What Due Process Was Owed to Kilmar Abrego Garcia?

And to the 277 other migrants now imprisoned in El Salvador?

Photo by Adam Fagen

American politics has been gripped by debates about “due process” lately.

It has become a rallying cry for Democrats, who charge that due process has been denied to migrants deported by the Trump administration. (According to Politico, they believe opposing his immigration agenda on these grounds will be more politically palatable than attacking the policies themselves.) And it has become a ready-made retort for Republicans, who say the Biden-era border crisis tied their hands, making it impossible to provide due process to every migrant.

But due process, by itself, is a fairly amorphous term. By using it, a politician can wave at some “process” that is (or isn’t) “due” to some group of people, without specifying what or who. In reality, of course, the term means different things in different contexts: different process is due to an American citizen than is due to a migrant here illegally than is due to a migrant deemed a threat to national security.

For all its recent ubiquity, no one on either side of the aisle has spent much time explaining what due process they’re requesting or rejecting, nor has the media spent much time explaining the processes that were owed to certain high-profile migrants (and how it might differ case by case).

This is one reason, I think, that I received so many questions in response to my last Kilmar Abrego Garcia piece. Questions like:

• What would have been the legal way for the government to deport Abrego Garcia, either to El Salvador or elsewhere?

• Is it legal for the U.S. to pay for his (or anyone else’s) detainment at CECOT, the notorious Salvadoran prison?

• Does the focus on Abrego Garcia mean the other migrants sent there were deported correctly?

I’ll answer those today. I also received questions from the right, like doesn’t the Alien Enemies Act empower Trump to deport Abrego Garcia without judicial oversight, and from the left, like wouldn’t this have been avoided if Abrego Garcia’s plane hadn’t taken off, as a judge ordered?

As it happens, those questions both stem from a fundamental misunderstanding of the situation. Abrego Garcia was not removed under the Alien Enemies Act; therefore, nothing about that law applies here, nor does a judicial order aimed at planes carrying migrants deported under that statute.¹

But I don’t blame those readers who wrote in with misunderstandings. When I was in school, not that long ago, I always felt like if enough people in a class didn’t understand something, it was probably at least partially the fault of the teacher. Here, if so many of you are confused about the circumstances of Abrego Garcia’s removal, it’s probably because the details weren’t properly articulated by those of us in the media (because it’s a difficult story to explain) or by politicians (because acknowledging the nuance doesn’t fit their ideological purposes).

Last week, I was frustrated that not enough outlets were sharing the full truth of Abrego Garcia’s case, which is why I wrote my “25 facts” piece. The responses highlighted for me how many politicians are making vague allusions to due process in reference to the 278 migrants sent from the U.S. to CECOT, without actually explaining what processes they’d have preferred.

Today, I want to straighten it all out, hopefully again in an unbiased manner.

The first thing you should know — and maybe this helps explain why politicians have been so evasive and citizens have been so confused — is that not all of the 278 migrants were due the same process, even though they are frequently conflated in news articles and press releases.

To understand their legal rights, they are best divided into three groups:

• The 137 Venezuelans deported under the Alien Enemies Act, in two flights that departed on March 15.²

• The 140 Venezuelans and Salvadorans deported under regular Title 8 immigration laws, some of whom were on those same two flights, some of whom were on a third flight that departed on March 15,³ and 17 of whom were removed on March 30.

• Kilmar Abrego Garcia, the Salvadoran who was also deported under regular Title 8 immigration laws on the third March 15 flight, but exists in his own category because he is the only one known to have had a specific legal right not to be deported to El Salvador.

Then, for each group, there are three main questions to ask:

1. Were they allowed to be removed from the US?

2. If correctly removed from the US, were they allowed to be removed to El Salvador?

3. If correctly removed to El Salvador, were they allowed to be sent to CECOT?

For visual learners, here’s a chart answering those questions for each group:

And now let’s walk through the answers one by one, in order to understand the actual processes that each of these groups were due.

Were they allowed to be removed from the US?

Migrants removed under the Alien Enemies Act: Likely not without further steps.

The Alien Enemies Act (AEA) gives the president broad powers to “provide for the removal” of non-citizens in the U.S. who are natives of a foreign country that has “perpetrated, attempted, or threatened” an “invasion or predatory incursion” against the U.S.

Trump invoked the law (against members of the Venezuelan gang Tren de Aragua) precisely because it allows him to sidestep some of the normal strictures of American immigration law, which are enshrined in Title 8 of the U.S. Code. The administration has argued that the AEA gives the president “absolute discretion to establish the conditions and processes” by which a migrant is removed under the statute, and that “alien enemies are not entitled to seek any relief or protection in the country that has designated them enemies, unless the president permits such applications.”

