Kilmar Abrego Garcia is seeking asylum in the United States while the federal government is seeking to remove him to the African nation of Eswatini, setting the stage for a potentially lengthy legal battle over whether he can be deported to a country that is not his homeland.
The 30-year-old, who was wrongfully deported to El Salvador in a case that became a focal point of President Donald Trump’s immigration crackdown, has filed a motion to reopen his 2019 immigration proceedings and seek asylum. The Trump administration told Abrego Garcia last week that it intends to remove him to Eswatini; earlier it had indicated Uganda was its intended destination. The government says it cannot legally return him to El Salvador.
Abrego Garcia has maintained he fled El Salvador around 2011 after local gang extortion and threats against him and his family, court documents show. He settled without documentation in Maryland to join a brother who had become a U.S. citizen. In 2019, a confidential informant told police that Abrego Garcia and other men waiting for day-labor work outside a Home Depot were members of the MS-13 gang, based on clothing and tattoos. Abrego Garcia was not charged with any gang-related offense, but was turned over to U.S. Immigration and Customs Enforcement.
An immigration judge previously found he had a well-founded fear of gang persecution in El Salvador and granted him protection from being returned there, but his initial asylum application was denied because it was filed more than a year after his entry into the United States. In the early days of the Trump administration’s second term, ICE deported Abrego Garcia to a notorious El Salvador prison in apparent violation of the judge’s order. A subsequent Supreme Court order required the government to return him to the United States; he was flown back in June and faces federal human-smuggling charges.
Abrego Garcia was released from a Tennessee jail to await trial last month and was taken into immigration custody three days later. He is currently detained at a Virginia facility. His lawyers have called the criminal case "preposterous and vindictive," and Abrego Garcia has told U.S. authorities he fears being sent to Eswatini because of the risk he would be persecuted there or subsequently expelled to El Salvador.
Under federal immigration law and agency practice, removal to a country that is not an individual’s country of nationality or last habitual residence requires a multi-step review. The process generally begins with a reasonable fear screening, conducted by an asylum officer, during which an individual can raise concerns that they would face persecution or torture if returned to a particular country. If an asylum officer finds no reasonable fear, the person may request review by an immigration judge, and from there appeal to the Board of Immigration Appeals and, ultimately, to the federal courts.
A letter from ICE responding to Abrego Garcia’s fears characterized his claims as lacking credibility, saying they were "hard to take seriously, especially given that you have claimed (through your attorneys) that you fear persecution or torture in at least 22 different countries." Immigration attorneys note, however, that an asylum claim would refocus proceedings on the danger Abrego Garcia says he faces in El Salvador.
"By the law of averages, you can’t win every case," said Andrew Rankin, a Memphis-based immigration attorney who is not part of Abrego Garcia’s legal team, describing the government’s potential strategy of attempting successive removals to other countries. Rankin said a successful asylum claim could provide a green card and a path to citizenship, but he warned that seeking asylum now carries a risk: if an immigration judge denies the motion to reopen and grant asylum, the judge could also remove the previous protection that barred return to El Salvador.
If Abrego Garcia’s motion to reopen is denied, he can appeal to the Board of Immigration Appeals and then to the U.S. Court of Appeals for the 4th Circuit in Richmond, Virginia. If the motion is granted, he would receive a hearing before an immigration judge at which both the government and his lawyers could present evidence and call witnesses.
Immigration judges are part of the Justice Department, and the Trump administration has replaced or fired judges appointed under the Biden administration as part of its immigration enforcement priorities. That structural integration has drawn criticism from advocates who say it exposes immigration adjudication to political pressure. Attorney General Pam Bondi has the authority to review or decide immigration cases as head of the Justice Department, although such interventions are rare.
César Cuauhtémoc García Hernández, an Ohio State University law professor, said that if Bondi were to weigh in directly, any ruling would likely be appealed to the 4th Circuit. "The smartest thing for Bondi to do is work with a good group of Justice Department lawyers who are going to explain the factual basis for your conclusion," he said.
Rankin said Abrego Garcia’s lawyers would likely portray any direct intervention by the attorney general as politically motivated. "It would destroy any credibility that this is a prosecution for the American people and not a prosecution for Donald Trump," he said.
The case has persisted as an emblematic dispute over removal policy, judicial protection and prosecutorial discretion. Abrego Garcia’s lawyers argue he was wrongfully removed in violation of an immigration judge’s order and that he faces real danger if returned to El Salvador. The government contends it has lawful authority to remove him and that Eswatini is an appropriate destination because travel and diplomatic arrangements make return to El Salvador untenable at the moment.
The outcome will hinge on a mix of administrative screenings, immigration court rulings, and potential appeals to the federal judiciary. Abrego Garcia’s motion to reopen his 2019 immigration case remains pending, and any decisions on asylum or third-country removal could be litigated for months or years as they move through the review process.