Abrego Garcia and Due Process: What Congress Can Do in 2027
The short answer
In March 2025, the federal government arrested Kilmar Armando Abrego Garcia in Maryland and flew him to a maximum-security prison in El Salvador, even though an immigration judge's 2019 order barred sending him there. The government admitted the removal was illegal. A unanimous Supreme Court said the government had to "facilitate" his return, and a federal judge later found the government's refusal to answer the court's questions "willful" and in "bad faith." When he was finally brought back in June 2025, it was to face criminal charges, and on May 22, 2026 a federal judge dismissed those charges, finding the prosecution was presumptively vindictive and "an abuse of prosecuting power."
You do not have to like Mr. Abrego Garcia, or agree with anyone's immigration policy, to see the problem. If the government can send a person to a foreign prison without a hearing, ignore a court's questions about it, and then prosecute him for winning in court, those same tools can be used on anyone, including U.S. citizens. Immigration agents have already detained hundreds of American citizens, and federal judges have found American children deported with no meaningful process. The Fifth Amendment protects every "person," and its protection is only as strong as the willingness of all three branches to enforce it.
The Congress elected on November 3, 2026 will be seated on January 3, 2027. Whichever party holds the majority, it can investigate what happened, preserve the record, and pass laws so that it does not happen again. Country over Party. Patriot over Partisan.
What happened: a timeline
Mr. Abrego Garcia, a citizen of El Salvador, entered the United States without inspection around 2011 as a teenager fleeing gang threats. He lived in Maryland, married a U.S. citizen, and is the father of a disabled U.S.-citizen child. In 2019, an immigration judge found he faced a "clear probability" of persecution in El Salvador and granted him withholding of removal, which barred the government from sending him there. The government did not appeal that order. The timeline below runs newest first.
Date | Event |
Oct. 6, 2026 | A Maryland hearing on the government's effort to deport him to Liberia, a country he has no connection to, is canceled without explanation. A court order barring that removal remains in place. Costa Rica had agreed to accept him. |
Aug. 2026 | The Justice Department appeals the dismissal of the criminal case to the Sixth Circuit. |
May 22, 2026 | Judge Waverly D. Crenshaw Jr. (M.D. Tenn.) dismisses the indictment, finding the government failed to rebut a presumption of vindictive prosecution. |
Feb. 26, 2026 | Evidentiary hearing on vindictive prosecution in Nashville. |
Dec. 11, 2025 | Judge Paula Xinis (D. Md.) orders his release from ICE custody, finding "no such order of removal exists" for him. |
Aug. 2025 | Released pending trial; ICE detains him days later and names Uganda, Eswatini, Ghana and Liberia as possible destinations. |
June 6, 2025 | Returned to the United States to face a two-count human smuggling indictment unsealed in Tennessee. |
May 21, 2025 | Grand jury in Nashville indicts him. The Criminal Division Chief who had recommended against charging resigns the same day. |
Apr. 22, 2025 | Judge Xinis finds the government's discovery objections reflect a "willful and bad faith refusal to comply." |
Apr. 17, 2025 | Fourth Circuit (Wilkinson, King, Thacker, JJ.) unanimously denies the government's emergency stay and mandamus request. The same day, a closed federal investigation of a 2022 traffic stop is reopened. |
Apr. 15, 2025 | Judge Xinis orders expedited discovery after finding the government "appear[s] to have done nothing" to facilitate his return. |
Apr. 10, 2025 | Supreme Court, with no noted dissent, holds the order "properly requires the Government to 'facilitate'" his release and return. |
Apr. 4, 2025 | Judge Xinis orders the government to facilitate and effectuate his return. |
Apr. 1, 2025 | Homeland Security Investigations closes its investigation into him, stating it had "accomplished all goals for this case." |
Mar. 31, 2025 | Government tells the court the removal was an "administrative error." |
Mar. 24, 2025 | His wife files suit in federal court in Maryland. |
Mar. 15, 2025 | Flown to El Salvador's CECOT prison on a flight that left alongside Alien Enemies Act flights. |
Mar. 12, 2025 | Arrested by ICE in Maryland while driving with his young son. |
Oct. 10, 2019 | Immigration judge grants withholding of removal to El Salvador. |
What the courts said
Judges appointed by Presidents of both parties reached the same conclusion at every stage: the removal was illegal, the government had to help fix it, and the courts would not accept the claim that nothing could be done.
The Supreme Court (April 10, 2025)
The Court's order, with no noted dissent, began with the government's own admission: Abrego Garcia "was subject to a withholding order forbidding his removal to El Salvador, and... the removal to El Salvador was therefore illegal." It held the district court "properly requires the Government to 'facilitate' Abrego Garcia's release from custody in El Salvador and to ensure that his case is handled as it would have been had he not been improperly sent to El Salvador." It also asked the lower court to clarify the word "effectuate," "with due regard for the deference owed to the Executive Branch in the conduct of foreign affairs," and told the government to "be prepared to share what it can concerning the steps it has taken."
In a separate statement, Justice Sotomayor, joined by Justices Kagan and Jackson, warned that the government's argument "implies that it could deport and incarcerate any person, including U.S. citizens, without legal consequence, so long as it does so before a court can intervene."
