The administration created a problem for itself and caused a controversy. The Fourth Circuit pointed to a rather simple way to fix it.

Rich has a great column today on how Kilmar Abrego Garcia gamed our immigration system. The Salvadoran national was not alone in this. He was helped by an immigration judge and progressive activists forever pushing for concessions to illegal aliens.

Abrego Garcia sought withholding of removal to his native country (i.e., a legal prohibition on being repatriated) on the ground that he had a fear of persecution. Withholding of removal relief is really geared toward protecting aliens from regimes that persecute based on racism, religious belief, or political views (e.g., opposition to communism).

Yet, no matter how modest and sensible such protections appear to be, open-borders advocates always try to expand them to cover more aliens. So, during the Carter era, in the Refugee Act of 1980, the prohibition against deportation was expanded to include “membership in a particular social group” as well as “nationality.”

As Rich illustrates, the “social group” category is endlessly elastic. If you combine pro-immigration activists who seek to treat a troubled country’s mundane crime problems as “persecution” of “particular social groups,” and you have immigration judges of like mind (and remember, immigration “judges” are not Article III judges; they’re Justice Department officials, and they are likely to be pro-amnesty in Democratic administrations), then you get ludicrous results such as the one in Abrego Garcia’s case: His family was essentially deemed a “social group” that was under threat of persecution in 2019, even though by then the family pupusa business of Abrego Garcia’s mother, which was said to be the motive for the persecution by the Barrio 18 gang, no longer existed, and Abrego Garcia was no longer a child working for his mother.

Rich is right that Congress should eliminate the “particular social group” category. I would go beyond that and impose non-individualized limitations on asylum and withholding of removal, emphasizing that they are discretionary acts of national charity, not entitlements for which aliens must be permitted to apply regardless of country conditions. It is not reasonable to expect that a country in which 20 million illegal aliens are stressing state and local resources — and whose citizens are demanding that government address these problems — be as open to taking in still more aliens as one whose illegal immigration problem is small and manageable.

Rich also correctly says that the incumbent Trump administration “shouldn’t have blown by the immigration judge’s 2019 ruling” that Abrego Garcia could not be deported to El Salvador. I would add two things on that point.

First, the problem begins not with the incumbent Trump administration but with the administration in Trump’s first term. It failed to appeal the immigration judge’s 2019 ruling. As Rich details, the ruling was factually flawed; especially if the administration truly believed Abrego Garcia was an MS-13 member (a position it took in opposing the alien’s bail motion at the time), it should have appealed to the Board of Immigration Appeals and to the appropriate circuit court (an actual judicial court of appeals) if it did not get satisfaction from the BIA. Instead, the Trump-45 DOJ allowed the immigration judge’s ill-conceived ruling to stand.

Second, and of more moment, the remedy of withholding of removal is supposed to be temporary relief; it is not license to remain in the United States permanently, particularly if conditions change. On that score, I would highlight a portion of last week’s Fourth Circuit opinion by Judge J. Harvie Wilkinson, the duly esteemed conservative judge who wrote for a unanimous three-judge panel in rebuffing the Trump administration’s attempt to prevent the lower court (Judge Paula Xinis) from inquiring further into its actions in Abrego Garcia’s case. (See Ed Whelan’s Bench Memos post.) All of Judge Wilkinson’s eloquent seven-page opinion is worth your time; relevant to what we’re discussing here, though, he wrote:

The government asserts that Abrego Garcia is a terrorist and a member of MS-13. Perhaps, but perhaps not. Regardless, 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. See 8 C.F.R. § 208.24(f) (requiring that the government prove “by a preponderance of evidence” that the alien is no longer entitled to a withholding of removal). [Emphasis added.]

Bear in mind, withholding of removal did not mean that Abrego Garcia could not be deported. To the contrary, he was (and would be if returned to the U.S.) a removable illegal alien; he just may not be removed to El Salvador as long as the 2019 order stands. But should that order still be standing?

I have observed several times that there is an immigration-law process by which the attorney general may attempt to reverse a withholding of removal order — even if, as here, the time to appeal lapsed six years ago. Here, there are abundant reasons for doing so. Not only was the factual basis on which the original order was granted dubious; now, as Rich observes, “El Salvador’s President Nayib Bukele has utterly demolished Barrio 18” — the gang that Abrego Garcia in 2019 claimed would persecute him over the family pupusa business. Since the factual premises for the withholding of removal order no longer exist, the order should be terminated.

The immigration-law regulation cited by Judge Wilkinson, Section 208.24(f), states in pertinent part:

Termination . . . withholding of deportation or removal[:] An immigration judge or the Board of Immigration Appeals may reopen a case . . . for the purpose of terminating . . . a withholding of deportation or removal. In such a reopened proceeding, the Service must establish, by a preponderance of evidence, one or more of the grounds set forth in paragraphs (a) or (b) of this section.

Under those two paragraphs, the grounds for terminating withholding of removal include:

The alien is no longer entitled to withholding of deportation or removal because, owing to a fundamental change in circumstances relating to the original claim, the alien’s life or freedom no longer would be threatened on account of race, religion, nationality, membership in a particular social group, or political opinion in the country from which deportation or removal was withheld. [Emphasis added.]

Obviously, even if the “particular social group” ground is not repealed by Congress as it should be, it should no longer be operative in Abrego Garcia’s case since the Barrio 18 gang is in no position to persecute social groups.

The grounds for termination of a withholding of removal order also include: “a showing of fraud in the alien’s application such that he or she was not eligible for withholding of removal at the time it was granted.” I don’t know if the Justice Department can establish fraud, but it could try, on the rationale that Abrego Garcia’s story was bogus. In any event, this would be a fallback position; the main point is that circumstances have changed.

I remain puzzled as to why Attorney General Bondi has not gone this route, especially now that Judge Wilkinson and the Fourth Circuit have essentially drawn her a road map on how to do it. Perhaps it is the Trump administration’s doctrinaire hostility to due process for aliens it deems removable — a position staked out in a post by Vice President JD Vance, which I addressed on Saturday. The provision to which Judge Wilkinson refers (under its subsection (c), which outlines “procedure”) requires the alien to be given 30 days’ notice of the government’s attempt to terminate withholding of removal and be given an opportunity to present countervailing evidence.

The administration takes the position that if it is required to provide due process in every case, it will never be able to meaningfully reduce the illegal-immigrant population. That is nonsense on stilts, but even if it weren’t, due process is the law that the president is obliged to faithfully execute.

Moreover, even if there were merit to the administration’s overarching determination to skirt due process for illegal aliens as a class, it makes no sense to skirt due process for Abrego Garcia as an individual. Forget the other 20 million cases. Abrego Garcia is an alien as to whom the administration violated the law, which has caused a significant controversy. Since it’s a problem of the administration’s own making, and it may be fixed without too much difficulty by following the procedure for undoing a withholding of removal order (a procedure that would not require proving that Abrego Garcia is an MS-13 member), why not do that and end an unforced error that is damaging the Trump administration’s credibility with the courts?