Abrego Garcia and MS-13: What Do We Know?

In multiple filings, the government has conceded that it wrongfully removed Kilmar Armando Abrego Garcia from the United States to a notorious prison for terrorists in El Salvador on March 15. On April 7, accordingly, the U.S. Supreme Court ordered—with no recorded dissents—that the government “facilitate” his return.

But rather than try to right its wrong, the Trump administration has, for weeks, been resisting bringing him back and downplaying the gravity of its error. Both strategies have hinged on the administration’s dubious insistence that Abrego Garcia is a “verified” and “ranking” member of a violent Salvadoran gang, MS-13. It has also argued that he is a “terrorist,” in that, two months ago, Secretary of State Marco Rubio listed M-13 (Mara Salvatrucha) as a “designated foreign terrorist organization.”

Abrego Garcia is currently being held in El Salvador’s Centro del Confinamiento del Terrorismo (CECOT). U.S. District Judge James Boasberg, in a different case involving 137 Venezuelans whom the Trump administration sent to CECOT without due process, recently credited evidence that CECOT detainees were “highly likely to face immediate and intentional life-threatening harm at the hands of state actors.”

Abrego Garcia, who has no criminal record in the United States or anywhere else, denies the allegation of gang membership. On March 24, his attorneys filed suit in Greenbelt, Maryland, asking U.S. District Judge Paula Xinis to order him returned. He argued, as the government has since admitted, that his removal was illegal because an immigration judge had granted him “withholding of removal” to El Salvador due to his “well-founded fear of future persecution” there from a violent gang known as Barrio 18. His attorneys allege that CECOT houses members of that gang.

This article explores the source of the administration’s claim about Abrego Garcia’s membership in MS-13 and its credibility, both on its face and in the context of the other information known about this individual.

Kilmar Armando Abrego Garcia was born in the Los Nogales neighborhood of San Salvador on July 26, 1995, according to a declaration by his wife, Jennifer, submitted in the recent lawsuit, and facts found by Immigration Judge David M. Jones in October 2019. Jones’s 2019 ruling, barring Abrego Garcia’s removal to El Salvador due to a credible fear of persecution, was reached after two days of hearings during which Jones took testimony from Abrego Garcia and Jennifer. The first of those hearings, in September 2019, lasted about five hours, according to Jennifer. In his ruling, Jones assessed Abrego Garcia—the “respondent” in that hearing—to be telling the truth.

 [T]he Respondent provided credible responses to the questions asked. His testimony was internally consistent, externally consistent with his asylum application and other documents, and appeared free of embellishment. Further, he provided substantial documentation buttressing his claims. Included in this evidence were several affidavits from family members. ... The court finds the Respondent credible.

Abrego Garcia’s mother, Cecilia, ran a family business out of her home in San Salvador, according to Judge Jones’s narrative. She made pupusas—a Salvadoran stuffed tortilla dish. Kilmar and his brother, Cesar, would make deliveries to the business’s customers.

Pupuseria Cecilia, as the business was known, was sufficiently prosperous that a violent Salvadoran gang, Barrio 18, began extorting money from the family. The gang demanded monthly and, later, weekly payments, and threatened to harm Kilmar, rape his sisters, or kill Cesar if the family did not comply. The family paid.

Eventually, Barrio 18 tried to recruit Cesar as a member. It said the family could stop paying weekly tribute if it surrendered him to the gang. The family refused. On one occasion, gang members entered the family’s home and threatened to kill Cesar until Kilmar’s father paid the tribute money. Soon thereafter, the family sent Cesar to the United States.

After Cesar left, the gang began trying to recruit Kilmar. Members of Barrio 18 entered the family’s home and threatened to kill Kilmar unless “rent” was paid or Kilmar was turned over to the gang. The family paid the money. 

The family moved twice but could not shake the gang’s threats and demands. Even after Cecilia closed the business, Barrio 18 continued to threaten Kilmar, his sisters, and family. Finally, in around 2011, when he was about 16, Kilmar’s family sent him to the United States, too. Kilmar entered without inspection—in other words, illegally.

Abrego Garcia then made his way to Maryland, where his brother, Cesar—now a U.S. citizen—was living, according to a complaint filed recently by his current attorney, Simon Sandoval-Moshenberg. Maryland is the only state in which Kilmar has ever resided, according to the complaint. Abrego Garcia worked in the construction industry.

