“Detained Without Evidence”: Maryland Father Remains in El Salvador Prison After SCOTUS Ruling

AMY GOODMAN: This is Democracy Now!, democracynow.org. I’m Amy Goodman, with Juan González.

The Supreme Court issued two rulings Monday related to the Trump administration expelling immigrants to a notorious supermax prison in El Salvador. In one case, the court ruled in a 5-to-4 decision to allow the Trump administration to resume, for now, its use of the 1798 Alien Enemies Act to send Venezuelan nationals to El Salvador. However, the justices ruled the targeted individuals are entitled to challenge their removal from the United States. But it’s unclear what this means for the 238 Venezuelans who were sent to El Salvador last month in defiance of a judge’s order and imprisoned at this notorious prison outside San Salvador.

In a separate decision, Chief Justice John Roberts temporarily paused a lower court order that instructed the Trump administration to bring back a Maryland dad who had been mistakenly sent to El Salvador. The Trump administration has acknowledged that Kilmar Abrego Garcia was removed from the U.S. in error on March 15th, but the administration claims they’re now powerless to bring him back to his family, even though the Trump administration is paying El Salvador $6 million a year to imprison immigrants expelled from the United States. Abrego Garcia, who’s from El Salvador, was granted protected legal status in the U.S. by an immigration court in 2019, prohibiting the federal government from sending him back to El Salvador after he fled gang violence there.

On Sunday, Federal Judge Paula Xinis accused the Trump administration of committing a “grievous error” that “shocks the conscience” by seizing and expelling Abrego Garcia. She was the judge who had ordered Abrego Garcia to be returned home by midnight Monday night.

Meanwhile, the Justice Department has placed a senior immigration lawyer on indefinite leave after he acknowledged in court Friday that the Trump administration had made a mistake in sending Abrego Garcia back to El Salvador.

On Friday, his wife Jennifer briefly spoke to reporters.

JENNIFER VASQUEZ SURA: I want to say thank you to everyone that has helped us, that has supported us in fighting this. And we will continue fighting for Kilmar, for my husband. Thank you.

AMY GOODMAN: We’re joined now by two guests. From San Salvador, Noah Bullock is with us, the executive director of Cristosal, a human rights group in Central America. His recent piece for Foreign Policy, “The Horror Inside the Salvadoran Prisons Where Trump Is Sending Migrants.” And in Virginia, we’re joined by Simon Sandoval-Moshenberg, an immigration lawyer representing Kilmar Armando Abrego Garcia and his family.

Let’s begin with Simon. If you could talk about the latest ruling and how it affects your client, how he was removed to El Salvador, how he’s been imprisoned, and now the ruling of Chief Justice Roberts?

SIMON SANDOVAL–MOSHENBERG: Sure. I mean, this case arose out of an accident, right? I mean, the government admits that they didn’t have any legal basis whatsoever to deport him to El Salvador. That’s not entirely out of the ordinary. You know, it happens from time to time. I’ve been practicing immigration law for nearly two decades. Erroneous deportations happen.

But in every previous such case that I’ve handled — and I’ve spoken with several other immigration lawyers — you know, as soon as you bring this to their attention, they sort of — and convince them that they’ve made a mistake, they immediately set the wheels in motion to fix it, right? They bend over backwards. I’ve had plenty of clients return to the United States before. I’ve spoken with lawyers who have had clients removed to Iraq by accident, and, you know, we managed to get them back.

But what’s different about this case is that, you know, we brought it to their attention, we filed a lawsuit, and there was just, essentially, no response whatsoever. And the posture of the administration has been, “Yeah, we made a mistake. No, we’re not going to do anything whatsoever to fix it, and, no, court can order us to fix it.” That’s really what’s remarkable about this case.

And then they’ve dug in their heels at every step of the way — at the district court, at the court of appeals and now the Supreme Court. I mean, it’s ridiculous that this case is at the Supreme Court at all. The government is really the ones who have chosen to make a big national issue out of this particular case, which really should have just been resolved very quickly and quietly.

JUAN GONZÁLEZ: But, Simon, when you say that these kinds of errors in deportations sometimes occur, the judge in this particular case, the federal district judge in Maryland, stated that the only evidence against your client consisted, quote, “of nothing more than his Chicago Bulls hat and hoodie,” and a vague, uncorroborated allegation from a confidential informant claiming he belonged to MS-13’s “Western” clique, a place he’s never lived. This seems to go a little bit beyond just an error. What about this whole issue of how the government is identifying supposed, potential, not only criminal aliens, but people that are destabilizing the country?

