Everyone Is A Bad Actor

There is nothing to champion on any side of the Garcia deportation case

Illegal Alien Kilmar Abrego Garcia,

Three months in, and the whirlwind of the Trump administration shows no sign of slowing down. The most recent instance of oppositional outrage, and cause celebre for the open borders crowd, has revolved around the “mistaken” deportation of one Kilmer Abrego Garcia back to a prison in his home country of El Salvador, and the intense media and legal campaign to bring him back to the US. The case itself isn’t all that complicated, or at least it shouldn’t be, but it does expose so much of what is wrong with our government, with our laws, and with our media. There is no “right” side to this story, and there are no good actors. The media are propagandists. The “victim” is a criminal. The law itself is an ass. Our judges have corrupted the Constitution. The Trump admin is stupid and tendentious. And most of the Trump critics are disingenuous hypocrites. There are no good guys involved in this story in any way at all. Everyone is a villain.

For anyone who has been living under a rock for the last few weeks, the basic facts, without the inevitable media narrative-framing and propagandizing, are this:

Garcia, a native and citizen of El Salvador, left his home country in late 2011 or early 2012 at the age of 16 and illegally entered the United States, crossing the southern border undetected somewhere in Texas in March of 2012. He remained undetected for 7 years, eventually finding himself in Maryland working odd jobs and entering into a relationship with a US citizen, a mother of two named Jennifer Vasquez Sura. Then, in 2019, while Sura was pregnant with his child, he was discovered by ICE “loitering” in front of a Home Depot with 2 suspected members of MS-13, a criminal Salvadoran gang. He was arrested for being in the country without authorization, charged with removability, and put into the deportation process. While he was in detention awaiting the deportation process, he requested a hearing to be paroled, but was eventually denied parole by an immigration judge on the grounds that he was a flight risk and a potential danger to the public due to indications that he too was a member of MS-13. He appealed that decision, but it was affirmed by the Board of Immigration Appeals. During his deportation hearing, Garcia then applied for three different forms of protection - asylum, withholding of removal, and also protection under article 3 of the Convention Against Torture - on the grounds that he faced threats to his life from a criminal gang in El Salvador called Barrio 18. His asylum claim was time-barred and therefore rejected, as was his claim for article 3 protection, but his withholding of removal claim was granted. Thus, although he had been confirmed to be in the country illegally, and a deportation order against him had been issued, the judge also ruled that he could not be deported specifically to El Salvador. Any place on earth other than El Salvador would have been fine. But because there was no agreement with any other nation to take him, he was eventually paroled back into and given authorization to work in the US.

Since his release in 2019, he has had three subsequent run-ins with law enforcement. First, in 2021, his former girlfriend and now wife Jennifer Vasquez Sura filed for a restraining order against Garcia in Maryland, accusing him of beating her. Then in 2022, after being stopped by the Tennessee Highway Patrol for speeding, he was reported to the FBI for suspected human trafficking, but the FBI told the THP not to detain him. Finally, on March 12 of this year, ICE arrested him in Baltimore, accused him of being a member of MS-13, and, in violation of his still existing withholding of removal order, deported him to El Salvador 3 days later along with 200 suspected Venezuelan gang members (which is a whole ‘nother story!) who were also being deported to El Salvador to be held in its infamous CECOT prison.

That is the unvarnished, objective facts, but unless one is inclined to do one’s own research and dig deep into the weeds of it, it is difficult to know what is really going on because…

The media are shameless propagandists

The corporate media has been shameless in its coverage and framing of the Garcia case. Virtually every headline and lead paragraph in the Trump-hating media has described Garcia sympathetically, referring to him simply as a “Maryland man” and characterizing him as a “loving father and husband”, while deliberately obscuring the fact that he is an adjudicated illegal alien with a deportation order against him. NPR, the Democrat’s government-funded PR wing, was typical, claiming that Garcia had “been granted protection by an immigration judge in 2019 that should have prevented him from being deported to El Salvador” without informing its readers that the same judge nevertheless issued a deportation order against him that allowed deportation to literally any other place on earth.