In around 2018, Abrego Garcia moved in with his then-girlfriend, Jennifer, a U.S. citizen, according to the declaration she filed in connection with Abrego Garcia’s recent legal troubles. She had two children by a prior relationship. Each has special needs: One has epilepsy and the other, autism. In late 2018, Jennifer became pregnant with a third child by Abrego Garcia. Due to a long-standing medical condition, it was a high-risk pregnancy. 

On March 28, 2019—during the first Trump administration—Abrego Garcia drove one of Jennifer’s children to the babysitter and the second to school, before dropping Jennifer at work. She was then five months pregnant. Abrego Garcia then drove to a Home Depot parking lot in Hyattsville, Maryland, to look for construction work, as he had several times before.

When Abrego Garcia failed to appear to pick up Jennifer after work, she texted him. There was no response, though the text was eventually marked “read” on her phone. At 9 p.m. that night, Jennifer learned from a friend that Abrego Garcia had been arrested. She called several jails but was unable to locate him. The next morning, he called her from U.S. Immigration and Customs Enforcement (ICE) custody. Jennifer found him a lawyer, Himedes Chicas, in hopes of getting bail for him. (Chicas did not return an email seeking an interview.) 

According to his recent complaint, here’s what happened to Abrego Garcia on March 28, 2019: At Home Depot, he joined three other young men looking for jobs. He recognized all three, though he’d never interacted with two of them before. At 2:27 p.m, a Hyattsville City Police officer approached them. Later, officers from the Prince George’s (County) Police Department arrived and handcuffed all four men.

At the station, the four were placed in different rooms. Per the complaint,

Abrego Garcia was asked if he was a gang member; when he told police he was not, they said that they did not believe him and repeatedly demanded that he provide information about other gang members. The police told Plaintiff Abrego Garcia that he would be released if he cooperated, but he repeatedly explained that he did not have any information to give because he did not know anything. 

Sometime thereafter, ICE officers arrived and took Abrego Garcia into federal immigration detention. The next day, ICE brought removal proceedings against him. The sole charge was under 8 U.S.C. § 1182(a)(6)(A)(i), which provides that “[a]n alien present in the United States without being admitted or paroled, or who arrives in the United States at any time or place other than as designated by the Attorney General, is inadmissible.” 

On April 24, 2019—after nearly a month in custody—Abrego Garcia was taken to his removal hearing before Immigration Judge Elizabeth A. Kessler. His then-attorney, Chicas, applied for his release on bail. ICE opposed the application, arguing that Abrego Garcia presented a danger to the community because local police had identified him as a “verified” active gang member.

“I attended his bond hearing,” Jennifer writes in her declaration, “and was shocked when the government said he should stay detained because Kilmar is an MS-13 gang member. Kilmar is not and has never been a gang member. I’m certain of that.”

The allegation appears to stem from two documents that were introduced before Judge Kessler: a federal I-213 form (Record of Deportable/Inadmissible Alien), filled out by ICE, and a form generated by the Prince George’s Police Department, called a Gang Field Interview Sheet (GFIS). The latter had been entered into the Prince George’s Police Department database at 6:47 p.m. on March 28, 2019—about four hours after police met Abrego Garcia for the first time—according to Abrego Garcia’s recent complaint.

The government has not introduced either the I-213 or GFIS form in its defense of Abrego Garcia’s recent legal proceedings. The descriptions of those documents provided here are based on characterizations of them provided by Kessler in her ruling and Abrego Garcia’s current attorney in his complaint.

Apparently relying on the assertions of the I-213 form, which, in turn, apparently relied on the assertions of the GFIS, Kessler wrote: “The Respondent was arrested in the company of other ranking gang members and was confirmed to be a ranking member of the MS-13 gang by a proven and reliable source.”

But Kessler—even while crediting the government’s claim of gang membership—acknowledged that the two documents were, in at least one respect, glaringly “at odds” with one another. The federal I-213 form claimed that Abrego Garcia had been detained “in connection with a murder investigation,” while the GFIS form said he and the others had been arrested because they were “loitering outside of a Home Depot,” as Kessler wrote.

Kessler found that both documents were admissible in immigration court, notwithstanding the objection of Abrego Garcia’s then-attorney, Chicas, who protested that he’d not been permitted to cross-examine the detective whose accusations seemed to underlie both.

