A High Stakes Game of Chicken
- Vos126
- Apr 17
- 8 min read
On March 12th, 2025, Kilmar Abrego Garcia was pulled over by police outside of an Ikea in Maryland while driving with his son. ICE agents called Garcia's wife to collect her son within 10 minutes, or he would go into protective custody. The police took Garcia to a detention facility in Texas where they pressed him about being an MS-13 gang member. The Salvadorian immigrant vehemently denied being part of a gang. Gangs had threatened him and his family constantly back in El Salvador, and he wanted nothing to do with them. His immigration status even protected him from deportation due to the threats of gang violence to him if he returned to his home country. Despite this on March 15th, Abrego Garcia was loaded up with several other accused gang members onto a plane and flown nearly 2,000 miles away to El Salvador. Garcia and the other detainees were lined up and taken to the infamous CECOT prison, called the Terrorism Confinement Center. ICE has since admitted that his deportation was a "administrative error." Garcia's wife & family were stunned at the speed and suddenness of the deportation. Surely, this had been some kind of mistake. He has to be brought back. However, now the life of this one man, a father of three American children, has become a pawn in a constitutional chicken fight that has major implications.
Who is Kilmar Abrego Garcia?
According to his family, Garcia is a refugee fleeing from gang violence in his home country of El Salvador. Kilmar grew up in the capital city of San Salvador where his mother ran a restaurant serving the local favorite dish, pupusas. Local gangs allegedly threatened the family in order to extort money. The gangs claimed that they would force Kilmar's older brother Cesar and then later Kilmar into the gang. Cesar fled to the US, followed by Kilmar in 2011(illegally) in order to escape the reach of the local gangs. His family moved several times to escape the gang's reach, eventually relocating to neighboring Guatemala. The family claimed that the local authorities were too corrupt to help them against their oppressors. Whether this sob story is true or a dramatization created in order to not be deported is unclear and unprovable. Kilmar joined his brother, Cesar, in the US who had since become an American citizen. Kilmar worked various construction jobs, and he met his future wife, Jennifer Sura, in 2018.
In March of 2019, Kilmar Abrego Garcia was arrested for loitering outside of a Home Depot in Prince George's County Maryland(just outside of DC). With him were three other men. Two of these men were seen dumping items out of their pockets when police arrived. Tubes of marijuana were found at the scene, and all four men were booked and taken to the police station. At least two of these men were confirmed members of the Salvadorian gang MS-13. This gang was deemed to be a terrorist organization by President Trump at the beginning of his term, and for good reason. These guys do horrible things to people much like what Garcia claimed to experience back home in El Salvador. Questioned separately, Kilmar vehemently denied being a gang member, but police noticed several articles of clothing that Garcia had been wearing. The police knew them to be gang symbols through informants. The same informants claimed that Kilmar Garcia was a confirmed gang member, and described that MS-13 members were only allowed to hang out with other members or potential members. With that information, Kilmar Garcia was held for several months in jail while his case was adjudicated.
During that time, Kilmar married Jennifer while in jail, exchanging rings through glass via a prison guard. In court, Garcia's lawyers successfully argued that there were creditable threats to his well being if he was sent back to El Salvador by local gangs. They sited his background I mentioned above, and the judge granted his request for a protected immigration status known as "withholding of removal." According to the American Immigration Council "Withholding of removal provides a form of protection that is less certain than asylum, leaving its recipients in a sort of limbo." In addition, it "does not offer permanent protection or a path to permanent residence. If conditions improve in a person’s home country, the government can revoke withholding of removal and again seek the person’s deportation." This status allowed Garcia to be released into the public, live, and work. However, there would always be the possibility of his status changing if the situation in El Salvador changed. Keep that in the back of your mind. Kilmar got a job as a sheet metal worker, joined a union, and had a son with his wife. In 2021, Jennifer filed for a temporary protective order after Kilmar allegedly "punched, scratched and ripped off her shirt during an argument." Like many cases of domestic violence, the case was dropped because the Jennifer didn't follow up or didn't come to court. She has since claimed that she acted rashly in asking for the order, and that they worked things out in private. Likely she didn't want the father of her child to be deported, but I digress. That leads us up the fateful day when Kilmar was taken "home" from his home.
The Fight Begins
On March 31st, the Justice Department admitted in court filing that Kilmar Abergo Garcia was wrongly deported to El Salvador causing a media frenzy. In a flurry of activity, a federal judge on April 4th ordered the Trump administration to return Garcia from El Salvador by midnight April 7th. At the last minute on the 7th, the Supreme Court paused the deadline while the justices weighed the case. Three days later, the Supreme Court with no dissenting votes ordered that the Trump admin must being the process to "facilitate" Kilmar's return from El Salvador. In the order the court said that Garcia's case must be "handled as it would have been had he not been improperly sent to El Salvador." It seems pretty straight forward to most people. Just go back and get him the same way that you dropped him off. However, it is not that simple. There was a reason that the Trump administration deported these people in the way that they did.
