I’ve previously posted on the absurd commentary of Salvadoran President Nayib Bukele and Secretary of State Marco Rubio at Tuesday’s Oval Office confab. Now, let’s turn to Attorney General Pam Bondi.
The AG insists that two “courts” — an immigration court and an appellate court — have “ruled” that Abrego Garcia was a member of MS-13. Bondi is new to the federal system but she has been in law enforcement long enough to know that her assertion is deeply misleading. It also departs from the Justice Department’s tradition of providing a complete version of facts — even facts that cut against the government’s position — because it’s the right thing to do and promotes DOJ’s credibility with the judiciary and the public.
Abrego Garcia has never been charged in any American case, federal or state, with being a member of MS-13. In fact, the court proceedings in connection with the administration’s illegal deportation of Abrego Garcia to El Salvador indicate that he has no known criminal record in any country. That doesn’t mean he is not an MS-13 member — he may well be. But it means the Justice Department hasn’t proved that he is.
Moreover, the “courts” to which Bondi referred are not judicial courts. They are executive branch immigration tribunals, components of the Justice Department that are subordinate to the attorney general. And the actual issue that those DOJ tribunals “ruled” on was bail, not gang membership.
In 2019, Abrego Garcia was detained for loitering. There is some indication that a murder probe may have had something to do with the loitering arrest. It’s entirely possible that Abrego Garcia is an MS-13 member and was hanging out with some MS-13 confederates, and that police used a legitimate loitering round-up as a pretext to investigate whether any of the arrestees were implicated in what police suspected was a gang-related homicide. Even if we reasonably assume that is so, however, it remains a stubborn fact that Abrego Garcia was never charged, much less convicted, in any homicide prosecution.
The roundup led to the discovery that he was in the country illegally and had been for about seven years. Being an illegal alien made Abrego Garcia subject to removal proceedings. (Memo to the Trump administration: when a suspect is subject to a removal proceeding, the government has to prevail in the proceeding before doing the removal. As we’ll see, the Trump DOJ lost the proceeding the first time around … and now it wants to skip the proceeding all together.)
Abrego Garcia sought to remain in the United States, claiming asylum and fear of persecution if returned to El Salvador. In that connection, he applied for release on bond. If the government followed immigration law, this would be an impossible hurdle for an illegal alien. As I’ve related a number of times, federal immigration law (Section 1225(b)(1)(B)(IV)) expressly mandates that an inadmissible alien “shall be detained” pending a final determination of his claim for asylum based on fear of persecution.
But the government doesn’t follow Congress’s law — nor did it do so in Trump’s first administration. That’s not because Trump wouldn’t have liked to follow it. It’s because (a) Congress provides laughably insufficient resources to detain illegal aliens while moving through the removal process; (b) in its 2001 ruling in Zadvydas v. Davis, the Supreme Court’s then-dominant progressives manufactured a right of aliens, though here illegally, to be released on bail if the government fails to deport them within 90 days after removal is ordered; and (c) the government is often inefficient in either getting an alien’s country to take him back or finding another country willing to take him in.
That said, because it is at least ostensibly against the law to release an illegal alien on bond, and because Abrego Garcia was not eligible for asylum (such claims must be filed within a year of entering the country), an immigration judge probably would not have needed much evidence to rationalize denying a bail motion.
This brings us to what Bondi disingenuously describes as the “court rulings” that Abrego Garcia was a member of MS-13.
In connection with his removal proceedings, Abrego Garcia had a bail hearing before a DOJ immigration judge. It was there that the government disclosed that an informant had said Abrego Garcia was an MS-13 member. As is customary in bail proceedings, the government neither identified nor produced the informant for testimony. The DOJ judge wrote that “the evidence shows that [Abrego Garcia] is a verified member of MS-13.” In this context, “verified” meant nothing more than that an unidentified informant, for whom the government vouched but whom the alien did not get to cross-examine, told the government he was an MS-13 member.
