. denied a government motion to keep him detained.

That’s because on June 27, Abrego (through counsel) asked the magistrate to delay the issuance of a release order in his case until a July 16 hearing on the government’s motion for revocation of that release order.

Abrego asked for that delay because the U.S. government had indicated that it intends to take him into immigration custody if he is released from criminal detention and remove him to a third country.

In roughly simultaneous orders issued on July 23, Judge Waverly Crenshaw of the M.D. Tenn. denied the government’s revocation order (which Abrego asked the court to stay for 30 days) and Judge Xinis of the D. Md. directed DHS not to take immediate custody of Abrego if he is released from criminal detention.

Statutory Withholding

The government has admitted that El Salvador was the one country it couldn’t remove Abrego to, due to the statutory withholding grant he received from the second IJ in October 2019.

As I have explained many times in the past, statutory withholding under section 241(b)(3) of the INA is akin to asylum, the differences being the burden required to show eligibility for the former protection is higher (“more likely than not” an applicant will be persecuted compared to the “well-founded fear of persecution” standard for asylum), and the benefits of statutory withholding are fewer.

Asylees are placed on a path to citizenship, but while aliens granted statutory withholding receive work authorization, the only other benefit of statutory withholding is they won’t be removed to a designated country or countries — not that they can’t be removed elsewhere.

In fact, the last subsection in the statutory withholding regulation, 8 C.F.R. § 208.16(f), states: “Nothing in this section … shall prevent [ICE] from removing an alien to a third country other than the country to which removal has been withheld.”

Both asylum and statutory withholding require an applicant to prove some likelihood of persecution if returned because of the alien’s “race, religion, nationality, membership in a particular social group, or political opinion”.

The second IJ granted Abrego statutory withholding because he found Abrego would be persecuted if returned because of his membership in a particular social group, in this case the “immediate family members of the Abrego family”, not by the government, but of a different gang, Barrio 18.

Abrego claimed his mother ran a successful pupusa business in El Salvador, and his family was subject to extortion threats by Barrio 18 related to the profits of that business.

But as I explained in April, extortion per se (which the second IJ’s order indicated was the case here) is different from “persecution” under section 241(b)(3) of the INA — which is why I would have appealed that order if I were ICE.

Changed Country Conditions

The regulations governing statutory withholding specifically allow ICE to seek reopening of an asylum or statutory withholding grant.

Specifically, 8 C.F.R. § 208.24(f) states, in pertinent part:

An immigration judge or the Board of Immigration Appeals may reopen a case … for the purpose of terminating a grant of asylum, or a withholding of deportation or removal. In such a reopened proceeding, must establish, by a preponderance of evidence, one or more of the grounds set forth in paragraphs (a) or (b) of this section.

Among the “grounds set forth” for reopening in 8 C.F.R. § 208.24(b)(1) is the following:

The alien is no longer entitled to withholding of deportation or removal because, owing to a fundamental change in circumstances relating to the original claim, the alien’s life or freedom no longer would be threatened on account of race, religion, nationality, membership in a particular social group, or political opinion in the country from which deportation or removal was withheld.

The second IJ didn’t put much weight on the fact that the pupusa business that attracted Barrio 18’s attention was by then defunct (Abrego claimed that his family continued to receive threats), but more saliently Barrio 18 itself is not the threat today it was in 2019.

President Bukele’s Gang “Crackdown”

As noted, El Salvador placed Abrego into CECOT upon his initial return. Latin American outlet Connectas describes that prison as “the symbol of the ‘crackdown’ on gangs by the President of El Salvador, Nayib Bukele”.

That description continues:

Members of the Mara Salvatrucha and Barrio 18, who used to be rivals unto death, are mixed in the 32 cells in the tour’s block, where they coexist peacefully and without harming each other. The lights are on 24 hours a day to control inmates’ movements.

Bukele launched that “crackdown” in March 2022, and according to InSight Crime, the president’s efforts have resulted in the jailing of more than 10,000 Barrio 18 members, “decimat[ing] Barrio 18’s rank-and-file, sending thousands fleeing or into exile. For the first time in decades, the gang has lost control of key territories and criminal economies in areas it once ruled with an iron fist.”

