Before the Trump administration finally returned Kilmar Abrego Garcia to the U.S. this month, officials kept claiming he belonged to the deadly MS-13 gang. Even if true, that wouldn’t have been a valid reason for the government to avoid compliance with a court order for his return after illegally sending him to El Salvador in March.
But in any event, it shouldn’t escape notice that a federal judge just picked apart the gang claim that the Justice Department has continued to push since his return.
That picking-apart came in Sunday’s ruling that rejected the DOJ’s bid to detain Abrego ahead of trial on criminal charges the government had waiting for him upon his return. He pleaded not guilty to allegations of illegally transporting undocumented immigrants. (U.S. Magistrate Judge Barbara Holmes’ opinion Sunday noted that his preferred surname is “Abrego,” after he has been consistently referred to in court documents and reports as “Abrego Garcia.”)
Abrego’s criminal charges don’t hinge on whether he’s a gang member. But the issue arose in Holmes’ detention ruling because the government argued that his alleged gang membership supported his detention. “The Government’s investigation has revealed that the defendant has a long history and association with MS-13,” prosecutors wrote ahead of a June 13 hearing.
But in her ruling following the hearing, Holmes said the government’s evidence of Abrego’s MS-13 membership “consists of general statements, all double hearsay, from two cooperating witnesses.” She said those statements, in turn, are contradicted by another witness who, the judge wrote, said that “in ten years of acquaintance with Abrego, there were no signs or markings, including tattoos, indicating that Abrego is an MS-13 member.” Given the conflicting evidence, the judge wrote, “the government’s evidence of Abrego’s alleged gang membership is simply insufficient.”
So, after months of the administration insisting on Abrego’s gang membership (again, not that it would excuse failing to return him as required by court order issued in April), there was a clear chance to prove it in court. The government failed to do so.
That doesn’t mean prosecutors won’t be able to prove their underlying criminal case against Abrego or that he can’t be legally deported in the future. It doesn’t even mean that Holmes’ release order will stand, given the government’s pending motion to halt it and keep him in criminal custody. And if he is released from criminal custody, the government has indicated it will seek to hold him in immigration custody. So Holmes’ ruling could wind up being an “academic exercise,” as she noted while emphasizing the importance of providing due process in the meantime. But the failure to support the MS-13 claim is indicative of an amateurishness that has marked the government’s conduct throughout this sordid affair. If it’s a sign of things to come, it could bode well for Abrego’s legal fight. Subscribe to the Deadline: Legal Newsletter for expert analysis on the top legal stories of the week, including updates from the Supreme Court and developments in the Trump administration’s legal cases.
Jordan Rubin is the Deadline: Legal Blog writer. He was a prosecutor for the New York County District Attorney’s Office in Manhattan and is the author of “Bizarro," a book about the secret war on synthetic drugs. Before he joined MS NOW, he was a legal reporter for Bloomberg Law.
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