Because the government offered nothing more than this hearsay claim, the DOJ immigration judge, in straining for corroboration, was reduced to theorizing that Abrego-Garcia’s “clothing” could be “an indication of gang affiliation” – although the DOJ judge conceded he was “reluctant to give evidentiary weight” to such a dubious consideration. (In the recent federal court proceedings, Judge Paula Xinis described the clothing evidence as “nothing more than his Chicago Bulls hat and hoodie.”)
As Bondi presumably knows, the issue at a bond hearing is not whether the detainee is a member of a criminal organization. The issue is whether there is any condition or combination of conditions that will satisfy the court that, if released, the detainee will neither flee nor pose a danger to the community.
At the hearing, and then on appeal, the DOJ immigration tribunals accepted the government’s evidence for the purpose of determining that Abrego Garcia’s release could pose a danger. But this was not a conclusive finding that he was a member of MS-13 — it was not the kind of finding that occurs at a trial, under a stringent burden of proof and with the accused permitted to cross-examine witnesses. It was simply a finding that an illegal alien, who had no right to be in the U.S. in the first place, should not be released pending disposition of his asylum claim.
This sort of thing happens all the time in Justice Department prosecutions. When a person is accused of a serious crime, the government seeks pretrial detention. At the bail hearing, the DOJ presents hearsay information about the defendant’s criminal record and the charges in the case, which may include membership in a criminal organization. If the judge denies bail, that doesn’t mean the government has conclusively established that the accused is a member of the criminal organization. It just means the judge has found he should not be released pending trial. It’s a bail ruling, not a finding that the person is guilty. And if the defendant is a flight risk — as illegal aliens are because they have ties to another country — judges tend not to be as demanding on the “pose a danger” part of the bail question.
Besides misrepresenting the bail ruling as if it were a criminal conviction on some MS-13 related crime, the attorney general omitted all inconvenient facts.
Let’s start with the DOJ immigration court. Eventually in the removal proceeding, another DOJ immigration judge denied Abrego Garcia’s time-barred asylum claim; but the judge granted the alien withholding of removal to El Salvador, crediting his claim of fear of persecution. Do you think his story was self-serving and unsubstantiated? I sure do … but it was accepted by a DOJ immigration judge.
The second DOJ immigration judge’s fear of persecution ruling was more significant than the first DOJ immigration judge’s finding of MS-13 membership. This was not a mere bail decision; it was the final ruling on the merits of the removal proceeding. It was the rationale for the withholding of removal ruling that made it illegal for Abrego Garcia to be deported to El Salvador. (And remember: Because he was still removable, the Trump administration could have deported him to another country, just not to El Salvador.)
And there’s more. The first Trump administration could have appealed the immigration judge’s 2019 decision. It failed to do so, which means the withholding of removal has binding effect. Not just that. Following the second DOJ immigration judge’s prohibition on deportation to El Salvador, Abrego Garcia was released and given a permit to work. There is no indication that the first Trump administration objected to or appealed that ruling. I give the administration the benefit of the doubt that it may have tried but couldn’t find another country willing to take Abrego Garcia, and that the Zadvydas 90-day limitation on detention to carry out removal is what led to the illegal alien’s release. Still, if the administration truly believed Abrego Garcia was an MS-13 member — a “prominent” MS-13 terrorist, Trump officials now tell us — the failure to appeal is a peculiar default.
Bondi mentions none of this history.
Finally, when the matter did get to the judicial courts after the second Trump administration illegally deported Abrego Garcia to El Salvador, federal Judge Paula Xinis not only dismissed the 2019 information connecting Abrego Garcia to MS-13 as weak; she further noted that the Trump administration had not presented any new evidence, from the ensuing six years, in any way tying the alien to MS-13 activities. That’s a strange gap in the evidence, given that the Trump administration (a) has been scrutinizing MS-13 closely, to the point of designating it as a foreign terrorist organization; (b) has a close relationship with President Bukele’s regime which has gathered prodigious amounts of intelligence on gangs, such as MS-13; (c) has been willing to share what it maintains is credible informant information about Abrego Garcia in prior removal proceedings; and (d) has even pushed out allegations about domestic abuse (disturbing, but still, no gang crime allegations, much less criminal convictions) — meaning it realizes the lack of MS-13 evidence from the last six years is problematic.