But the Supreme Court has ruled that there are supposed to be some guardrails around the president’s removal powers under the AEA. Specifically, the justices said that AEA detainees should “receive notice” that they are “subject to removal” under the law, “within a reasonable time and in such a manner as will allow them” to file legal challenges before they are removed.

That order came on April 7. Technically, it only applied to future removals; the court has not yet had occasion to address whether the administration erred in its AEA removals on March 15. However, it can be presumed that the same due process rights that have been owed to AEA detainees since April 7 also should have been given to AEA detainees on March 15.

I didn’t answer “no” to this question because the Supreme Court hasn’t specifically ruled on it. But its April 7 order makes clear that all nine justices believe AEA detainees are entitled to more due process than what we know to have taken place on March 15, which is why I wrote that those migrants “likely” should not have been removed without further steps (such as advance notice and an opportunity to file lawsuits, which they did not receive).

Separately from the question of whether the AEA applies to these migrants (several say they aren’t Tren de Aragua members, which would have been litigated in the judicial process they were denied), there is also the broader question of whether Trump was able to invoke the AEA in regard to Tren de Aragua at all. Lawyers for the migrants have argued that the gang’s presence in the U.S. does not meet the bar of a state-sponsored invasion⁴; the administration has said this question is not reviewable by courts. The Supreme Court has not yet weighed in.

If the justices do find that the AEA was improperly invoked, it would mean that the administration would have had to remove these migrants using regular Title 8 proceedings. According to their lawyers, the government had not yet completed this process for several of the migrants, which means the U.S. would have lacked the authority to immediately deport them absent the powers Trump claimed under the AEA.⁵

Kilmar Abrego Garcia: Yes.

Migrants deported under Title 8 are supposed to receive a written notice that they are subject to removal proceedings, a hearing with an immigration judge, the opportunity to appeal if a judge finds them removable, and then a final order of removal if the appeal fails.

Both the Trump administration and Abrego Garcia’s lawyers agree that all of those steps were fulfilled in his case, ending with a final order of removal that allowed him to be deported from the U.S.

Others removed under Title 8: Likely yes.

Similarly, the administration has said that everyone deported under Title 8 had final orders of removal, which means it was legal to remove them from the U.S. (although not necessarily to remove them to where they were sent). As far as I can tell, no evidence has emerged to indicate any of them did not have removal orders.

Were they allowed to be removed to El Salvador?

Venezuelans removed under Alien Enemies Act: We don’t know.

President Trump’s proclamation invoking the AEA said that migrants deported under the law could be removed “to any such location as may be directed by the officers responsible for the execution of these regulations consistent with applicable law.”

It is not clear if applicable law was followed, however, as Judge Boasberg has said that migrants removed under the Alien Enemies Act “likely” should have been allowed to contest being sent to El Salvador under the Convention against Torture (CAT), to which the U.S. is a signatory. Under U.S. laws and regulations codifying the convention, migrants are allowed to apply to prevent their removals to a county where it is “more likely than not” that they would be tortured by a government official. (An immigration judge then decides if that’s the case.)

The AEA detainees were given no opportunity to make such applications regarding El Salvador; in fact, their lawyers have said, it would have been impossible for them to do so because many didn’t even know they were going to El Salvador.

The administration says that it “continues to abide by its policy not to remove aliens to counties [sic] in which they are likely to be tortured,” but that the AEA’s expanded powers allow the president to set his “own mechanism” to make such determinations, without the application process given to migrants being removed under Title 8.

Boasberg was not swayed by the argument that the AEA allows the administration to forego the usual CAT process. The Supreme Court has yet to rule on this point, which leaves us without a definitive answer.

Kilmar Abrego Garcia: Not without further steps.

In a manner similar to a CAT claim, migrants can also apply for a “withholding of removal,” which prevents them from being removed to a specific country where “it is more likely than not that the alien would be subject to persecution.”

Both the Trump administration and Abrego Garcia’s lawyers agree that an immigration judge granted him this relief in 2019, preventing his removal to El Salvador due to potential persecution by the gang Barrio 18, which had threatened his family during his childhood in El Salvador.

That means, in order to deport him to El Salvador,⁶ the government likely would have had to go through the process of terminating his withholding of removal.⁷

Under federal regulations, the government can move to terminate a withholding of removal for several reasons, including “a fundamental change in circumstances relating to the original claim.” (Here, you could imagine the government citing the “dramatic weakening,” in MSNBC’s words, of Barrio 18 under Salvadoran president Nayib Bukele.)

A migrant with a withholding of removal is then supposed to be “provided the opportunity to present evidence showing that he or she is still eligible” for the protection. Then, the migrant is entitled an interview with a Department of Homeland Security asylum officer, who determines whether they are still eligible for the protection, as well as renewed proceedings before an immigration judge, who gets final say before the migrant is removed.

