In the Matter of Kilmar Abrego Garcia.

I carry no brief for Kilmar Abrego Garcia. The manner of his arrest and transport to a notorious prison in El Salvador is, however, worthy of our concern.

It’s an awful plight. He is the Salvadoran whom the Trump administration has admitted was mistakenly shuttled off to a notorious mega prison in El Salvador. Let that marinate for a moment.

The Trump administration admits it made a mistake, but is perfectly happy to let that mistake stand and leave this man imprisoned there. The Trump Administration is doubling down on a calumny. One recoils at the spectacle of any government official, let alone the President of the United States, flipping the bird to the American justice system by acknowledging it made an outrageous mistake, but is perfectly happy to let that mistake stand notwithstanding the tragedy it inflicts on a man and his family. Yet, that is what President Trump and his Administration seem perfectly willing to do.

Trump claims that Garcia is a gang member and offers as proof what seems to be a photograph of a hand with MS 13 tattooed on the knuckles. Others were quick to claim that recent photographs showing Garcia’s hands do not have the alleged tattoos, nor had there been any prior mention of such tattoos. Some online sleuths claimed the tattoos with MS13 on the knuckles are photoshopped renditions. We will know soon enough whether or not the alleged MS13 tattoos on his knuckles are authentic. They are either on his knuckles or they are not.

A cursory look into the matter suggests that the Trump Administration’s allegation of Garcia’s gang membership may be questionable. His arrest record does not indicate any involvement in criminal activity or gang membership. It seems curious that there has been no prior mention of his alleged gang membership. However, if he was, or is, a gang member, that evidence is sure to come out.

So, what was there about Kilmar Abrego Garcia’s record that justified his being spirited off to a notorious Salvadorian prison? Well, nothing other than the fact that he was wearing a hoodie and a Chicago Bulls baseball cap that the arresting officers said was indicative of Hispanic gang culture. There had been no prior reference to the alleged incriminating tattoos.

Garcia was arrested in 2019 for coming to the United States unlawfully. There is no dispute about that. However, when he was released from custody, the immigration judge handling the case granted Garcia “withholding of removal” status, which forbade the government from deporting him back to El Salvador. Immigration officials in the Trump Administration admit that the “withholding of removal” status granted to Garcia should have precluded his being nabbed and sent to a Salvadorian hellhole. Still, they shrug and, in effect, say “too bad, he’s there now, and we don’t intend to lift a finger to bring him back, his wife and children be damned.

Understand this. There is no gray area in this case. Garcia was granted status by the American government that protected him from removal to El Salvador. It is undoubtedly true that the protection from removal status that Garcia secured six years ago could certainly be challenged. However, the Trump Administration never challenged Garcia’s status. They ignored it and sent him to El Salvador, thereby disregarding a federal judge's decision that had granted Garcia that status.

Suppose our system of justice has been diminished in the case of Kilmar Abrego Garcia. In that case, that diminution rests with those who are responsible for grabbing him off the street and sending him off to oblivion in a Salvadorian prison without a hearing or any semblance of justice. To them, Kilmar Abrego Garcia, his wife, and their children are invisible. They are nobodies.

The issue isn’t whether or not Kilmar Abrego Garcia is entitled to be in the United States. The issue is simply whether Garcia was, or is, entitled to his day in court when the government decided to negate, without a hearing, the “withholding of removal” status that had been granted to him.

Garcia’s “withholding of removal” status should have protected him from the arbitrary rendition to El Salvador without a hearing of any kind by the Trump Administration. After all, “withholding of removal” means what it says. It is pretty unambiguous. It is a form of protection that America grants to individuals in our country who have a well-founded fear of persecution in their home country. This status prohibits removal to a country where one’s life or freedom might be threatened. No one is suggesting that “withholding of removal” grants permanent residency. It doesn’t. It simply grants an individual the opportunity to be heard, to have their day in court, and to explain why removal would represent a danger to them. The mistake that the Trump Administration admits it made when it grabbed Garcia and banished him to a notorious prison in El Salvador isn’t without consequence for Garcia.

Garcia wasn’t a fugitive living in the United States. He had attained a measure of legal status. He has a wife and children here in America. He is a skilled laborer, a sheet metal worker, and when he has been able to find work, he has, presumably, paid his taxes and supported his family. And yes, it has not always been smooth sailing for Kilmar Abrego Garcia and his family. His wife, Jennifer, sought a temporary civil protective order against him in 2021. Still, she dropped the matter, explaining that she acted out of caution due to her previous experience in which she survived domestic violence. She dropped the matter, didn’t go to court, and has stated that Garcia has always been a loving partner and father. She and Garcia went to counseling after the incident, as many responsible couples do following marital difficulty. The Trump administration isn’t demonstrating resolve by allowing Garcia to sit in a Salvadorian prison because of a mistake the Trump Administration has admitted it made in sending him there in the first place. It is simply demonstrating callousness.

Garcia had attained a measure of protection, or thought he had, when America granted him “withholding of removal” status. It is doubtful that President Trump knew of Garcia’s “withholding of removal” status. It is also questionable that President Trump would have cared if he had known of this status granted to Garcia. This “withholding of removal” status is not insignificant. It has to mean something, or there would be no such thing as “withholding of removal” status in American immigration law. When Kilmar Garcia was granted “withholding of removal” status, he was actually granted protection from being returned to El Salvador, which is his home country. Withholding of removal status protected Garcia from removal to El Salvador. That’s it. Yet, that’s where he is today—in a Salvadoran prison.

Please share our weekly commentary with others.

Of Thee I Sing 1776. Subscribe here:

https://oftheeising1776.substack.com/subscribe

Recent podcasts have featured my commentary on Liz Cheney’s book, “Oath and Honor,” as well as my commentaries regarding:

U.S. Representative Jim Jordan,

Brian Kemp and Those Republicans of Georgia,

The Trump Indictments,

The Fox Corp Settlement,

The CNN Trump Town Hall,

The Hunter Biden plea deal,

The New American Cult of Personality,

and my interviews with William Bratton, Retired Chief of Police in New York City, Los Angeles, and Boston;

Rikki Klieman, Attorney, Network News Analyst, and best-selling author;

John Thoresen, Executive Director, Barbara Sinatra Children’s Center;

Katherine Gehl, co-author of The Politics Industry and founder of the Institute for Political Innovation;

Jazz artist Ann Hampton Callaway;

Outlander author Diana Gabaldon;

AI Data Scientist Lawrence Kite;

Ryan Clancy, Chief Strategist of No Labels;

Former Senator Barbara Boxer;

Former Senator Joe Lieberman;

and former Maryland Governor Larry Hogan.

Novels by Hal Gershowitz