Kilmar Abrego Garcia wants asylum. The US wants to deport him. What to know

Kilmar Abrego Garcia faces an uncertain future.

The Trump administration wants to deport it to the African nation of Eswatini. Abrego Garcia wants to ask for asylum to stay in the United States

One or the other path could start with a long journey through the legal system.

Abrego Garcia, 30, has become a flash point on the repression of the immigration of President Donald Trump when he was wrongly deported to his native Salvador. The Trump administration said he was a member of the Gang MS-13, an allegation that Garcia Nie Nie and for which he was not charged.

The administration returned Abrego Garcia to the United States in June, but only to face accusations of human smuggling. The lawyers of Abrego Garcia called the absurd and vindictive affair.

Abrego Garcia was released from a Tennessee prison to wait for his trial last month. He was placed in police custody three days later and remains in a virginie detention center.

Here is an overview of what could happen next:

The Trump administration proposed to send Abrego Garcia to Eswatini because it cannot legally send it to Salvador.

Abrego Garcia fled El Salvador around 2011 because a local gang had extorted and terrorized it, as well as his family, according to court documents. Abrego Garcia had settled in Maryland without documentation to join his older brother, who had become an American citizen.

One day in 2019, Abrego Garcia sought to work as a day worker outside a home deposit. A confidential informant told the police that Greo Garcia and other men outside the store were in MS-13 because of their clothes and tattoos, according to court documents.

Abrego Garcia has never been charged but was given in immigration and in customs. He asked for asylum, but was refused because his request came more than a year after entering the United States

However, an immigration judge granted him protection against being expelled in Salvador after Guego Garcia demonstrated that he had a well -founded fear of the persecution of the gangs.

Six years later, in the first days of the second Trump administration, Ice expelled Abrego Garcia to a notorious prison in El Salvador, violating the order of the immigration judge. Following an order from the Supreme Court, the Trump administration returned it to the United States, but only to face accusations of human smuggling.

The Trump administration said last month that it intended to deport it to the African country of Uganda. Abrego Garcia informed the US government that he fears to be sent there for concerns of persecution or to be sent to Salvador.

Last Friday, the Trump administration said that it now intends to deport it to Eswatini.

A letter from Ice said that his fears are “difficult to take seriously, especially since you have affirmed (through your lawyers) that you fear persecution or torture in at least 22 different countries.”

The United States is supposed to follow a process in several stages to expel someone to a nation that is not their country of origin, according to immigration lawyers.

For example, an immigration agent is supposed to conduct a reasonable interview for fear, during which Abrego Garcia can raise concerns about persecution and torture. If the officer does not agree, Abrego Garcia may ask an immigration judge to examine the decision. From there, Abrego Garcia can go to the board of directors of the Immigration Council.

Immigration judges are part of the Ministry of Justice and under the authority of the Trump administration. Trump dismissed immigration judges, many of whom are appointed by former president Joe Biden, as part of his repression of immigration.

However, Abrego Garcia can contest a decision to appeal by the Immigration Council before the federal courts, which are part of the country’s independent judicial system.

Even if Abrego Garcia thwarts the expulsion to Eswatini, he will probably face attempts to withdraw it in another country, then another, according to the immigration lawyer based in Memphis, Andrew Rankin.

“According to medium-sized law, you cannot win all cases,” he said.

Asylum, however, could put the focus only on El Salvador, where Abrego Garcia previously showed a credible fear of gang persecution.

Abrego Garcia filed a request to reopen his 2019 immigration case and ask for asylum. His lawyers will probably say that he has been eligible because he has been in the United States for less than a year, said Rankin.

Asylum could provide a green card and a path to citizenship. But he takes a risk, said Rankin. If Abrego Garcia loses his candidacy, an immigration judge could withdraw his return protection in Salvador.

The request of Abrego Garcia to reopen his immigration case is still pending. If he is refused, he can appeal to the Council of the Immigration Appeal. From there, he can go to the American court of appeal of the 4th circuit in Richmond, Virginia.

If he is allowed to ask for asylum, he will get an audience. His lawyers and the government can present evidence and call witnesses.

“A very famous saying in the immigration court is” the immigration court has consequences for the death penalty in a traffic court, “said Lavocat.

For example, immigration judges have much broader discretion on planning, admission of evidence and the publication of judgments, said Rankin. There may be little consistency between individual immigration courts.

“In the traffic court, you decide a speed ticket, which affects insurance,” said Rankin. “While before the immigration court, you decide in this particular case if someone will go home to die. Or if he will stay in the United States ”

The Attorney General Pam Bondi has the power to decide on the immigration affair of Abrego Garcia as head of the Ministry of Justice, according to immigration experts. Such decisions are rare, but the Trump administration has shown a desire to break with the previous one.

The lawyers of Abrego Garcia in his criminal case in Tennessee criticized Bondi for what they say to be prejudicial statements, saying that he cannot obtain a fair criminal trial.

César Cuauhtémoc García Hernández, Ohio State University law professor, said that a hypothetical Bondi decision is likely to appeal to the 4th circuit.

The most intelligent thing to do for Bondi, said the professor is to “work with a good group of lawyers from the Ministry of Justice who will explain the factual basis of your conclusion”.

Rankin, Memphis’s lawyer, said ABREGO Garcia’s lawyers would probably attack any decision made by Bondi to deport him as “a political job”.

“It would destroy any credibility that it is a prosecution for the American people and not a prosecution for Donald Trump,” said Rankin.