SIMON SANDOVAL–MOSHENBERG: Right. That all actually dates back to 2019. None of that is even contemporary, right? He was first arrested by ICE in 2019 when he was working as a day laborer in front of a Home Depot. There was this anonymous tip, a confidential informant, combined with the fact that he was wearing a Chicago Bulls hat, that, as far as ICE was concerned, was more than enough to label him a gang member.

When he was first detained by ICE, he had a preliminary hearing, and the immigration judge essentially said, “Well, I don’t know what’s going on. We’ve got this — you know, we’ve got this confidential tip. I can’t be satisfied. I don’t know what’s going on, so I’m going to deny his release.” So the judge essentially ordered that he continue to be detained during his immigration proceedings.

But then he had a trial, right? And he won his trial. The judge ordered him relief from removal, ordered that he could not be deported to El Salvador, granted him withholding of removal. And the government, the Trump administration at the time, didn’t even bother to appeal, right? They just sort of said, “All right, that’s fine.” They released him from detention, and they gave him a work permit. And he’s been working — which he’s renewed ever since, and he’s been working legally, now as a sheet metal worker apprentice, on a legal work permit ever since.

So, to the extent that they’ve got these allegations against him, they’re not even sort of contemporary allegations. They’re six years old.

JUAN GONZÁLEZ: And in terms of this whole issue of the government claiming that it can’t — it has no ability to bring him back — 

SIMON SANDOVAL–MOSHENBERG: Yeah.

JUAN GONZÁLEZ: — talk about that. And also, the government has a contract with the government of El Salvador to hold these deportees.

SIMON SANDOVAL–MOSHENBERG: Right. I mean, the government’s sort of main defense here is — in their pleadings in the case, leaving aside the rhetoric, you know, from the White House press secretary, the government’s main defense is not that he’s supposedly an MS-13 member. It’s the sort of impossibility defense. It would be impossible, right? How could we possibly do it? They’ve provided no evidence to that effect, right?

And we provided fairly significant evidence that there is an agreement between the United States and El Salvador vis-à-vis this prison. We’ve got the president of El Salvador, Bukele, tweeting that he’s receiving $6 million from the United States to house United States detainees in this prison; Marco Rubio, in response to that tweet, tweeting, “Thank you, President Bukele.” We’ve got the fact that after our case was filed — right? — after we had a preliminary scheduling conference with the judge, so they were already on notice of what they had done to Mr. Abrego Garcia, they put Kristi Noem within the walls of that prison, got her out again on a same-day basis. And plenty of other evidence, which, you know, is certainly circumstantial evidence, but a mountain of circumstantial evidence adds up, especially when faced with no contrary evidence from the government.

And the district judge in Maryland found, and then the Court of Appeals in Richmond agreed, that there’s enough evidence to show that we have an agreement with the government of El Salvador, and that pursuant to that agreement, we could request him back.

AMY GOODMAN: I want to bring Noah Bullock into this conversation. He’s in San Salvador, not that far from the prison where migrants, where asylum seekers are being sent from the United States, this CECOT prison. For the first time, Noah, it must be something for you to see this kind of focus from the United States on what you’ve been noting, and other human rights groups, for quite some time. The fact is, hundreds of Salvadoran prisoners — is this right? — have died in El Salvador’s prisons, the same prison system that the U.S. is paying millions of dollars to the president, who has declared a state of exception in your country. Explain what that is and what we should know about these prisons.

NOAH BULLOCK: Sure, and thank you for the invitation, Amy.

The state of exception, in some ways, is similar to the Alien Enemies Act in the United States, only that it’s applied to Salvadoran citizens. It’s an emergency declaration that restricts due process rights and has been in place for three years. It was an emergency decree that was originally put in place to combat gang violence. But over the course of three years, 85,000 Salvadorans have been detained under this decree. And in our investigation of cases, the overwhelming majority of those detentions have been illegal, people detained without evidence, without prior investigations or even judicial warrants, purely on the discretion of the police officers and soldiers that are rounding them up.