NPR also deceptively described Garcia simply as someone “who lived in the U.S. legally and had a work permit”, conflating being in the US “legally” with being released under supervision while awaiting deportation, two very different things. Indeed, the very reason for the existence of the deportation order that it never bothered to mention to its audience was that Garcia did not, in fact, have legal status to live in the US. NBC also advanced its own reality-obscuring narrative by reporting that Garcia “has never been charged with or convicted of a crime in the United States, records show.” Strictly speaking it may be true that he was never “charged” or “convicted” of a crime in an Article III courtroom. But we know for a fact that he did commit a crime, because crossing the border illegally is, in fact, a crime, and Garcia has admitted to doing exactly that. Even now his lawyers do not dispute it. Which means…

The “victim” is a criminal

While much of the commentary around the case involves either hyping up the allegations about Garcia being a gang member, a wife-beater, and a human trafficker (He’s dangerous!!!), or highlighting the fact that not a single one of these allegations has been adjudicated by or proven in an actual court of law (No due process!!!!), the single most salient, but rarely focused upon, fact about Garcia is undisputed and indeed admitted by Garcia himself. He crossed the border illegally, not at a port of entry, without authorization, and remained and worked in the US illegally for 7 years. That is a crime, the consequence of which can be up to 6 months in prison, but at the very least is supposed to be removal from the US. Whether or not he is member of MS-13, or beat up his wife, or smuggled in 8 other illegals from Texas, and whether or not the government could prove the veracity of any of these allegations, is utterly irrelevant to what the ultimate disposition of his case should have been. The consequences for having entered and remained illegally in the US should have been deportation out of the US. Instead Garcia was released into the US and rewarded with a work permit. How does that happen? Well…

The law is an ass

For some incomprehensible reason, our immigration laws give virtually the same protections and right to asylum both to people who show up at a port of entry openly seeking permission to enter the country and to people who sneak across the border illegally, attempt to evade detection, and ultimately appear before an immigration court only under compulsion because they were unlucky enough to get caught breaking the law. In a sane world, a claim of asylum would only be available to those who openly declare it as they seek authorization to enter the country. Genuine asylum seekers don’t need, and shouldn’t want, to sneak into the country. Thus an asylum claim from someone who has snuck into the country ought to be automatically deemed to be invalid and rejected precisely because they illegally entered the country. But we do not live in that sane world.

Of course, as mentioned above, Garcia was not in fact granted asylum. In order to be valid, an asylum claim must be made within one year of arrival into the US, even if that arrival involves illegally crossing the border, and Garcia didn’t announce his alleged fear of persecution in El Salvador until 7 years after his illegal entry into the US. But no matter, because our immigration law stupidly undermines its own time limit on asylum claims by making the next best thing available without a time limit, a thing called a Withholding of Removal Order. Withholding of removal is essentially asylum-lite. The grounds for claiming it are basically the same as asylum - ie fear of persecution if returned to one’s own country - but the benefits are more restrictive. Unlike an asylee, someone granted a withholding order does not have a pathway to official permanent residence or citizenship, and, in theory, the person can be deported to any country that is willing to take them, except the one to which the withholding order applies. And the order can be revoked at a future date, if the conditions that created the alleged fear of persecution are deemed to have been eliminated. It is, more or less, merely a temporary form of asylum, subject to future government action. And this was one of the scattershot of strategies used by Garcia to avoid deportation, and it was granted.

Still, recall that Garcia had been deemed a danger to the public due to his suspected gang membership, and thus had been detained and denied bond during his immigration hearing. Why wasn’t he just kept in detention while the government sought out a third party country to which to deport him? Because….

Our judges have corrupted the Constitution

Our immigration laws allow for the detention of deportees while the actual process of deportation is being arranged, a process that is supposed to be done within 90 days of a deportation order being issued, although the 90 day window can be extended if practicalities make it impossible to effectuate deportation within that window. However, in a 2001 Supreme Court case called Zadvydas v Davis, the Supreme Court held, by a 5-4 majority, that any extended detention time beyond the statutory 90 days must be “reasonable” based on the needs dictated by removal efforts, and in cases where any path to a successful removal is unclear or unlikely, such indefinite detention amounts to a violation of the Constitution’s due process clause, and therefore cannot be done. Both the late, great Justice Antonin Scalia and the current, great Justice Clarence Thomas dissented in that case, with Scalia pointing out the blindingly obvious:

A criminal alien under final order of removal who allegedly will not be accepted by any other country in the reasonably foreseeable future claims a constitutional right of supervised release into the United States. This claim can be repackaged as freedom from “physical restraint” or freedom from “indefinite detention,” but it is at bottom a claimed right of release into this country by an individual who concededly has no legal right to be here. There is no such constitutional right.

