Kilmar Abrego Garcia shouldn’t be in a prison in El Salvador, but he also never should have been in the United States — or given relief from deportation.
The White House is trying to make the alleged MS-13 gang member a symbol of illegal-immigrant crime, while President Trump’s opposition is seeking to make “the Maryland man” a symbol of the administration’s disregard for due process.
What has gotten less attention is that his case is an example of the self-defeating absurdities of our immigration system and, in particular, how it hands out “humanitarian protection.”
When Abrego Garcia avoided deportation back in 2019, he didn’t take advantage of asylum — which has been a key driver of the immigration crisis — but something called “withholding of removal.”
Whereas a grant of asylum greases the path to US citizenship, a withholding of removal just prevents a deportable alien from being removed to a particular country — in Abrego Garcia’s case, El Salvador.
Abrego Garcia was born in 1995 in El Salvador and came to the United States in 2012, when he was 16 years old.
He lived here illegally until he was picked up by the police in 2019 and put into deportation proceedings.
To avoid getting removed, Abrego Garcia made an asylum claim, sought relief under the Convention against Torture, and applied for a withholding of removal.
An immigration judge didn’t grant him asylum (he hadn’t applied, as required, within his first year of coming here) and ruled that Abrego Garcia hadn’t established that he’d be tortured upon return to El Salvador.
The judge did, however, grant the withholding of removal, on unconvincing grounds.
Abrego Garcia claimed that his mother had run a pupusa business — a national dish in El Salvador — out of the family’s home and that a gang, Barrio 18, began extorting and threatening the family.
The threats included a warning that the gang would take Kilmar, then around 12 years old, if the payments didn’t continue.
Assuming that this is true, it’s awful — but it wasn’t a good reason to prohibit Abrego Garcia from being removed to El Salvador years later.
At the time of the court proceeding, things had changed: The pupusa business had closed, so the occasion for extortion by the Barrio 18 gang no longer existed.
And Abrego Garcia wasn’t a kid anymore; he was a 23-year-old capable of living independently of his family.
To succeed in getting a withholding of removal, an alien is supposed to establish a risk of persecution based on his race, religion, nationality, membership in a particular social group, or political opinion.
How did this apply to Abrego Garcia? Supposedly his family was “the particular social group.”
This is a stretch, since the gang presumably would have treated anyone with a pupusa business the same way. The family wasn’t the victim of persecution as commonly understood, but of a cowardly act by despicable gangsters.
Someone petitioning for a withholding also needs to show that he can’t relocate somewhere else in his country of origin to avoid the potential harm.
It’s hard to believe that Barrio 18 would have hunted Abrego Garcia down wherever he lived in El Salvador to harass him over a former San Salvador pupusa business.
Then there’s the fact that El Salvador President Nayib Bukele has utterly demolished Barrio 18.
So here we had a man, Kilmar Arbego Garcia, who came here illegally and had, at best, questionable associations, living and working in the United States based on a supposed fear of an all-but-extinct street gang and its depredations over a long-closed pupusa business.
And we wonder why we can’t control illegal immigration?
Congress should eliminate the “particular social group” category, which is often abused.
And we should fundamentally rethink how humanitarian protection works — and even if it makes sense for the United States to be in the business of granting asylum at all.
The Trump administration shouldn’t have blown by the immigration judge’s 2019 ruling in Abrego Garcia’s case. But this is no way to run an immigration system.
Twitter: @RichLowry
This story originally appeared on NYPost
