The Department of Homeland Security told an immigration court this week that Kilmar Abrego Garcia is ineligible to apply for asylum because he is a member of the MS-13 gang, a claim his attorneys deny and for which he has not been criminally charged.
DHS released court filings Friday arguing that Abrego Garcia, 30, cannot receive asylum or the immigration relief he previously obtained because MS-13 was designated a foreign terrorist organization by the Trump administration and, the agency said, he is a member of that group. Abrego Garcia has filed a motion in Baltimore immigration court to reopen his 2019 immigration case and seek asylum again after his initial claim was denied as untimely.
Abrego Garcia became a focal point of the Trump administration's immigration policies after he was deported to El Salvador in March and later returned to the United States in June. U.S. authorities say they removed him in error; Abrego Garcia says he was beaten and psychologically tortured while held in an El Salvador prison, allegations that El Salvador's president, Nayib Bukele, has denied. Upon his return he was arrested on federal human smuggling charges in Tennessee; his lawyers have called those charges "preposterous and vindictive," and he has pleaded not guilty.
The MS-13 allegation stems from a 2019 incident in Prince George's County, Maryland, when local police detained Abrego Garcia after a confidential informant identified him and other men outside a Home Depot as MS-13 members based on clothing and tattoos. He was not charged by local authorities but was turned over to U.S. Immigration and Customs Enforcement and subsequently sought asylum. His 2019 asylum claim was denied because he filed more than a year after entering the United States, though he was granted protection from return to El Salvador on the ground that he had a well-founded fear of gang violence there.
DHS said in court filings it would seek to return Abrego Garcia to El Salvador if he successfully reopens his prior immigration case. "Kilmar Abrego Garcia’s lawyers are playing with fire," the department said in a statement accompanying the filings. "As a member of a designated foreign terrorist organization, MS-13, he is no longer eligible for his previous immigration relief."
Abrego Garcia and his legal team have consistently denied the MS-13 membership claim. His lead immigration attorney, Simon Sandoval-Moshenberg, said Friday that Abrego Garcia would likely obtain asylum if given a fair hearing. "The only reason he was denied asylum in 2019 was because he did not file within one year of entering the United States, a problem which the government has now solved," Sandoval-Moshenberg said. "If Mr. Abrego Garcia is allowed a fair trial in immigration court, there’s no way he’s not going to prevail on his claim for asylum."
Abrego Garcia's case highlights legal and procedural tensions in immigration enforcement. He originally fled El Salvador around 2011 because of threats of gang violence and joined family in Maryland. After the 2019 proceedings, he was released under federal supervision, obtained a federal work permit and, his attorneys say, worked as a sheet metal apprentice while checking in with ICE annually.
Immigration experts have said a successful asylum claim could eventually lead to lawful permanent residency and, later, citizenship. But reopening a closed removal case also carries risks. If the immigration court reopens the 2019 proceedings, DHS has said it would pursue returning Abrego Garcia to El Salvador, where he says he faced mistreatment during his March deportation.
The case follows broader actions by the administration: in February the Trump administration designated MS-13 as a foreign terrorist organization, a move that has informed DHS's stance in Abrego Garcia's filings. The immigration court in Baltimore will decide whether to reopen his 2019 case and hear his asylum claim, a determination that could affect both his criminal case in Tennessee and his immigration status.
As the litigation proceeds, both sides underscore high stakes for Abrego Garcia. DHS has framed the MS-13 designation as disqualifying, while his lawyers contend that he has never been charged with gang membership and that the untimeliness of his earlier asylum filing — not the merits of his fear of persecution — was the reason for denial. The immigration court's decision on reopening the 2019 case will determine whether those competing assertions are resolved through further legal proceedings.