The Patriot Post® · What Process Is Due Kilmar Abrego Garcia?

By Mark W. Fowler

“Never invite a wolf into your house.” —Chinese proverb

Kilmar Abrego Garcia is neither a saint nor a monster, but he seems to live in the shadow of questionable circumstances. In 2012, allegedly out of fear of persecution by an El Salvadoran gang that was extorting his mother, he entered the United States illegally. He remained below ICE and law enforcement radar until 2019. That year found him loitering in a Home Depot parking lot with other foreigners. He wore a hat decorated with rolls of money; the eyes, ears, and mouth of the U.S. presidents were blacked out, supposedly representing a gang-affiliated motto of “See no evil, hear no evil, speak no evil.”

In the ensuing arrest for loitering, the arresting officer received information that Abrego Garcia was a member of MS-13. In an ICE deportation hearing, the administrative law judge denied an initial bond request based on an unidentified informant’s information because he had previously been found reliable. In a subsequent hearing, Abrego Garcia was denied asylum but given a no-removal order based on the threat he claimed from other gang members. In this sense, he has never been convicted by a judge of being an MS-13 gang member, but there are judicial findings to that effect. On appeal, the gang affiliation was affirmed, but the no-removal order also allowed him to stay in the United States legally.

In 2021, Abrego Garcia’s wife filed an affidavit in support of a domestic order of protection claiming he had ripped her shirt off, scratched her, and caused injuries that made her bleed. Ultimately, this case was dismissed because she declined to appear.

In 2022, Abrego Garcia was stopped for speeding with eight illegal immigrants in the car. He was allegedly transporting them to a construction job, but there was no luggage, and all eight gave an address identical to Abrego Garcia’s address in Maryland, even though they were coming from Texas. This reeks of human trafficking.

By 2025, he had worked in the United States about 14 years, married, and had a child. His wife has two other children from another relationship. All have special needs.

Trump had declared MS-13 and other gangs as enemies under the Alien Enemies Act of 1798 and began deporting them, representing a novel interpretation and application of this seldom-used law. Inasmuch as Abrego Garcia was from El Salvador and had court documents “finding” he was a member of MS-13, he was deported erroneously given the no-removal order.

A federal district court and now the United States Supreme Court have ordered the Trump administration to “facilitate” his return to the U.S., but the president of El Salvador has refused to return him. Thus, we have a legal stalemate. Unfortunately, the courts have no jurisdiction to order the administration to break him out of jail and return him. If El Salvador refuses to surrender him, he is staying in El Salvador. One suspects a phone call from the White House would break said deadlock.

The standards of proof in criminal and immigration cases are different. In immigration cases, the government is presumed to be correct and the burden is on the immigrant to prove he deserves asylum or a continuation of a withhold-from-removal order. The Trump administration has conceded that Abrego Garcia was improperly removed. The evidence supporting his removal is very thin — essentially hearsay — and may or may not stand up in a second round of hearings.

The foundation of a society based on law is due process. Abrego Garcia had his day in court and prevailed, walking away with a do-not-remove order. The administration ignored that order. He also walked away with a judicial finding that he was a member of MS-13. The legitimacy of this administration will depend in part on its recognition of a legitimate court order. If the case against Abrego Garcia is strong, it is just a matter of returning him, making that case, and deporting him again. But President Donald Trump ought not waste political capital by continuing his present course.

Mark Fowler is a board-certified physician and former attorney. He can be reached at [email protected].