However, because the Court in 2001 was comprised largely of justices who cared more about policy than about the Constitution, Scalia’s undeniable observation did not win the day, and the ruling has been controlling law ever since. And since, by dint of the withholding of removal order, Garcia could not be removed to his home country of El Salvador, and the prospects of finding a third-party country willing to take him were unlikely (apparently less than 2% of aliens subject to WOR are ever deported to a third country), Garcia had to be released from detention and allowed entry into the country.

Just think about the mind boggling absurdity. The absence of a right to be in the US creates the condition of deportability. But the absence of the ability to deport creates a Constitutional right to be free inside the US. This. Is. Insane.

Still, the inability to deport Garcia was not out of the US’s own hands. It was self imposed. El Salvador was not refusing to accept him, we were refusing to send him to the only nation on earth that had both an obligation and a willingness to take him. If the Trump administration genuinely wanted to enforce the law against Garcia and remove him from the country within the confines of existing legal procedure, all it had to do was get rid of the withholding of removal order in an immigration court, which it easily could have done. Even apart from the fact that immigration courts exist as part of the Executive branch, not the Judicial branch, and so are answerable to the President himself, purely as a matter of substance the justification for Garcia’s claimed fear of persecution in El Salvador no longer exists. The source of the alleged threats against him and his family, the Barrio 18 gang, was all but wiped out by Salvadoran President Nayib Bukele’s highly successful, albeit not uncontroversial, crackdown on gang violence. So why didn’t the Trump administration just do this and avoid the legal and political brouhaha? Because….

The Trump administration is stupid and tendentious

The details of Garcia’s actual deportation flight to El Salvador are not at all clear, but by most accounts he was included among what were primarily Venezuelan illegals who were suspected/confirmed members of the Venezuelan criminal gang Tren de Aragua, or TdA. Those Venezuelans were being sent to El Salvador to be housed in El Salvador’s infamous CECOT prison, subject to a deal made between the Trump administration and President Bukele, the details of which are also not entirely clear, but which apparently involves the US paying El Salvador to detain deportable aliens from the US. In the inevitable court hearing over the government’s violation of Garcia’s withholding of removal order, the Trump administration claimed that Garcia’s removal was an “administrative error”. But what exactly was the error? Was Garcia mistakenly included among all of the TdA Venezuelans being sent to CECOT? Or was he deliberately included under the mistaken belief that he did not have a withholding order? We have no idea. And, indeed, outside the formality of the courtroom, there are even some Trump officials who are proclaiming that it wasn’t an error at all.

The judge hearing the case, Judge Paula Xinis, has ordered the administration to “effectuate” Garcia’s return to the US, but the Trump administration has argued that Garcia is no longer in US custody, and therefore it cannot “effectuate” his return without engaging in international diplomacy with El Salvador, something that, due to Constitutional separation of powers, an Article III judge cannot require of the Article II executive. The dispute has gone all the way to the Supreme Court, which issued a mealy mouthed and unclear opinion that had both sides claiming victory, and then sent the case back to Xinis for further clarification, which is where it currently stands.

There are not always legal remedies to illegal action, and so while the removal of Garcia to El Salvador was a clear violation of his withholding of removal order, it is entirely possible that there is nothing that the courts alone can do about it. The legal question of whether the court can Constitutionally order the administration to have Garcia returned to the US depends on a lot of things that are unknown, one of which is the details of Trump’s CECOT deal and whether or not Garcia is being held pursuant to that deal, and the Trump administration seems intent on keeping those things unknown.

But as a substantive matter, the idea that it would take delicate international diplomacy in order to bring him back is tendentious nonsense. The only “diplomacy” required would be for Trump to say to Bukele, “We made a mistake and we need him back’, and he would be sent back. If Garcia was genuinely deported to El Salvador through an “administrative error”, Trump should want to correct the error and have it done properly, regardless of whether or not a court is ordering or can order him to do it. Bring him back, get rid of the withholding order, and then re-deport him again.