And by the way, on Wednesday, Bondi publicly released the informant claims introduced in the 2019 removal hearing, alleging that Abrego Garcia had a rank (chequeo, Spanish for “check-up”) and street name (“Chele”) in MS-13. It made me wonder if the attorney general had ever heard about the time the DOJ described its evidence in an indictment and then proved it in a criminal trial in which the defendant had due process rights to challenge it. Maybe not.
In any event, in claiming that immigration “courts” looked at this evidence and “ruled” that Abrego Garcia was an MS-13 member, Bondi skips by the stubborn fact that two actual judicial courts, presided over by actual Article III judges, looked at the same evidence and discounted it — both because it is weak and because it was offered in connection with bail, not with a formal allegation that Abrego Garia was an MS-13 member.
Judge Xinis’s ruling that the Trump administration was required to facilitate Abrego Garcia’s return from El Salvador was unanimously affirmed by a three-judge panel of the Fourth Circuit Court of Appeals. Like Judge Xinis, that high ranking judicial court rejected the government’s claim that Abrego Garcia is a “prominent” member of MS-13. Agreeing with Judge Xinis, the Fourth Circuit panel noted that back in 2019,
the Government’s “evidence” of any connection between Abrego Garcia and MS-13 was thin, to say the least. The Government’s claim was based on (1) Abrego Garcia “wearing a Chicago Bulls hat and hoodie,” and (2) “a vague, uncorroborated allegation from a confidential informant claiming he belonged to MS-13’s ‘Western’ clique in New York—a place he has never lived.”
The panel added, “Whatever the merits of the 2019 determination of the Immigration Judge (‘IJ’) regarding Abrego Garcia’s connection to MS-13, the Government presented ‘no evidence’ to [Judge Xinis] to ‘connect Abrego Garcia to MS-13 or any other criminal organization.’” (Quoting Judge Xinis; other brackets omitted.) The panel further observed that the record before the court “shows that Abrego Garcia has no criminal history, in this country or anywhere else,” and that “[t]ellingly,” the Justice Department had “abandoned its position that Abrego Garcia was a danger to the community at the hearing before [Judge Xinis].”
In her Oval Office commentary for the media, Bondi disclosed none of this.
Finally, while Abrego Garcia was reportedly detained in the notorious CECOT terrorism mega-prison upon initially being illegally deported to El Salvador, he was depicted at liberty in that country earlier this week — “miraculously risen from the ‘death camps’” and “sipping margaritas” in the “tropical paradise” with Democratic Senator Chris Van Hollen of Maryland, according to a social media post by President Bukele, who is delighting in the American turmoil. If Abrego Garcia is a proven MS-13 terrorist, as Bukele, Bondi, and various other Trump officials have said, how very strange to find him free to walk streets controlled by a regime known as an anti-terrorist scourge.
To summarize, then, the two immigration tribunals cited by AG Bondi are not judicial courts and did not rule that Abrego Garcia was a member of MS-13; they held that he should be denied bond while his asylum claim was pending. No judicial court has ever adopted the tribunals’ reasoning, in 2019, that the government’s scant evidence proves MS-13 membership. In fact, the final DOJ immigration judge to act on the matter granted Abrego Garcia withholding of removal to El Salvador in 2019, and the illegal alien was then released to live and work in Maryland — with no apparent objection or appeal by the first Trump administration.
Six years later, when two actual judicial courts became involved in Abrego Garcia’s case because the Trump administration — as it has admitted in court — illegally deported him to El Salvador, both of these courts dismissed the MS-13 evidence as weak and noted that the Trump Justice Department itself had abandoned a claim the Abrego Garcia was a danger to the community. Meantime, although there is a process in immigration law for an attorney general to attempt to reopen and reverse a longstanding withholding of removal order, there is no public record of AG Bondi’s availing herself of it in Abrego Garcia’s case — and it’s not like she’s shy about speaking to the media.
That’s the record.