A Test for the Future of Human Rights in the United States: the Continued Imprisonment of Kilmar Abrego Garcia

The Lemkin Institute condemns the unlawful deportation of Kilmar Abrego Garcia and his continued arbitrary detention in El Salvador as well as President Donald Trump’s defiance of the Supreme Court order to facilitate his release and return to the United States.

Kilmar Abrego Garcia’s wrongful deportation due to an “administrative error” without due process and in violation of a court order of non-removal for fear of persecution is emblematic of the ongoing human rights violations from Trump’s immigrant crackdown. In addition, the Trump administration’s continued testing of the US court system through its defiance of any restraint placed on their targeting of noncitizens poses a threat to the future of human rights in the country. Trump’s open defiance of court orders with little to no real consequence gives him and his administration the greenlight to escalate their targeting of noncitizens and citizens alike. Abrego Garcia’s case is another test. Any outcome short of Abrego Garcia being released and returned to the US and the Trump administration held accountable will signal that they can use deportation as a method to effectively disappear those who don’t fit within their vision of America–a clear red flag for an escalating genocidal process.

The Trump administration asserts that Abrego Garcia, a Salvadoran migrant married to a US citizen, is an active member of the gang MS-13 which the administration has classified as a terrorist group. This claim hinges upon a previous arrest record of Abrego Garcia in 2019 and an immigration judge’s decision to deny bail. During Abrego Garcia’s initial arrest, officers noted he was wearing a Chicago Bulls cap and specific hoodie design that the police associate with “Hispanic gang culture.” The police also claim that a police informant identified Abrego Garcia as an active MS-13 member. An immigration judge denied bail after a first look at the evidence without assessing its validity (this comes during the trial stage). However, due to his fear of persecution if returned to El Salvador, Abrego Garcia was granted a “withholding of removal” immigration protection. This protection prevents the return of Abrego Garcia to El Salvador and entails the Department of Homeland Security determining that Garcia was not “a danger to the security of the United States.” Due to this determination, the case against Abrego Garcia did not proceed and the first Trump administration did not appeal or present any new evidence against him. Since 2019, Abrego Garcia has been living in the US under this protected status.

On March 12, 2025, ICE arrested Abrego Garcia as part of Trump’s mass deportation efforts, claiming that his “immigration status has changed.” Despite ICE being aware of Abrego Garcia’s withholding of removal protection, Garcia was detained without clear cause or due process and was later deported to El Salvador through an “administrative error.” It was not until April 12th that the US government was able to verify that Abrego Garcia was alive and being held in El Salvador’s Centro de Confinamiento del Terrorismo (CECOT). While initially admitting that Abrego Garcia’s expulsion had been a mistake, the Trump administration has been claiming that the arrest record and denial of bail decision proves that Abrego Garcia is a member of MS-13 and therefore he should be deported. This is fundamentally false– circumstantial evidence and a denial of bail decision is not a court conviction that definitively proves Abrego Garcia’s involvement with MS-13. The government is also trying to claim that Abrego Garcia was involved in human trafficking as more backlash to his imprisonment mounts. Despite the Trump administration’s efforts to claim otherwise, to this day, Abrego Garcia has never been convicted of a crime. Per Abrego Garcia’s immigration protection, the only way in which the government can deport Garcia for being a member of MS-13 is to reopen his immigration case and prove this to a judge–-which the Trump administration has not done.

On April 4th, a federal judge ordered the government to facilitate Abrego Garcia’s return. This order was later reaffirmed by the Supreme Court who stated Abrego Garcia’s arrest, deportation, and continued imprisonment in El Salvador had no basis in law and was in clear violation of Garcia’s withholding from removal protection. As previously mentioned, the government has not presented new evidence or proven before a judge that Abrego Garcia is a member of MS-13 and is therefore ineligible for protection. However, the Trump administration continues to falsely assert that Abrego Garcia is a terrorist and deserves to be in CECOT. The Trump administration has also argued that Abrego Garcia, being a Salvadoran national in Salvadoran territory, is outside of US jurisdiction which would prohibit the US from being able to intervene to have Garcia released and returned to the US. This argument is partially true. Abrego Garcia is under the jurisdiction of El Salvador, however, an agreement between states where El Salvador consents to release Garcia to the US who consents to receive him could be made.

Trump has proven to be unwilling to negotiate for Abrego Garcia’s release and return in open defiance of the Supreme Court and complete disregard for US law and human rights. Salvadoran President Nayib Bukele, who has his own abysmal human rights record and is receiving millions of dollars to hold US deportees in prison, voiced his unwillingness to negotiate the release and return of Abrego Garcia in a recent meeting with Trump. When asked if he plans to return Abrego Garcia, Bukele responded, “How can I smuggle a terrorist into the United States? Of course I’m not going to do it. The question is preposterous.” Bukele’s equal unwillingness and explicit parroting of Trumpian talking points solidifies his profitable partnership with Trump at the expense of fundamental human rights for those like Abrego Garcia. Bukele receives millions of dollars and support from the Trump administration to build more mega-prisons like CECOT while Trump can effectively disappear those to El Salvador who do not fit within his vision of America. Bukele in the past said he would be willing to take US prisoners of any nationality, including US citizens. Trump recently stated that he would be willing to deport US citizens to El Salvador. In their most recent meeting, Trump commented to Bukele, “Homegrown criminals are next…You’ve got to build about five more places.” If Trump and Bukele are able to keep Abrego Garcia arbitrarily detained without consequence, Trump’s plan becomes more likely.