And once they are in prison, they’re able to be held for up to three years now without going to trial, without formally being accused of a crime. And in prison, they’re cut off from communication from their families. They don’t have access to defense attorneys. These conditions constitute, under international law, forced disappearances. And inside the prisons, we’ve been able to document systematic torture, physical abuse, but also denial of access to food, water, clothing, healthcare, hygiene.

Much has been made of CECOT, the mega-prison that was built during the state of exception. It’s a very new prison. But the majority of the 85,000 people who have been detained are being held in older maximum-security prisons. And the conditions of physical abuse, combined with the intentional denial of access of basic necessities, according to our research, has produced the deaths of at least 368 people. But the testimonial evidence of prisoners or former prisoners is that that number is likely much higher. So, while the focus of the media attention and even the government’s own propaganda has been on CECOT, this new prison, the majority of the people detained in the state of exception are in other prisons where conditions are likely much worse.

JUAN GONZÁLEZ: And, Noah, could you talk about — there had been more than 7,000 petitions of habeas corpus submitted to the Salvadoran Supreme Court. How have the courts handled these petitions so far?

NOAH BULLOCK: Yeah, that’s another important parallel to draw here with the situation in the United States. When the president’s party won a supermajority in the Legislature, the very first night, the very first legislative session, they overthrew the Constitutional Court here, which is the highest court in the land. And they installed new magistrates that would be loyal to the president. After that, they purged about a third of the judges in the lower courts and put the rest of them basically on notice that they could be removed at the discretion of the new Supreme Court. So there’s a lack of judicial independence. And that’s what we’ve seen.

You mentioned the number. We estimate that about 7,200 habeas corpus claims have been made to the Constitutional Court during the state of exception, and less than 1% of those have been resolved by the court, meaning that, effectively, the constitutional right to habeas corpus has been denied systematically to Salvadorans. We also have documented how, in the state of exception, they’ve created new courts, specific tribunals, with judges whose identities are secret. So these are ad hoc secret tribunals that were created specifically to convict people detained in the state of exception. And reforms to the penal code will allow the attorney general in El Salvador, who was also installed through a legislative coup on that same night, to prosecute the people in groups of 900 — they’ve even said publicly up to 2,000. The Salvadoran government has said specifically that they’re not intending even to try these people individually, rather in groups.

And when we’ve looked at cases and our lawyers who have tried to exercise the defense of people who have been detained with chronic illnesses, physical handicaps, and even pregnant women, the accused are unable to exercise even the most minimal defense in these tribunals. And they’re accused without any individual evidence brought against them. That reminds me a little bit of the case of Kilmar — right? — that there is no evidence been brought against him, other than somebody said he’s in a gang.

AMY GOODMAN: I want to end with Simon in Virginia. What happens next with Kilmar Armando Abrego Garcia? You have the chief justice pausing the timeline. The rule was last night by midnight, he had to be brought back. So, what happens now? This goes to the full Supreme Court?

SIMON SANDOVAL–MOSHENBERG: Yeah, the chief justice entered a brief administrative stay, just so that the Supreme Court could, you know, essentially, get its work done, right? The Supreme Court didn’t even get the case ’til 2:00 on Monday. The deadline was midnight. It’s a five-hour flight. We have every confidence that the Supreme Court is going to work on this and issue a ruling very quickly. But, yes, it will go to all nine justices of the Supreme Court.

I expect and hope that they will rule in our client’s favor and that they’ll do so as quickly as possible this week. They’ll set a new deadline — right? — however many — they’ll give the government however many hours or however many days to comply.

And then we expect the government to start working in good faith to actually do that. There’s been not one iota of good faith so far in this case. They haven’t reached out to us at all. They clearly didn’t make any steps to start complying with the judge’s order, you know, in case their legal strategy of appeals didn’t work. It’s time for them to actually start doing the right thing here.

AMY GOODMAN: Simon Sandoval-Moshenberg, we thank you so much for being with us, immigration lawyer representing Kilmar Armando Abrego Garcia, who is now imprisoned in the notorious CECOT, the supermax outside of San Salvador. And Noah Bullock, executive director of Cristosal, a human rights group in Central America, speaking to us from San Salvador. We’ll link to your piece, “The Horror Inside the Salvadoran Prisons Where Trump Is Sending Migrants.”

Next up, “Black Americans Are Not Surprised,” writes Fordham professor Christina Greer. Stay with us.