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PaperclipPerfector  1mo ago (text post)   33491 thread views

Culture War Roundup for the week of March 31, 2025

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More news in immigration yesterday. There's an Atlantic article about it. The docket is Abrego Garcia v. Noem. The facts I'm recounting come from the declaration of Robert L. Cerna, Acting Field Office Director of the ICE Harlingen Field Office. This declaration is attached as Exhibit C to the government's response in opposition to the TRO (ECF #11).

6. On March 15, 2025, two planes carrying aliens being removed under the Alien Enemies Act (“AEA”) and one carrying aliens with Title 8 removal orders departed the United States for El Salvador. Abrego-Garcia, a native and citizen of El Salvador, was on the third flight and thus had his removal order to El Salvador executed. This removal was an error.

7. On March 29, 2019, the Department of Homeland Security (DHS) served Abrego- Garcia with a Notice to Appear, charging him as inadmissible pursuant to Section 1182(a)(6)(A)(i) of Title 8 of the United States Code, “as an alien present in the United States without being admitted or paroled, or who arrived in the United States at any time or place other than as designated by the [Secretary of Homeland Security].”

...

9. On October 10, 2019, an IJ ordered Abrego-Garcia’s removal from the United States but granted withholding of removal to El Salvador pursuant to 8 U.S.C. § 1231(b)(3)(A). This grant of protection prohibited his removal to El Salvador.

10 . Following this grant of withholding of removal, Abrego-Garcia was released from ICE custody.

11. On March 12, 2025, ICE Homeland Security Investigations arrested Abrego- Garcia due to his prominent role in MS-13. Over the next two days, Abrego-Garcia was transferred to the staging area for the removal flights discussed in Paragraph 6.

12. The operation that led to Abrego-Garcia’s removal to El Salvador was designed to only include individuals with no impediments to removal. Generally, individuals were not placed on the manifest until they were cleared for removal.

13. ICE was aware of this grant of withholding of removal at the time Abrego- Garcia’s removal from the United States. Reference was made to this status on internal forms.

14. Abrego-Garcia was not on the initial manifest of the Title 8 flight to be removed to El Salvador. Rather, he was an alternate. As others were removed from the flight for various reasons, he moved up the list and was assigned to the flight. The manifest did not indicate that Abrego-Garcia should not be removed.

15. Through administrative error, Abrego-Garcia was removed from the United States to El Salvador. This was an oversight, and the removal was carried out in good faith based on the existence of a final order of removal and Abrego-Garcia’s purported membership in MS-13.

That last line is, frankly, insane to me given the circumstances. "Yea we knew at the time we deported the guy to El Salvador that it was illegal for us to do it, but it was in good faith!" What is the government's response to having illegally deported someone? Too bad! The government makes a few arguments but here I want to zoom in on a particular one: redressability. Ordinarily in order for a U.S. Federal court to have jurisdiction to hear a case the Plaintiff (that would be Abrego-Garcia, his wife, and his 5 year old son in this case) bears the burden of establishing that an order of the court would redress their claimed injury. This cannot be met here, according to the government, in part because they no longer have custody of Abrego-Garcia and so there is no order the Court can issue as to the United States Government that will reddress their injury. The appropriate entity to be enjoined is the government of El Salvador, over which a U.S. federal court obviously has no jurisdiction.

As best I can tell nothing in the redressability argument turns on any facts about his legal status in the United States. The argument is strictly about who presently has custody of the defendant in question. I do not see any reason why the government could not make an identical argument if an "administrative error" meant they deported a United States citizen.

So why was an ms13 gang member being legally shielded from deportation again? What system did that, and why is it legitimate?

an ms13 gang member

The alien claims that the govt. has presented no evidence that he's a member of any gang at all, let alone MS-13 in particular.

why was an [illegal alien] being legally shielded from deportation

The alien claims: in his hometown he was targeted by a gang; the persecution persisted even after his family moved three times (though only a 15-minute drive away each time); and sending the alien out of the country was the family's last resort. The immigration pseudo-judge believed that claim and granted withholding of removal. The govt. did not appeal that determination.

The alien claims that the govt. has presented no evidence that he's a member of any gang at all, let alone MS-13 in particular.

How about we check for ourselves?

Here is the specific claim from Abrego Garcia v. Noem linked by OP:

'19. Plaintiff Abrego Garcia is not a member of or has no affiliation with Tren de Aragua, MS-13, or any other criminal or street gang. Although he has been accused of general “gang affiliation,” the U.S. government has never produced an iota of evidence to support this unfounded accusation.

Here is what the government says in their DEFENDANTS’ MEMORANDUM linked by OP:

During a bond hearing, Immigration and Customs Enforcement (“ICE”) stated that a confidential informant had advised that Abrego Garcia was an active member of the criminal gang MS-13. Id. ¶ 31. Bond was denied. See id. ¶¶ 34, 39; see also IJ Order, infra Ex. A, at 2–3 (finding that Abrego Garcia was a danger to the community); BIA Opinion, infra Ex. B, at 1–2 (adopting and affirming IJ Order, specifically finding no clear error in its dangerousness finding).

...

Abrego Garcia is barred from disputing that, as a member of the criminal gang MS-13, he is a danger to the community. This factual finding was made in his bond proceedings before the agency, IJ Order 2–3, and he appealed that finding to the Board of Immigration Appeals, which affirmed it as not clearly erroneous, BIA Opinion 1–2. Because he did not seek further review of the Board’s decision, that decision is a final judgment precluding relitigation of the issues it resolved.

So the government has presented evidence that Garcia was in a gang (a confidential informant). And the court has found that he was in fact a gang member. And when Garcia appealed that finding, the finding was affirmed. Which he did not again appeal.

Seems... not ideal... that people can just make stuff up in the "FACTS" section of court documents. Why are people allowed to claim things as "FACTS" that clearly aren't facts? The government either has or has not presented evidence that Garcia is in a gang. Both can't be true, and both sides are claiming that they did/did not provide evidence. Someone's "FACTS" are not actually factual.

This clearly does not meet the standards of a criminal trial in any civilized country, including the US. He did not get to face and cross-examine his accuser.

Given that what is at stake here is El Salvador locking him up long-term, I feel it is reasonable to require similar standards of evidence to a criminal trial.

I would maybe agree with your feelings if Garcia made any effort to come here legally. But he did not. He chose to lie and cheat his way in. So I feel it is reasonable to deport him, regardless of the outcome.

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