With deportation, ICE undoes immigration court judge’s ruling

I’ve been writing about immigration for over two decades. I’ve been practicing immigration law for over three decades. You could say I’m an expert.

For much of my professional life, I’ve tried to straddle the often invisible line between advocating for immigrant rights, and supporting government efforts to keep this country safe. I work with the government, when necessary, because it’s better to avoid the adversarial process and reach a good result for both the client and the country. And never before, not even during the first Trump administration, a man for whom I voted twice, did I think that due process was in danger.



I can’t say that anymore. The straw that broke the camel’s back happened when ICE removed, because they don’t say “deported” anymore, a man who had been granted protection by a Trump-era judge. In 2019, Kilmar Abrego Garcia was arrested by ICE under suspicion of being a gang member.

No evidence was presented in court about his alleged gang ties, nothing more than suggestions from confidential informants. I say this, even though his alleged “gang ties” are irrelevant. The immigration judge, under Trump’s DOJ, found that Abrego would very likely be persecuted, tortured and even killed if he were forced to go back to his native country, El Salvador.

Let’s pause for a moment, while I give you some inside baseball. The protection that Abrego Garcia was given is called “withholding of removal.” This is similar to asylum, but has a higher standard of proof.

For asylum, you need to prove to an immigration judge that you have a 10% chance of being persecuted if you are forced toreturn to your home country. The standard is called “well founded fear” of persecution. For withholding, you have a higher bar to satisfy.

You need to show that it is “more likely than not” that you will be in danger if you are returned. In other words, you need to show at least a 51% chance that you will be harmed. I’ve had both sorts of cases, and I can promise you that withholding cases are much more difficult because of the evidentiary burden that my clients carry.

I’ve won those cases, but it’s really quite a fight. When you satisfy that burden, a judge is then statutorily required to bar your“deportation” to your home country. That means that even if you are not a nice person, a gang member let’s say, you are still entitled to protection from removal.

When ICE arrested Abrego Garcia last month, they knew that he had an order of withholding. They knew, by their own admission, that he was protected by law from being sent back to El Salvador. They knew that this would be a violation of both domestic immigration law, and international human rights law.

And they put him on a plane and sent him to El Salvador, to one of the most dangerous and notorious prisons in the Western Hemisphere. When the media got word of the story and it was publicized, the response from the government was, essentially, “oops.” And then it became, “and we can’t get him back because he’s El Salvador’s problem now.

” And then it became “and he was a gang member, trust us.” Assuming that he was a gang member, even though there is no conclusive proof of that and even though an immigration judge would have mentioned that in his decision, the “oops” reaction is absolutely and fundamentally repellent. That is because our government is essentially saying that it does not matter that they ignored a mandatory protection granted under the first Trump administration.

It is saying that it did not need to go to court to have the order of withholding lifted by legal process. It is saying that my clients are in the same, tenuous situation. It is saying that the government can unilaterally undo the decision of a judge, without any appellate review.

That is not the sort of country I want to live in. A friend on social media said that she hoped the government would deport as many people who were a danger to our country as possible. I told her that I wanted that, too, as long as they followed the law.

Due process is as important as national security. As Ben Franklin, the greatest Philadelphian of all time wrote “Those who would give up essential Liberty, to purchase a littletemporary Safety, deserve neither Liberty nor Safety.” Conservatives always respected the rule of law.

This one still does..