“If the government is confident of its position, it should be assured that position will prevail in proceedings to terminate the withholding of removal order,” Judge Harvie Wilkinson wrote in an opinion in the Abrego Garcia case last week.

Abrego Garcia received all the due process he was owed to be removed from the U.S., but not the due process he was owed to be removed to El Salvador.

Other migrants removed under Title 8: We don’t know.

In general, if a migrant in the interior of the U.S. is found to be here illegally and ordered to be removed, they are allowed to “designate one country” to which they want to be removed.

Of the 141 individuals in this category, 23 are Salvadorans. It is probable that most of them designated El Salvador as the country they wished to be deported to, and that El Salvador was the country listed on their final order of removal. If so, their removal to El Salvador was the proper execution of the process.

The other 118 are Venezuelans, for whom El Salvador was likely not the country that they requested be listed on their removal order. In that case, there was still a process by which the U.S. could have legally removed them to El Salvador, but it is unclear if the U.S. followed it.

By law, the attorney general can ignore the migrant’s designated country if that country is “not willing” to accept the migrant or if the AG determines that it is “prejudicial to the United States” to send them there. The government must then try any other countries the migrant is connected to; if they find it to be “impracticable, inadvisable, or impossible” to remove the migrant to any of those, then the migrant can be removed to any “country whose government will accept the alien into that country.”

That means a key question here is whether Venezuela — these migrants’ home country — was willing to accept them, which isn’t entirely clear.⁸

For a moment, though, let’s walk through the process to send migrants somewhere other than their home country — a “third country” transfer, it’s called — that the U.S. would have had to follow assuming that Venezuela was unwilling to accept their citizens. According to a March memo by the Trump administration, as long as the U.S. receives “diplomatic assurances” from a third country that migrants sent there won’t be “persecuted or tortured,” the U.S. can send migrants there “without the need for further procedures.”

However, a federal judge in Massachusetts temporarily paused that policy last week, ruling that it is “likely” a “deprivation of procedural due process” for the administration to deport migrants to a third country without “providing notice and a meaningful opportunity” to file claims that they would face torture or persecution in the third country, which the Venezuelans now in El Salvador did not receive.

The Supreme Court has yet to rule on this point.

Were they allowed to be sent to CECOT?

All 278 migrants: We don’t know.

I’m answering all three categories together here, because there aren’t many details on the legal basis used to detain any of them at CECOT.

The cases that have seen the most legal action so far have mostly focused on the questions of whether certain migrants now at CECOT could be deported at all (J.G.G. v. Trump) or whether they could be deported to El Salvador (Abrego Garcia v. Noem).

There has been relatively little discussion in these disputes about the legality of sending the migrants to CECOT. (Of course, that’s partially because, in these cases, if the migrants couldn’t be deported to El Salvador or at all, where in El Salvador they were sent is moot.) But it has meant we know almost nothing about the agreement through which the U.S. arranged for migrants to be removed from American soil and incarcerated in El Salvador, or the legal basis the U.S. is citing.

However, a new case has emerged that could offer more details: Quintero Chacón v. Dickerson is the first case filed on behalf of a migrant currently detained at CECOT. The lawsuit takes issue with Quintero’s removal to El Salvador — his lawyers say he was given no opportunity to file for CAT or withholding of removal protection — but it also challenges the government more than any other case on Quintero’s detainment at CECOT, which his lawyers say violates the law.

Generally, migrants are not supposed to be detained more than 90 days after the issuance of their removal order, although 8 U.S. Code § 1231(a)(6) allows their continued detainment if the attorney general deems them a “risk to the community.” However, Quintero’s lawyers note, the Supreme Court ruled in Zadvydas v. Davis, that such detention can only be limited to a “period reasonably necessary to bring about that alien’s removal from the United States.” The law does not permit “indefinite detention,” the justices said.

Additionally, Quintero’s lawyers point to 8 U.S. Code § 1231(g), which allows the attorney general to “arrange for appropriate places of detention for aliens detained pending removal or a decision on removal” by acquiring, building, or leasing facilities. “No statute,” the lawyers say, “authorizes extraterritorial immigration detention or immigration detention pursuant to an agreement with a foreign nation.”

The Trump administration has not yet responded to Quintero’s claims, but we know from other cases that the government does not view the migrants’ detainment at CECOT as detainment in U.S. custody. In the government’s view, the U.S. has executed the migrants’ orders of removals; whatever happens now that they are in El Salvador is up to El Salvador.

However, according to a Salvadoran memo obtained by the Associated Press, the U.S. is paying El Salvador $6 million to house these migrants for one year, “pending the United States’ decision on their long term disposition.”

This would suggest that the U.S. still retains some jurisdiction over the prisoners. So, have they been removed, freeing the U.S. from any legal obligation? Or are they still in some form of U.S. custody (with El Salvador as a contractor), in which case Zadvydas’ limits on detention would apply? We have no idea, because the Trump administration has given us effectively no details on the U.S.-Salvadoran agreement.

