The Trump Administration Could Have Fought to Deport Abrego Garcia in 2019. It Passed on the Chance

During his first term, Donald Trump’s administration had a chance to challenge Kilmar Abrego Garcia’s protection from deportation, but didn’t take it, according to court documents reviewed by TIME. In October 2019, an immigration judge decided Abrego Garcia shouldn’t be removed because of violent gang threats he faced if he returned to El Salvador. Trump’s Immigration and Customs Enforcement had 30 days to appeal that ruling. No appeal was filed, according to the court documents.

The little-noticed episode was a key part of the long saga of Abrego Garcia, the Salvadorian sheet metal apprentice living in Maryland who was accused of being an MS-13 gang member and mistakenly sent in March by the Trump administration to El Salvador’s notorious CECOT prison. And it points to the main beef the courts have with Trump over his deportation actions: Trump can deport people from the country, but when he does, he has to follow the law.

Abrego Garcia was marched into CECOT prison on March 15. On Thursday, Maryland Senator Chris Van Hollen, a Democrat, met with Abrego Garcia in El Salvador. Van Hollen posted a photo on X of himself sitting at a table with coffee cups and glasses of water in front of them. Abrego Garcia is dressed in a short-sleeved plaid shirt and is wearing a white Kansas City Chiefs Super Bowl championship hat. El Salvador’s President Nayib Bukele mocked the meeting on X and wrote that Abrego Garcia won’t be released, saying “he gets the honor of staying in El Salvador’s custody.”

Trump officials have acknowledged that Abrego Garcia’s deportation was an “administrative error” but have refused to correct it. The Supreme Court ruled on April 10 that the Trump administration must “facilitate” his release from prison in El Salvador and ensure his case is “handled as it would have been” if he hadn’t been improperly sent to El Salvador.  But so far, the Trump administration has done nothing.

Instead, the Trump administration has worked overtime to convict Abrego Garcia in the court of public opinion. On Wednesday, the Department of Homeland Security published a temporary restraining order that Abrego Garcia’s wife had filed against him in 2021 that said he had “punched and scratched” and “grabbed and bruised” her, and police reports detailing his alleged gang affiliation under the headline: “THE REAL STORY: Kilmar Abrego Garcia is an MS-13 Gang member with a History of Violence.”

What the Supreme Court has demanded, though, is not proof Abrego Garcia has never done anything wrong. The court demands that the Trump administration follow the procedures laid out in the law for removing someone from the country.

The U.S. District Court Judge handling Abrego Garcia’s case, Paula Xinis, has ordered officials from the Department of Homeland Security and the State Department to sit for depositions by April 23 about how his removal was handled and allowed Abrego Garcia’s lawyers to demand documents about his case.

When the Trump administration tried to quash those instructions at the Fourth Circuit court of appeals, three federal judges said Trump must comply. “The government is asserting a right to stash away residents of this country in foreign prisons without the semblance of due process that is the foundation of our constitutional order," wrote conservative circuit Judge J. Harvie Wilkinson III, who was appointed to the bench by Ronald Reagan. Even though the Trump administration asserts that Abrego Garcia is a terrorist and a member of MS-13, the judge wrote, "he is still entitled to due process. If the government is confident of its position, it should be assured that position will prevail in proceedings to terminate the withholding of removal order.”

Abrego Garcia's deportation had been prohibited in 2019 because an immigration judge granted him “withholding of removal.” When the immigration judge considered his case, Abrego Garcia was being held in immigration detention after being arrested by Prince George's County police in a Home Depot parking lot. A “gang field interview” sheet released by the Justice Department on Wednesday describes him wearing "a Chicago Bulls hat and a hoodie with rolls of money covering the eyes, ears, and mouth of the presidents." Police said the clothing was "indicative of the Hispanic gang culture."

The immigration judge had looked at the information alleging Abrego Garcia’s gang ties provided by the Department of Homeland Security and determined it wasn’t sufficient to prove he was a member of the gang, according to court documents. Instead, the judge gave weight to testimony from his family that a separate gang called Barrio 18 in El Salvador had threatened Abrego Garcia with death because his family would not pay the gang protection money. The judge acknowledged that Abrego Garcia’s case wasn’t a slam dunk. “This case is a close call,” Judge David M. Jones wrote in his order. At the end of the order is a line that says “each party has the right to appeal this decision” within 30 days.

That decision was still on the books when Abrego Garcia was placed on a plane to El Salvador last month. The Bureau of Immigration Appeals database logs the status of immigration cases by unique identifiers called “A-Numbers,” short for Alien Registration Numbers. Abrego Garcia’s entry shows his application for “withholding of removal” was granted on Oct. 10, 2019. Below that is the message: “No appeal was received for this case.” The White House, DHS and ICE did not reply to requests for comment.

John Sandweg, who was the acting director of Immigration and Customs Enforcement during the Obama administration, says that ICE attorneys would usually appeal such a decision if they thought that the person was a public safety threat. “I do think that’s indicative that they didn’t have serious concerns about this guy from a public safety perspective,” Sandweg says. “Otherwise, in cases where they do, they absolutely appeal.”