Rishi Oza
By Rishi P. Oza
By all accounts, the Trump Administration has intentionally pushed the bounds of the powers of the Executive Branch. As we inch closer to the completion of the President’s first 100 days in office, the recent removal of Kilmar Abrego Garcia stands as a troubling juncture in the President’s observation of the rule of law. For purposes of background, Abrego Garcia is an El Salvadorian citizen who entered the United States unlawfully in 2011 at the age of 16. After being placed in removal proceedings, he requested and was granted Withholding of Removal, a type of relief that legally prevented the United States from removing Abrego Garcia to any country identified by the Immigration Judge.
In this case, the United States was expressly and specifically forbidden from removing him to El Salvador, on the grounds that he would be subjected to persecution by the government. Withholding of Removal is a difficult form of relief to obtain statistically speaking and requires an applicant to show that he is “more likely than not” to face persecution if returned to his home country.
A review of his immigration court history shows that the government did not contest the Abrego Garcia’s approval to a higher appeals court, meaning that when granted, the government believed the Court’s decision to have merit.
Despite this decision, on March 15, 2025, Abrego Garcia was removed from the United States to El Salvador, the one country specifically prohibited by the 2019 order of the Immigration Judge. In its own briefings, the United States “concedes that removal [of Mr. Abrego Garcia] to El Salvador was an administrative error.”
The Administration alleges that he was a member of the feared MS-13 gang; as widely disseminated through media reports, Abrego Garcia’s purported gang membership appears to be predicated on the fact that “he was wearing a Chicago Bulls hat and a hoodie” and “a confidential informant advised that he was an active member of MS-13 with the Westerns clique.”
Despite having never being accused of a crime, he was unceremoniously removed from the United States to El Salvador.
His removal set off a chain of court battles, which ultimately culminated in a decision from the United States Supreme Court mandating that the “the Government to ‘facilitate’ Abrego Garcia’s release from custody in El Salvador and [ensure] that his case is handled as it would have been had he not been improperly sent to El Salvador.”
Sadly, this has not happened and instead, the Trump Administration has doubled down on its assertion that Abrego Garcia’s removal was just and proper.
The government’s position on this matter is troubling for a number of reasons. Foremost, it directly contradicts the ruling of the 2019 Immigration Judge’s order finding that Abrego Garcia was “more likely than not” to be subject to persecution should he be returned to El Salvador. Had the government asserted that the country conditions had changed or that he was now somehow ineligible for a grant of Withholding of Removal, the government could have easily filed a Motion to Reopen his previous removal proceedings and made its arguments in support of his removal.
Doing so would have provided Abrego Garcia with notice and the opportunity to challenge the government’s assertions. In short, he would have been provided with due process and the opportunity to review the government’s evidence and challenge it in open court. The American system of jurisprudence is founded on evidence and not assertions – any client of mine will have likely heard me say “it’s not what we say, it’s what we can prove” at least once during our discussions and until now, I have believed this mantra to be true.
The government’s summary removal of Abrego Garcia, without due process, makes clear that an all-powerful Executive Branch does not believe it needs to prove anything; simply saying he is a gang member makes him so.
The government’s refusal to meaningfully engage El Salvador in seeking his return is also problematic. The Administration has argued that the US cannot simply demand El Salvador to return Abrego Garcia to the United States; while factually accurate, given El Salvador’s willingness to assist the Trump Administration in deportation efforts, a reasonable observer would likely conclude that the Administration, if motivated, could easily facilitate his return.
However, a recently televised interview between President Trump and El Salvador’s President Nayib Bukele made clear that the Trump Administration had little appetite to push for Abrego Garcia’s return, despite the order of the Supreme Court.
In fact, Administration officials went so far as to laud his removal, claiming that their actions were in full observance of law. Watching Secretary of State Marco Rubio denigrate the authority of the Supreme Court reinforces what Justice Sonia Sotomayor feared: “The Government’s argument, moreover, implies that it could deport and incarcerate any person, including U. S. citizens, without legal consequence, so long as it does so before a court can intervene.”
Given the Trump Administration’s candid refusal to intervene, this seems to be exactly what has transpired.
Finally, and while cognizant of our current environment of constant hyperbole, the actions of the Administration are a grave offense to the idea of rule of law. The United States has built itself as a country of laws and not of individuals. The idea that the nation’s laws are applied equally regardless of an individual’s background, race or creed are foundational concepts to America’s system of jurisprudence. The Administration’s willingness to defy an order from the Immigration Court from 2019, as well as the United States Supreme Court in 2025, is a step towards the dangers of a banana republic (again, apologies for sounding alarmist). However, when a singular branch of government acts without restraint, the other branches of government are charged with ensuring balance.
Congress has sadly abdicated its oversight role and the Courts have no mechanism for enforcement of their orders, as they have no police or military force. Our foundational system of governance relies upon a common observance of the limitations of power, a sad fact apparently lost on today’s Executive Branch. Abrego Garcia’s removal makes clear that the Trump Administration is willing to defy such limits, creating a slippery slope for future actions by this Administration and beyond.
The assertion that Abrego Garcia is a gang member provides the Administration with an easy narrative justifying his removal, but wouldn’t we all want the ability to defend ourselves if charged with a similar accusation? Years ago, I represented a man that was mistakenly arrested for murder in a Las Vegas casino.
After agonizing and contentious arguments with DHS, the agency conceded that his simply shared the same name as the actual criminal; however, he had been branded a “criminal” nonetheless due to his arrest. Should this alone be sufficient to be deported from the United States?
Should Abrego Garcia (or the public) be permitted to see what evidence the US government is using to effectuate his separation from his wife and children? Americans have historically distrusted government, a concept that traces back to the nation’s founding.
President Trump has repeatedly denigrated government employees as members of the “Deep State” or the “DC Swamp” and while his reasoning has often been dubious, his distrust of government is reinforced by Garcia Abrego’s swift removal.
Had the government reopened his 2019 case and proven his ties to a criminal gang, then this commentator would certainly have not lamented his removal. However, precisely because the government chose not to do so and simply asks us to believe what it tells us is where things break down – it is not what we say, but what we can prove and so far, the Trump Administration has said a lot, but not proven much and we cannot and should not accept that as good enough from our government.
Rishi P. Oza is Partner at Brown Immigration Law, a firm that focuses solely on immigration law; he practices in Durham. Contact: [email protected]
