By Rich Lowry
Tuesday, April 22, 2025
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 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, of 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 U.S.
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 being removed, Abrego Garcia made an asylum claim, sought
relief under the U.N. 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, had begun extorting and threatening the family. This
included a warning that it would take Kilmar, then around twelve 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 and 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’s President Nayib
Bukele has utterly demolished Barrio 18.
So, here we had a man, Kilmar Abrego 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 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.
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