Through El Salvador’s brutal prison system, the US will be able to outsource its cruelty in targeting citizens and noncitizens alike. Detainees in Bukele’s El Salvador are held incommunicado with little to no legal recourse. Many are held practically indefinitely as they await trial with no way to effectively challenge their detention. The Bukele administration has also intimidated judges to keep detainees in prison despite little to no evidence of crimes. This constitutes arbitrary detention which is prohibited as a fundamental principle of international human rights law. Detainees are kept in overcrowded and inhumane conditions with many suffering from poor hygiene, malnutrition, and disease. There have also been reports of detainees being tortured by prison guards. The US sending detainees like Abrego Garcia to El Salvador’s prisons being fully aware of the inhumane treatment of prisoners is in violation of its obligations under the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (CAT). The CAT states that “no State Party shall expel, return ("refouler") or extradite a person to another State where there are substantial grounds for believing that he would be in danger of being subjected to torture.” This principle of non-refoulement is absolute and applies to individuals regardless of criminal background or immigrant status.

After finally meeting with Abrego Garcia in El Salvador, Senator Chris Van Hollen assured that Garcia had been moved from CECOT to a facility that has relatively better conditions–this is not enough. The conditions at CECOT are emblematic of the Salvadoran prison and criminal justice system as a whole. Even at a different facility, Abrego Garcia will most likely face aspects of inhumane treatment and will still face a lack of legal recourse or procedural safeguards. He will still be held hostage by the US who is paying to keep him imprisoned and by El Salvador who is more than happy to carry out the Trump administration’s bidding. Furthermore, for Abrego Garcia and the many other victims of Trump’s mass deportation efforts detained in the US, El Salvador, or other countries, their lives are forever changed and the trauma of their experience will continue even if they are eventually released.

Reflecting on his trip, Van Hollen stated that the Abrego Garcia case “is not only about one man…It’s about protecting the constitutional rights of everybody who resides in the United States.” He is right. With the Abrego Garcia case, Trump is testing the boundaries of his power to target individuals and the ability of the judiciary to put limits on that power. Trump has already weaponized citizenship and lawful presence to target critics in addition to noncitizens. He previously ignored the courts by wrongfully deporting over 200 Venezuelans to El Salvador under the Alien Enemies Act of 1798, and was rewarded by a partially favorable Supreme Court decision which allowed his administration to continue deporting Venezuelans under this law as long as the deportees were notified of their deportation and could challenge it. When a lawsuit presented evidence that these conditions were being violated, the Supreme Court recently ordered a temporary pause on Trump’s deportation efforts. However, the damage has already been done. The Supreme Court’s previous semi favorable decision after the Trump administration’s overt flouting of any judicial restraint on their power has demonstrated that the administration can forcefully exert their will and expand their power. The same playbook is being applied to the case of Abrego Garcia and will most likely be applied to the Supreme Court’s most recent order.

The groundwork has already been laid for the Trump administration to turn citizenship and lawful presence into the ultimate loyalty test with the privilege of residing in the US reserved for those in line with MAGA ideology and Trump’s vision for American society. For those whose politics, religion, sexual orientation, gender identity, ethnicity, nationality, or race are not in line with this vision, deportation to El Salvador’s prison system is becoming a viable solution for their removal. Through his executive orders, Trump has already expanded the notion of who may be deemed a “criminal” and is now openly discussing sending US citizens with criminal convictions to El Salvador. Trump’s counterterrorism czar, Sebastian Gorka, even went so far as to say those who do not support Trump’s mass deportation efforts are “on the side of terrorists” and could be prosecuted with “aiding and abetting.” This is a textbook progression of the genocidal process which will continue if Abrego Garcia remains unlawfully imprisoned and the Trump administration continues violating due process, allowing arbitrary detention, and unlawfully deporting individuals en masse without consequence.

It is of the utmost importance to the future enjoyment of human rights in the US that the Trump administration be held accountable for their negation of human rights enshrined in domestic and international law. The Trump-Bukele partnership which creates a system in which Trump is able to disappear those not fitting within the MAGA vision for America to the tune of millions of US taxpayer dollars must be openly condemned and stopped through pressure from the US, El Salvador, and the international community. All levels of US society must work to provide potential sources of restraint on Trump’s power and to protect the rights of those being targeted by his administration. A federal judge is trying to hold Trump officials who defied court orders and deported over 200 to El Salvador in contempt of court and there have been over 190 legal challenges to Trump policies. These efforts must continue. Both the judicial and the legislative branches of state and federal government must work together to preserve checks and balances on the executive. Civil society must continue to put pressure on their representatives and demand justice. If Kilmar Abrego Garcia is not freed, the rest of America’s freedom hangs in the balance.