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During the Biden administration, the Left and its media allies tried to erase the line between legal and illegal aliens, calling all aliens "noncitizens." Now they’re attempting to confuse the distinction between criminal and civil proceedings and rights regarding deportable aliens to stoke opposition to the Trump administration’s actions.
In so doing, the Left is using Kilmar Abrego Garcia as their poster child to demand "more due process." It’s time to correct this intended confusion and show just how much due process aliens receive.
When an alien becomes deportable – either because they entered the U.S. illegally, overstayed their temporary visa, committed a crime, committed fraud, participated in terrorist activity, or other reasons – ICE charges the alien with ground(s) of deportability, which initiates removal proceedings with the Justice Department’s administrative immigration court system.
Democratic Sen. Chris Van Hollen speaks to Kilmar Abrego Garcia in El Salvador. (Reuters)
These are civil proceedings, not criminal. The administrative immigration judges are Justice Department employees in the executive branch; they are not federal judges under the Article III Judiciary of the U.S. Constitution.
That means deportable aliens in deportation proceedings do not have the same rights as a person in a criminal trial, such as being innocent until proven guilty, the right to a taxpayer funded public defendant, etc. Removing a deportable alien is not a criminal sentence.
Within the civil, immigration context, Congress, on behalf of the American people, has legislated scores of ways to temporarily and permanently come to the U.S. – lawfully. Foreigners abroad can apply for visas to visit, study, work or join family here in the U.S. If they are fleeing persecution, they can apply for refugee protection through the U.S. Refugee Admissions Program.
Once in the U.S., aliens can also apply to DHS’s U.S. Citizenship and Immigration Services for asylum, work authorization, "green cards" (permanent immigrant visas), naturalization and more immigration benefits.
What will surprise most Americans is that deportable aliens in immigration court proceedings have yet a third opportunity to apply for immigration benefits.
After an immigration judge finds the alien is deportable as charged (most deportable aliens concede their charges), the alien can request "relief from deportation" by applying for asylum or a green card with the judge. If granted, ICE’s request for removal is denied, the alien is given the immigration benefit and remains in the country. That is, unless the alien subsequently commits another deportable offense. Then, ICE can repeat the process.
THE WHITE HOUSE AND THE COURTS MUST COME TO A COMMON SENSE UNDERSTANDING OF THEIR OBLIGATIONS
Now consider Abrego Garcia’s case. He didn’t follow Congress’ "due process" by applying for a visa or refugee protection before coming to the U.S. Instead, he snuck across the border around 2011. He did not go to U.S. Citizenship and Immigration Services to seek asylum within his first year in the U.S., an important and commonsense time-limitation Congress imposed to prevent asylum fraud.
If you were really fleeing for your life, one would reasonably expect you would request protection soon after arriving here. But Garcia didn’t follow that due process either.
Eight years later, he was arrested in a Maryland Home Depot parking lot, after police suspected suspicious activity by a small group of men and found discarded marijuana under a vehicle. The Gang Unit assisting at the scene filled out a Gang Field Interview Sheet and alleged that Abrego Garcia was an active member of the MS-13 gang.
The police turned him over to ICE, which detained him, initiated deportation proceedings, and opposed his release on bond, arguing he was a danger to the community based on the gang report. An immigration judge denied bond in April 2019, citing the gang report as trustworthy evidence.
IF WE CAN’T DEPORT ILLEGALS, HERE'S HOW WE CAN MAKE IT IMPOSSIBLE TO STAY
Then, Garcia sought asylum and withholding of removal with an immigration judge as a defense from removal. He claimed he would be persecuted by another gang in El Salvador, Barrio 18. The immigration judge denied asylum because he violated the one-year time bar, but granted the more limited withholding of removal, released him from ICE custody, and issued a final order of removal to any country except "Guatemala." This was the clerical error – the order should have read "El Salvador."
Despite that due process, Garcia continued to violate the law. In May 2021, his wife sought a temporary protective order against him in Prince George’s County, Maryland. Then, in December 2022, the Tennessee Highway Patrol stopped him for speeding and failing to maintain his lane.
The officer suspected human trafficking due to eight other individuals in the SUV with no luggage, despite traveling from Houston to Maryland. The owner of the SUV was a confessed human smuggler. Garcia was released with a warning for an expired license after the FBI instructed that he be released.
President Donald Trump has designated MS-13 a foreign terrorist organization. This negated Garcia’s limited protection from being removed to El Salvador under the Immigration and Nationality Act. And so, the Trump administration removed him to El Salvador.
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The Left demands Abrego Garcia be returned to the U.S. and receive his due process. Once again, they are being dishonest with the American public.
They ignore the fact that Garcia didn’t follow the process due Americans to seek a visa or refugee protection to come here lawfully. Nor do they admit that he failed to request asylum soon after his illegal entry.
And they fail to acknowledge that Garcia already received due process at his third opportunity. He is owed no more.
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Abrego Garcia’s immigration case is not at all unique. Too many aliens ignore lawful processes to come to the U.S. or to follow it once here. Instead, they demand process if and when they are eventually caught by ICE.
The fact that the Left has made this criminal gang member their poster child for due process has only opened more Americans’ eyes to the complete abuse of our immigration system.