Under Article 2 Section 2 of the constitution, the foreign policy power of the United States is effectively divided among the legislative and executive branches of the government. However, it is conspicuously silent when it comes to particular issues of foreign policy. Through years of tradition and Congress giving powers to the President through decree, the executive branch holds much of the power over the nation's foreign policy. The argument being made by the Trump administration is that the situation with Garcia is now a foreign policy issue, and it is thus outside the purview of the courts. How can a court order the executive to interact with a foreign government in any sort of way? How can the courts order a foreign government to do anything? The answer is likely they can't. The Trump admin has designed this situation to make it impossible for the courts to reverse. The administration can say "We made a mistake, but now we have no power to bring him back because he is in the custody of a foreign government." The foreign government, El Salvador, says "We can't bring a gang member into the US without approval from the government." Of course the president just could ask to have him back, and they could likely get him back. Do they have a requirement to do so? That is the fundamental question in this matter. Can a court force an executive to make a request of a foreign government?
According to statements made by the Salvadorian government, they have an agreement with the Trump administration to detain about 240 gang members in their CECOT prison for a year in exchange for a lump sum payment of $6 million. The Trump administration refuses to release the written agreement between the countries citing sensitive diplomatic information. So the question is, who is deemed to have custody of the prisoners under the agreement? The Trump admin is arguing that the Salvadorians have full control of the prisoners now, and they have no say in their treatment or movement. However, if the Salvadorian statements are true, the fact that prisoners revert back to the US after a year suggests that the US does have ultimate custody of them. This is all very complex, and the language of the Supreme Court gives the Trump admin a lot of wiggle room to delay action. If it comes down to it though, what will happen if the Trump admin just refuses to obey court orders to get Garcia back? It could be a constitutional crisis. Presidents have ignored court decisions before most notably President Andrew Jackson ignored the Supreme Court's ruling protecting the Cherokee nation from being moved in the 1930s. Jackson supposedly said "John Marshall has made his decision, now let him enforce it." State ignored court rulings to desegregate their schools in the 1950s as well. Either way, this is not a good look for the President who thus far has done remarkably well on immigration policy.
Final Thoughts
My initial thought is that this is so stupid. It is been a weeks long distraction away from the more important issues of the day. However, I will accept that it is happening and assess the situation. Lets review the facts since I threw a lot at you.
Kilmar Abrego Garcia entered the country illegally in 2011
Garcia was arrested under the pretext of loitering in 2019 and was held for several months under suspicion that he was involved in a gang related murder.
Garcia was cleared on involvement in this matter and released with his immigration deemed to be "withholding of removal"
Garcia was accused of domestic violence by his wife in 2021, but that case was later dropped.
Garcia was detained by ICE and deported to El Salvador in March of 2025.
The Justice Department admitted that it was a mistake, and the Supreme Court ordered the Trump admin to "facilitate" his return last week.
I think the Trump admin want to get some criminal immigrant gang members out of this country as quick as possible to avoid having to give due process to them. They sent them to El Salvador for two reasons. First, due to the CECOT prison's ruthless reputation. If gangs think they may be going to that well known hell hole, then they may self deport. Secondly, if the prisoners are in the custody of another nation, then the Trump admin can argue that they are out of their control and can ignore court orders to return them. I think that the Trump admin screwed up in deporting someone with a protected status, and now they don't want to back down and concede any power to the courts in this area. It is pretty clear to me that they should do the right thing and bring him back. They can just deport him through the system if they want to. However, the Trump admin won't because of the continued public attention it would bring domestically. This whole situation could have been solved simply if they had just done it the right way.
Remember what I said above to keep in the back of your mind? If the government wanted Garcia to go, then they could have just changed the status of the withholding of removal. In 2019, El Salvador elected a new President Nayib Bukele, and he completely transformed the country. He got the gangs off the streets(by shoving droves of them into the infamous CECOT prison), made the public feel safe again, and he holds one of the highest approval ratings in the world. The US government could have made a reasonable argument that the situation in EL Salvador had dramatically changed, and that Garcia no longer had reasonable fears of reprisals. They could have deported him, and then he could apply to get a US VISA through his relationship to his wife and son. We would have never heard of his name, and this whole situation could have been solved. Too little too late. Is Garcia a gang member? I don't know, but if he was why was he released in 2019 into the general population? I am inclined to believe law enforcement's assessment, but there are just too many unknowns for anyone to know for sure. Just bring him back. This chicken fight is unbecoming of all involved.
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