I think the real reason Trump is fighting this so hard in the courts, despite the availability of the easy and obvious solution of simply getting an immigration court to void Garcia’s withholding order, is that it implicates Trump’s invocation of the Alien Enemies Act and the power it gives the president to deport declared alien enemies outside the normal immigration process. Back in February, Trump designated as official terrorist organizations a whole slew of international gangs, among which were both Tren de Aragua and MS-13. And it was on the basis of his Alien Enemy Act powers that Trump was deporting many of the Venezuelans whose deportation flight Garcia was “mistakenly” included on. Those Venezuelans have been declared to be, although also not proven in any court of law to be, members of TdA, a now-official terrorist organization, and thus both detainable and deportable on the singular say-so of the president, under the Alien Enemies Act. The Trump administration asserts that Garcia is a member of MS-13, a claim for which there seems to be some less-than-definitive evidence, but which has also not been proven in any court of law. And, although the administration has not yet made the argument in court, I think that its position is that Garcia’s withholding order was voided simply by presidential decree under the Alien Enemies Act. The import of the Garcia case is not simply the removal of a single illegal alien, but is instead the exercise of presidential power.

Of course there has been much controversy over Trump’s declaration of criminal gangs as terrorists and his invocation of the Alien Enemies Act, a rarely used and much vilified 1798 law that gives the president unilateral power to remove alien enemies from the US in the event of an “invasion or predatory incursion” by “any foreign nation or government”. Trump has declared that TdA’s presence in the US represents just such an “invasion”, and thus he can unilaterally start deporting anyone he claims to be a part of this invasion. Critics say that this is a clear abuse of power, and those critics are right. None of these gangs are “terrorists” in any real sense, and the presence of TdA in the US is no more an example of an “invasion” by Venezuela than was the presence of the mafia in the US an example of an “invasion” by Italy. It is utter nonsense, and the declaration has clearly been contrived not as a means of protecting the US from actual terrorists or an actual “invasion”, but simply as a means of deporting Venezuelan illegals outside of the statutory due process of an immigration court. However, although the Trump critics are right, their outrage over it is as dishonest as is Trump’s declaration of an “invasion”, because…

Most of the Trump critics are disingenuous hypocrites

The invocation of laws to achieve ends that the laws themselves were never written to achieve is hardly a Trumpian innovation. Presidents have been exerting increasing executive power under dubious and abusive interpretations of the law for at least a century. Examples abound, but most recently, and most relevant to the topic of illegal immigration, was the Biden administration’s use of Temporary Protected Status as an illegal immigrant laundering operation. The Immigration Act of 1990 gave discretion to the president to grant TPS to foreign nationals inside the US whose home country was experiencing unsafe conditions due to armed conflict, a natural disaster, or other “temporary and extraordinary conditions”. The point of the law was to protect foreign nationals who were already inside the US whose visas were expiring from having to be repatriated back into a temporary, humanitarian disaster-like situation. But the Biden administration interpreted the “temporary and extraordinary conditions” clause to mean “governed in a way we don’t like”, and then not only granted TPS status to foreign nationals that were inside the US, but started literally importing illegals from some of those countries, and then “legalizing” their presence by subsequently granting them TPS too. And, from which country did Biden launder the most illegal aliens into the US via this TPS scheme? Strangely enough, it was Venezuela, the very same country from which came the gang members Trump is now trying to deport.

And where was the open borders crowd, which is now breaking out the fainting couches over Trump’s abuse of the Alien Enemies Act in order to repatriate Venezuelans, back when Biden was abusing the Immigration Act of 1990 in order to import those same Venezuelans into the country? No where to be seen. Not a peep was heard in complaint. Just like Trump, they don’t actually care about the abuse of the law as a matter of principle. They only care about achieving their ends in the most expedient way possible.

One side doesn’t care about honoring the law if it means keeping illegal immigrants out of the country, and the other side doesn’t care about honoring the law if it means keeping them in. And the fact that the law, combined with judicial rulings, create situations in which people with admittedly no legal basis to be in the country nevertheless somehow have a legal right to be in the country is Twilight Zone-esque. Like I said, everyone is a villain in this story. This whole thing is a mess, and everyone involved, from the Trump administration, to its critics, to the law itself, is condemnable.