One of the most egregious of the deportations since President Trump resumed office was the deportation of Kilmar Abrego Garcia. Apparently, as gleened from press accounts, Abrego Garcia entered the United States without inspection in 2011 fleeing gang violence in his native El Salvador. He was encountered and detained by Immigration and Customs Enforcement in 2019 and was granted Withholding of Removal by an immigration judge. He was not able to win asylum because of a rule that an asylum application must be filed within one year of entry into the United States (for those who enter without inspection). INA § 208(a)(2)(B).
Unexplained is how Abrego Garcia was eligible for asylum or withholding based on fear of gangs given judicial hostility to finding gang claims as cognizable under the immigration laws as I once discussed here.
The Withholding of Removal relief, found at INA § 243(b)(3), states that the Attorney General may not remove an alien to a country if the Attorney General decides that the alien’s life or freedom would be threatened in that country because of the alien’s race, religion, nationality, membership in a particular social group, or political opinion.
The withholding order meant that Abrego Garcia was ordered removed but could not be removed to the United States. Deporting him to any one of 193 other countries in the world was permissible, but the whippersnappers at ICE chose to remove him to the one country they could not legally deport him to. Oopsie.
If the United States government legally wanted to deport Abrego Garcia to El Salvador, it should have filed a motion to reopen his removal proceeding. The motion to reopen statute is very generous in the asylum context, allowing for unlimited motions to reopen “based on changed country conditions arising in the country of nationality or the country to which removal has been ordered.” Motions to reopen in most other contexts are time (within 90 days of a decision) and numerically (1) bound.
Abrego Garcia is granted Withholding of Removal in 2019 based on gang issues. Since 2019, have there been changed country conditions arising in the country of nationality or the country to which removal has been ordered? You betcha. On March 27, 2022, El Salvador began its State of Exception, its War Against the Gangs.
Murder rates have dropped eighty percent and more than a hundred thousand suspected gang members, Abrego Garcia’s nemeses, are imprisoned. It seems like a no-brainer that Abrego Garcia’s case should be reopened and the withholding order vacated. A simple syllogism: Abrego Garcia cannot return to El Salvador because of gangs. Gangs are no longer a danger in El Salvador. Abrego Garcia can return to El Salvador. QED.
But wait, are you saying that it is safe for Abrego Garcia in El Salvador? We’ve seen the Attorney General in front of a cell of Abrego Garcia’s prison when she was there and it certainly seems like a threat to his life [possibly] or freedom [definitely]. It may be for a different reason – suspected of being a gang member by the government – but still a basis for withholding of removal.
As an aside, suppose the President relents and they bring Abrego Garcia back. Then, the government files its motion to reopen proceedings to strip him of Withholding. Now, Mr. Abrego Garcia is again in immigration court which is renewing its adjudication of his initial application for asylum and Withholding of Removal. However, Mr. Abrego Garcia is now seeking adjudication of his initial application within one year of entry to the United States. Thus, it appears, he could ask for asylum, much easier to win than Withholding.
That’s where the Board of Immigration Appeals comes. In the midst of the Abrego Garcia drama and the possibility of adjudication of his Asylum and Withholding claim under the backdrop of the prison conditions in El Salvador, in what may be one of the greatest coincidences of history since Aldo Raine and Shoshanna Dreyfus killed Hitler on the same day, the Board of Immigration Appeals came out, on April 24, 2025, with Matter of A-A-R-.
The gist of A-A-R- (which is about granting relief under the U.N. Convention Against Torture, a form of relief related to asylum and Withholding of Removal) is that just because there are tens of thousands of suspected gang members in prison in El Salvador (no mention of the fact that they are imprisoned based on suspicions, not convictions) in dire conditions of over-crowding, unsanitariness, and lack of food, with hundreds of deaths, substantial numbers of reports of physical violence, this anecdotal evidence is not proof that bad things would happen to the non-citizen in A-A-R-. To put it as obliquely as possible, it takes a real “Can Do” spirit for a jurist to sign on to a decision like Matter of A-A-R-. A good thing is that after Loper Bright Enterprises v. Raimondo no one needs to care what the BIA thinks.
Should Matter of A-A-R- be embraced, it could be a big support in the government’s desire to return Abrego Garcia back, at least anecdotally, to hell. Posted April 27, 2025.