The best parallel here is probably the “extraordinary rendition” programs carried out during the Clinton, Bush, and Obama administrations, under which the U.S. detained terrorist suspects at CIA “black sites” abroad or in prisons maintained by those foreign countries. However, those programs mostly involved people who were captured abroad; even in a controversial Bush-era memo sanctioning the “extraordinary rendition,” the Justice Department cautioned that “a more complex set of rules” would apply to individuals being sent abroad from the U.S., most notably the CAT prohibition against sending migrants to places where they are “more likely than not not” to be tortured.

This period led to some removals with similarities to the current situation, including the case of Maher Arar, a Canadian citizen who was detained at an American airport and then sent to Syria, where he alleges he was tortured. Conditions at CECOT are famously harsh; the migrants there similarly allege their treatment meets the bar of torture. Arar sued the U.S., saying they conspired with Syrian officials to “arbitrarily detain, interrogate, and torture” him.

The U.S. sought to dismiss the case, invoking the “state secrets” privilege, as the Trump administration has done now. The U.S. also argued, as the Trump administration does now, that anything that happened on foreign soil after someone was removed from the U.S. was out of their hands.

An appeals court ultimately dismissed the case, ruling that “it is for the Executive in the first instance to decide how to implement extraordinary rendition,” and that Congress — not judges — should step in if the program was implemented wrongly. The Supreme Court declined to hear the case, leaving us without firm answers about the due process rights of migrants removed from the U.S. and transferred — with U.S. instance — into foreign custody.

1. Comments from the right, like Didn’t Abrego Garcia receive a removal order from a judge, and from the left, like Didn’t a judge protect Abrego Garcia from removal also betray misunderstandings. A judge did order that Abrego Garcia could be removed, but also said that he could not be removed to El Salvador, which is where the Trump administration sent him.

2. These are the flights that took off after Judge James Boasberg’s oral order, but before his written order. The administration has said that only the written order held legal weight, and that Boasberg didn’t have jurisdiction to ground the flights anyways. Boasberg has said “probable cause exists” to hold the administration in contempt for violating his order.

3. According to the Trump administration, no one on this flight was removed under the Alien Enemies Act, which would mean the flight wasn’t subject to either Boasberg’s oral or written orders.

4. Notably, according to the Washington Post, the National Intelligence Council — a body within the Trump administration — determined in February that Tren de Aragua does not operate at the direction of the Venezuelan government. The Alien Enemies Act can only be invoked in response to invasions by a foreign government.

5. Last night, a federal judge ruled that the government wrongly deported one migrant under the AEA, because that migrant was subject to a 2024 settlement agreement preventing his removal. The judge, a Trump appointee, has ordered that migrant’s return.

6. The U.S., of course, also had the option of deporting Abrego Garcia to another country, as long as that country agreed to admit him. The due process owed to someone with a withholding of removal before deporting them somewhere else is not written out in any regulations. Under the Biden administration, the government represented to the Supreme Court that migrants in this situation (which is relatively rare) receive notice before they are deported, so they can bring CAT or withholding of removal claims concerning the third country.

However, according to the National Immigration Litigation Alliance, in practice, this notice is generally oral and can be given as little as one hour before removal takes place.

7. I say “likely” because the Trump administration argues that Abrego Garcia’s withholding of removal was overridden by the fact that Trump designated MS-13 as a foreign terrorist organization in January — since Abrego Garcia was (in the government’s view) a member of the group, the administration argues, withholding of removal no longer applied under a provision that says exceptions to deportations do not apply to aliens the government views as a “danger to the security of the United States.”

This was a new argument they started advancing later in the legal process (after initially acknowledging that his removal was an “administrative error”). An appeals court panel held that the administration had not provided sufficient evidence of MS-13 membership to wage this argument. The Supreme Court has not explicitly weighed in, but ruled that Abrego Garcia’s removal to El Salvador was improper, which would suggest that the justices believe there are additional steps the administration must take before legally wiping away Abrego Garcia’s protection from being deported to El Salvador.

8. Nicolás Maduro’s regime in Venezuela has run hot and cold on accepting migrants from the U.S. Most recently, Venezuela agreed to accept deportation flights in February, but then stopped again in early March.

The Trump administration has claimed that these removals were “negotiated at the highest levels” with aides to both Maduro and Bukele, and that agreements were reached “with these foreign interlocutors” to allow the Venezuelan migrants to be removed to El Salvador. This suggests, but doesn’t outright say, that Venezula approved the transfer. At least publicly, however, Maduro has referred to the deportations as a kidnapping and demanded his citizens back, which suggests he was willing to accept them and that he opposed the move, but he’s hardly a reliable narrator, so it’s difficult to know the truth.