Kessler then went on to find that Abrego Garcia had failed to meet his burden of showing that his release “would not pose a danger to others.” This was so, she wrote, because she found ICE’s accusation about his gang membership “trustworthy.” She continued:

Although the Court is reluctant to give evidentiary weight to the Respondent’s clothing as an indication of gang affiliation, the fact that a “past, proven, and reliable source of information” verified the Respondent’s gang membership, rank, and gang name is sufficient to support that the Respondent is a gang member, and the Respondent has failed to present evidence to rebut that assertion.

Kessler did not explain in her ruling what she meant about Abrego Garcia’s clothing. But Abrego Garcia’s recent  complaint, by attorney Sandoval-Moshenberg, fills in that eyebrow-raising detail—as well as several others:

The GFIS explained that the only reason to believe Plaintiff Abrego Garcia was a gang member was that he was wearing a Chicago Bulls hat and a hoodie; and that a confidential informant advised that he was an active member of MS-13 with the Westerns clique. ... 
According to the Department of Justice and the Suffolk County District Attorney’s Office, the “Westerns” clique operates in Brentwood, Long Island, in New York, a state that Plaintiff Abrego Garcia has never lived in. 

So the uncross-examined detective’s accusation came from an unidentified informant who was also, perforce, uncross-examined—a second layer of hearsay.

Abrego Garcia’s lawyer later tried to obtain more information about the allegations ICE had made at the bail hearing, according to the complaint. He discovered that the Prince George’s Police Department had no incident report for the arrest, and the Hyattsville City Police Department’s report mentioned only the other three men arrested—not Abrego Garcia.

Then the complaint adds yet another disturbing detail:

His attorney also contacted the [Prince George’s Police Department] Inspector General requesting to speak to the detective who authored the GFIS sheet, but was informed that the detective had been suspended. A request to speak to other officers in the Gang Unit was declined. 

In the recent Maryland federal court litigation, the government has not contested, through introduction of evidence, any of the specific accusations of Abrego Garcia’s complaint. It has only, in conclusory fashion, continued to cling to Judge Kessler’s finding that Abrego Garcia was an MS-13 member. (Kessler’s bond decision was later upheld on administrative appeal in a perfunctory  two-page opinion.)

Having been refused bail by Kessler, Abrego Garcia remained incarcerated at the Howard Detention Center in Jessup, Maryland. In June 2019, Jennifer and he got married, separated by a pane of glass. They passed rings to each other through an officer, according to Jennifer’s declaration.

By that time, Abrego Garcia had applied for asylum and similar forms of relief in an attempt to prevent his return to El Salvador, where he feared persecution by Barrio 18. (The attorney who filed that application, Lucia Curiel, did not return calls.) Although the asylum claim proved to be time-barred—aliens are required to bring such claims within a year of entering the country—in October 2019 Judge Jones did grant his request for “withholding of removal” based on his “well-founded” fear of persecution by Barrio 18. The government did not appeal, so Jones’s ruling is now final.

Shortly after he won “withholding of removal” status, Abrego Garcia was released to return home. Evidently, no one saw him as presenting any danger to the community anymore.

Since then, once a year, Abrego Garcia has “checked in” with immigration officials. This is the standard procedure required of individuals with his status—removable, but with removal “withheld” from their country of origin. Abrego Garcia’s last routine check-in occurred on Jan. 2 of this year, without incident.

For the past five years—until his recent abrupt removal to CECOT—Jennifer and Abrego Garcia had been living in Prince George’s County. Together they were now raising three children. The third—their first biological child together—had been born in August 2019. That child, now five, has special needs, too. He was born deaf in one ear and, as the parents later learned, has autism and is intellectually disabled.

Also during this period, according to the complaint, Abrego Garcia had become a union member. As of March 12, he was employed full time as a first-year sheet metal apprentice and was pursuing his vocational license at the University of Maryland.

But on that afternoon, while driving with his disabled five year old in the backseat, Abrego Garcia was pulled over by ICE officers, apparently without a warrant. (The government has presented none in court.) He was informed that his status had changed. ICE officers called Jennifer to tell her to pick up the child—informing her that they’d otherwise turn him over to child welfare authorities—and then took her husband away. ICE has subsequently acknowledged that Abrego Garcia was flown to CECOT on March 15 due to “administrative error.”

On April 7, the U.S. Supreme Court issued a per curiam order, with no recorded dissents, requiring the government to “facilitate [Abrego Garcia’s] return” and “share what it can concerning the steps it has taken and the prospect of further steps.”

So far, the Trump administration has defied the Court’s second command and has presented no evidence of compliance with the first.