An update on Kilmar Abrego Garcia

The innocent man sent by the US government to a foreign prison due to "administrative error"

This photo was provided by CASA, an immigrant advocacy organization.

Three weeks and one day ago, Kilmar Abrego Garcia was illegally deported from the US to El Salvador, where his head was shaven, he was put in a white prison uniform, and placed in a cell with more than a hundred other men — including, potentially, members of the gang who terrorized him and his family when he was a kid. The lights are always on in the cell, the bunks are four high, and prisoners spend 23.5 hours a day in the cell. They’re allowed a half hour outside of the cell each day for exercise or Bible study.

What did Kilmar do?

Nothing.

At least, the government hasn’t charged him with anything. They certainly haven’t provided any evidence of a crime of any kind. In fact, the government admitted in court that the deportation was an “administrative error.”

The government has gone on to suggest that he’s in a gang, according to a confidential informant who said that Kilmar was a member of the gang in New York, a state that Kilmar has never lived in. This has been the strongest vaguely evidential argument so far: supposed statements from a confidential informant — the actual statements have not been provided — AND — apparently Kilmar was wearing gang-related clothing: some Chicago Bulls merchandise. This is precisely the kind of thing everyone hates about gangs: wearing mainstream sports paraphernalia.

So, quick recap: this guy who has a full-time job, a wife, and three kids is also, on the side, in a gang in New York — oh, scratch that, this just in, he’s a LEADER in a gang in New York, oh wait, you don’t find that compelling? What I mean to say is that he’s involved in TRAFFICKING. And we know this because an anonymous source said it one time. No, we can’t show you exactly what he said, but trust us, and no, we can’t even show it privately to the judge or EVEN TO OUR OWN LAWYER. But don’t forget, we saw him wearing Chicago Bulls-related clothing.

This might shock you, but the judge overseeing this lawsuit — Judge Paula Xinis — did not find the argument “we promise he’s a criminal even though we have no evidence and in fact arrested and then deported him without a warrant or any charging document” very compelling.

Here are her exact words: “That's just chatter in my view. I haven't been given any evidence. In a court of law when someone is accused of membership in such a violent and predatory organization, it comes in the form of an indictment, a complaint, a criminal proceeding that then has robust process, so we can assess facts."

She likewise didn’t find the argument “you don’t even have jurisdiction over this because he’s in a foreign prison” compelling. In fact, she asked who was paying for his incarceration (the US government it turns out) and she said, basically, yeah, seems like if you’re the customer you can tell them to return one of YOUR prisoners. The US government still has him in custody.

Judge Xinis

The government’s lawyer, Erez Reuveni, asked her to hold off on the order and give the government one more chance to do the right thing. As he said, “I would ask the court to give us, the defendants, one more chance to do this. That’s my recommendation to my client, but so far that hasn’t happened.”

Erez Reuveni is, by the way, the Acting Deputy Director of the department’s Office of Immigration Litigation. He’s worked for the Department of Justice for almost 15 years. So he’s not some guy looking to cause trouble, even if he did seem embarrassed that the government gave him literally nothing to work with. No evidence. No paperwork. No (fact-based) answers as to why they can’t bring the clearly innocent Kilmar back to the US.

Reuveni also appeared frustrated by the Department of Justice’s lack of interest in providing, well, justice. But his previous work suggests he’s ready to go to bat for the federal government. He’s been praised, for instance, for his legal work going after “sanctuary cities” that the government sees as breaking federal law.

But let’s look at a couple of the exchanges.

Judge Xinis: “[W]hat basis is he held? Why is he [in CECOT] of all places?”

Mr. Reuveni: “I don’t know. That information has not been given to me. I don’t know.”

And this one:

Judge Xinis: Can we talk about, then, just very practically, why can’t the United States get Mr. Abrego Garcia back?

Mr. Reuveni: Your Honor, I will say, for the Court's awareness, that when this case landed on my desk, the first thing I did was ask my clients that very question. I’ve not received, to date, an answer that I find satisfactory.

Remember, there were basically two arguments. One, the judge doesn’t have jurisdiction, and two, this guy’s a gang member (sorry, we don’t have any evidence but thought we’d throw that out). So, you know, basically one argument: the judge has no jurisdiction.

As Mr. Reuveni himself said: “if you’re not buying our jurisdictional arguments, like, we’re done here . . . . We have nothing to say on the merits.”

THERE IS NO MERIT TO THIS CASE. We already admitted it was a mistake. Whoops, sorry. But maybe you don’t have jurisdiction? Not buying that? Yeah, well, that’s all we’ve got.

And look, this guy was given a terrible job. The US government had already ADMITTED THEY WERE WRONG and his job was to go out there and convince the judge, WE’RE WRONG BUT THAT DOESN’T MEAN WE HAVE TO FIX IT. Which is not just a terrible argument, it’s a really gross, immoral argument, too.

Anyway, since he was unable to make a defense out of executive preferences and vibes, the US government put Reuveni on paid leave and locked him out of his email and told him not to do any more work. They also put his boss, August Flentje on leave. Flentje is probably best known for defending the “travel ban” in the previous Trump administration, but not being able to get Reuveni to be dishonest about his feelings about this particular case in court was the last straw, I guess.

What are the next steps on the government side?

You might think they’d be gassing up a plane to obey the court and their good moral sense to go pick up the guy who they already admitted was accidentally and illegally sent to El Salvador.

But no, they filed an appeal to try to get out from under the judge’s decision.

Judge Xinis has already denied the appeal in a 22 page opinion, and it’s well worth your time to read the whole thing. She has much more detailed and interesting and careful arguments in response to the government assertions than what I’ve shared here.

She doesn’t mince words.

She says it’s “wholly lawless” what the government has done, and that it “shocks the conscience.”

At the moment I’m writing this, the US government has a little less than 24 hours to return Kilmar to US soil.

We’ve already seen that the government is willing to break the law and arrest, deport, and incarcerate an innocent person. I guess we’re about to see if the Justice Department is deserving of its own name.

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SOURCES:

Today’s opinion from the judge, denying the appeal (this is worth your time to read in its entirety).

A few general articles about the most recent situation:

From The Hill. Politico. NPR.

Reuveni praised for previous work with sanctuary city prosecution.

Erez Reuveni’s LinkedIn.

Flentje also on leave.

Our previous post on Kilmar: