The Trump administration admitted it accidentally deported a Maryland father with protected status to a notorious Salvadoran mega prison, but officials are refusing to bring him home—and the government claims the courts can’t make them.
Kilmar Abrego Garcia was one of 250 men deported to El Salvador’s CECOT terrorism center after President Donald Trump invoked the Alien Enemies Act of 1798. Despite a judge’s order halting deportations, the administration sent two planeloads of Venezuelans and a separate group of Salvadorans on March 15.
After fleeing gang violence in his native El Salvador when he was 16, Abrego Garcia joined his brother in Maryland, where he met his wife, who is an American citizen, according to a complaint he filed with his family. They share a 5-year-old son who is disabled, and Abrego Garcia was working full-time as a sheet metal apprentice when he was deported, the document says, adding that he doesn’t have a criminal record.
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“Although [Immigration and Customs Enforcement] was aware of his protection from removal to El Salvador, Abrego Garcia was removed to El Salvador because of an administrative error,” the government admitted in response to Abrego Garcia’s complaint.
The government nevertheless argued in its filing that the court can’t order officials to bring Abrego Garcia home because he’s not in U.S. custody. The Trump administration is paying El Salvador to jail him, but the U.S. can’t force El Salvador to return the jailed men, the government claims.
It can only “entreat” or “cajole” its “close ally,” according to the filing.
“They claim that the court is powerless to order any relief,” Abrego Garcia’s attorney, Simon Sandoval-Moshenberg, told The Atlantic. “If that’s true, the immigration laws are meaningless—all of them—because the government can deport whoever they want, wherever they want, whenever they want, and no court can do anything about it once it’s done.”
Officials at ICE and the Department of Homeland Security did not respond to the magazine’s request for comment.
It’s unclear under what legal authority the government deported Abrego Garcia. The Alien Enemies Act gives the president sweeping powers to deport both documented and undocumented immigrants—but only when the U.S. is at war with a foreign government.
Trump has argued that the Venezuelan gang Tren de Aragua has “invaded” the U.S., but a federal judge has temporarily blocked the deportations, saying the U.S. is not actually at war. Either way, Abrego Garcia isn’t Venezuelan—he’s Salvadoran. Even if the courts ultimately uphold Trump’s invocation of the Alien Enemies Act with regard to Venezuela, the government’s own filing calls El Salvador a “close ally.”
Despite the error, administration officials have doubled down on the deportation.
Asked for comment on the social media platform X, Vice President JD Vance wrote in a post: “My comment is that according to the court document you apparently didn’t read he was a convicted MS-13 gang member with no legal right to be here.”
The government’s own filing suggests the opposite. A confidential informant told police in 2019 that Abrego Garcia was an active member of MS-13, but a judge nevertheless granted him protected status and allowed him to stay in the U.S., it says.
Abrego Garcia’s complaint lays out the facts even more explicitly. In 2019, he and three other men he’d just met were chatting outside a Home Depot and looking for work, the filing says. They were taken into custody, and Abrego Garcia was brought to the police station and questioned about gang activity. After he insisted he didn’t know anything, he was turned over to ICE and issued a deportation notice, the complaint says.
During his deportation proceeding, ICE officials said a confidential informant who was a “past, proven, and reliable source of information” had confirmed Abrego Garcia’s gang membership, rank and gang name to the police. Based on that evidence, a judge ordered that he be held without bond during the hearings.
Abrego Garcia hadn’t been named in a police report about the Home Depot incident, and the informant accused him of being in an MS-13 clique that didn’t even operate in Maryland, according to his complaint. The detective who originally classified his police interview as a gang interview had been suspended, and nobody else from the gang unit stepped forward to answer questions about the case.
Although he had entered the country illegally, he applied for asylum and was granted a “withholding of removal” order, a legal form of protection that says the government won’t deport someone to their home country if the person is “more likely than not” to face persecution there.
When a Politico reporter pushed back on Vance’s inaccurate post on X, the vice president backed off the word “convicted” but still tried to claim: “An immigration judge during the Biden admin determined he was was a member of the MS-13 gang.”
“Is this an April fools joke? 2019 was not the Biden administration. It was the Trump administration. And the very thing you are quote tweeting mentions the MS-13 connection,” Politico reporter Kyle Cheney shot back.
Vance later posted to say he’d edited his original post to acknowledge that Trump, not Biden, was the president in 2019.
Despite the protective order, on March 12, Abrego Garcia had just picked up his son from the boy’s grandmother’s house after his shift when ICE officers pulled him over and said his immigration status had changed. They arrested him and called his wife, Jennifer Stefania Vasquez Sura. Once she arrived to get their son, he was taken away without explanation.
Three days later, he was deported to CECOT.
According to their filing, Vasquez Sura hasn’t had any contact with her husband since he was sent to El Salvador. She only received confirmation he was there when she saw a press photo of the inmates with their heads bowed and recognized his tattoos and two scars on his head.
The government’s lawyers claim in their filing that even if Abrego Garcia is being wrongfully imprisoned, he hasn’t suffered irreparable harm.
A 2023 State Department report found credible reports that inmates in El Salvador had been electrocuted, tortured, and beaten to death.
Responding to Abrego Garcia’s case, Eric Muller, a professor at the University of North Carolina School of Law who is an expert in World War II internment and the Alien Enemies Act, wrote in a post on the social media platform Bluesky that the last time the government invoked the Alien Enemies Act in the early 1940s, officials at least gave each arrested person a hearing.
“To, y’know, avoid exactly this kind of f--- up,” he wrote.
And Abrego Garcia wasn’t the only one.
At least one alleged Venezuelan “gang member” had already been granted legal refugee status in the U.S., while others included a pro soccer player, a gay makeup artist, a 26-year-old barber, and a 24-year-old father—all with no criminal records in the U.S. and all formally seeking asylum.