That outlet concludes:

The Barrio 18 is a shadow of its former self in El Salvador, with more than half of its members jailed during the 2022-2023 crackdown, according to police estimates. With its ranks depleted, the gang has surrendered strategic territories and can no longer operate criminal economies pivotal to its economic survival. A swift comeback seems a remote possibility in El Salvador.

Given these reports, a motion to reopen and terminate Abrego’s statutory withholding claim is a virtual lay-up. Except …

Other Protection Grounds

Now that Abrego was returned to El Salvador and was jailed there, he’s likely to amend his 2019 statutory withholding application if his case were reopened to assert that the Salvadoran government would persecute or torture him because it “erroneously” believes that he is an MS-13 member.

He made a similar claim in his original statutory withholding application, which the second IJ in a footnote opted “not [to] address” at the time. That claim plainly has more saliency now.

State Department country conditions evidence reveals that there have been human rights issues connected to the Bukele crackdown, including “arbitrary arrest”, “mass pretrial hearings”, and “lengthy pretrial detention”.

That said, DOS’s “El Salvador 2023 Human Rights Report” begins:

Under the [country’s] state of exception, reports of gang violence decreased significantly, allowing citizens to exercise their right to life, liberty, and security of person, and to engage in daily activities and commerce without the constant threat of violence and extortion.

Moreover, the State Department explains, “The government took credible steps to identify and punish officials who may have committed human rights abuses”, and given how solicitous President Bukele has been to his U.S. counterpart in the Abrego case, DOS is likely to obtain assurances from San Salvador that Abrego won’t be persecuted or tortured if returned.

The Question No One Has Asked

A reopened removal hearing to reexamine Abrego’s statutory withholding grant given changed country conditions would also give the government the opportunity to present evidence linking him to MS-13, assuming it has such evidence.

Which brings me to the question no one — no reporter, no judge — has asked in this heavily covered case: Why the Salvadoran government put Abrego in prison after he was returned to El Salvador.

In his complaint, he contended his detention was part of a deal between Trump and Bukele to detain suspected Salvadoran gang members removed from the United States in El Salvador.

That may be true, but even if it is, it doesn’t make any sense.

Under the INA, absent an extradition order, the U.S. government doesn’t care whether deported aliens are subsequently detained or not. The sole purpose of deportation is to get those aliens out of the United States, nothing more. Usually, what happens thereafter is none of our concern.

Which perhaps suggests Abrego’s abrupt removal from this country resulted not from any Trump policy but rather occurred at El Salvador’s request. I’m not casting any aspersions, but the only way the facts in this case — the quick removal, the detention in CECOT — make any sense is if San Salvador had reason to believe he had criminal ties that impacted security in El Salvador.

If that’s correct, ICE could also offer such evidence at a reopened removal hearing — provided the Salvadoran government were willing to share it.

Other Aliens Granted Asylum and Statutory Withholding

In my experience, nearly every Salvadoran asylum and withholding claim filed in the last 20 years was premised on gang threats: of extortion, retribution, kidnapping, or recruitment. Even domestic violence claims usually had a gang nexus.

It’s unknown how many of those claims were granted, but given the changed country conditions in El Salvador, and ICE’s specific regulatory authority to move to reopen those grants, the agency may want to go back through its records to see how many claims are now amenable to reopening.

The changed circumstances in El Salvador would certainly be relevant to eligibility for aliens granted asylum based on fear of the gangs who apply for green cards under section 209(b) of the INA.

That provision states that DHS or an immigration judge may adjust an asylee’s status to that of a lawful permanent resident provided, inter alia, the alien “applies for such adjustment”, has been physically present here “for at least one year after being granted asylum”, and “continues to be a refugee within the meaning of” section 101(a)(42) of the INA.

To be a “refugee,” an alien usually must still have a “well-founded fear” of persecution, and if the gang that was the source of that fear no longer poses a threat, the alien is no longer a refugee — and thus not eligible for a green card.

The U.S. government has used every possible option at its disposal to resolve the case of Kilmar Abrego Garcia, a Salvadoran national who was granted statutory withholding in 2019 — except for the logical choice, a motion to reopen and terminate that withholding grant based on changed country conditions. The only question at this point is — why not?