The Fourth Circuit (April 17, 2025)
Judge J. Harvie Wilkinson III, appointed by President Reagan, wrote for a unanimous panel: "The government is asserting a right to stash away residents of this country in foreign prisons without the semblance of due process that is the foundation of our constitutional order." On the government's MS-13 allegation, he wrote: "Perhaps, but perhaps not. Regardless, he is still entitled to due process." And he asked the question at the heart of this post: "If today the Executive claims the right to deport without due process and in disregard of court orders, what assurance will there be tomorrow that it will not deport American citizens and then disclaim responsibility to bring them home?"
The District of Maryland: discovery and compliance
After the Supreme Court ruled, Judge Xinis ordered the government to take "all available steps" to facilitate the return and to explain what it had done. The record shows how that went:
April 15, 2025: The court found that "the record reflects that Defendants have done nothing at all" and ordered expedited discovery, including depositions of officials.
April 21, 2025: The plaintiffs reported that the government's document production consisted "entirely of public filings," copies of the plaintiffs' own requests, and two cover emails, and that it invoked the state secrets privilege 13 times in response to 15 interrogatories without a formal claim.
April 22, 2025: The court overruled the government's objections, finding they "reflect a willful and bad faith refusal to comply with discovery obligations," and that naming only two officials as involved in the removal was "willful and intentional noncompliance."
April 30, 2025: After a brief stay, the court denied the government's motion to stop discovery and set a new schedule.
The court raised the possibility of contempt but did not hold anyone in contempt before Mr. Abrego Garcia was returned in June 2025, when the government argued the case was moot.
The Middle District of Tennessee: vindictive prosecution (May 22, 2026)
Judge Crenshaw opened his opinion with Attorney General Robert H. Jackson's 1940 warning against prosecutors who "pick people that he thinks he should get, rather than pick cases that need to be prosecuted." After an evidentiary hearing, he found:
A federal investigation of a 2022 Tennessee traffic stop was closed on April 1, 2025 as having "accomplished all goals," and reopened April 17, 2025, days after the Supreme Court ruled.
The then-Deputy Attorney General publicly said the government began investigating after "a judge in Maryland... questioned" the deportation, and an aide in his office closely supervised the case through indictment.
The local Criminal Division Chief wrote a memo recommending against charging and resigned the day the indictment was returned.
"[A]bsent Abrego's successful lawsuit challenging his removal to El Salvador, the Government would not have brought this prosecution."
The court stressed that a vindictive prosecution claim "is independent of a defendant's guilt or innocence." The ruling does not decide whether the smuggling allegations are true. It decides that the government may not use its charging power to punish someone for going to court. The government has appealed.
How this could reach U.S. citizens
It is tempting to think this case is only about noncitizens. It is not. The government's legal position, the tools it used, and the people already harmed all reach American citizens.
The legal theory has no citizenship limit. The government argued that once a person is in a foreign prison, American courts cannot order relief. Justice Sotomayor wrote that this argument "implies that it could deport and incarcerate any person, including U.S. citizens, without legal consequence, so long as it does so before a court can intervene." Judge Wilkinson, a Reagan appointee, asked what assurance there would be "that it will not deport American citizens and then disclaim responsibility to bring them home." In April 2025, the President publicly raised sending violent American criminals to foreign prisons; the Fourth Circuit cited those remarks in its order.
Without a hearing, a citizen has no way to prove citizenship. Agents decide on the spot who they believe is deportable. A hearing is where mistakes are caught. ProPublica reported in October 2026 that immigration agents had detained 506 U.S. citizens, including at least 70 children and teenagers; 36 were held at least a day without being able to reach a lawyer or family, and roughly a dozen citizens, mostly children, were deported.
American children have already been removed. In April 2025, U.S. District Judge Terry Doughty, a Trump appointee, wrote that a two-year-old U.S. citizen appeared to have been deported to Honduras "with no meaningful process." When the judge called government counsel to ask, the family was already over the Gulf of Mexico.
Citizens in this very case were harmed. Mr. Abrego Garcia's wife and five-year-old son are U.S. citizens. According to the complaint, the child was in the back seat when his father was arrested, and his mother was told to pick him up or he would be handed to child services. A U.S.-citizen child's father was sent to a foreign prison with no hearing.
Retaliatory prosecution uses laws that apply to everyone. The court found the government reopened a closed criminal investigation because a man won his lawsuit. Criminal charges are not limited to immigrants. If the government can use its charging power to punish a person for going to court, every citizen who sues a federal agency is exposed to the same risk.
The safeguard against all of this is the same: notice and a hearing before a judge, before the government acts. That protection only works if it is enforced for everyone, because the moment it becomes optional for some people, no one can be sure they are not next.
The law in plain English
"No person" means no person
The Fifth Amendment says: "No person shall... be deprived of life, liberty, or property, without due process of law." It says person, not citizen. The Supreme Court has held for well over a century that it protects noncitizens in the United States, whether their presence is lawful or not: Yick Wo v. Hopkins (1886), Wong Wing v. United States (1896), Mathews v. Diaz (1976), Plyler v. Doe (1982), and Reno v. Flores (1993) ("the Fifth Amendment entitles aliens to due process of law in deportation proceedings"). At a minimum, due process means notice and a meaningful opportunity to be heard before the government acts.
Withholding of removal is a court order, and there is a process to change it
Federal law, 8 U.S.C. § 1231(b)(3)(A), bars removing a person to a country where an immigration judge has found his life or freedom would be threatened. The protection is country-specific: he could lawfully be sent to a different country. If the government believes the protection should end, the regulations let it reopen the case, and the government must prove by a preponderance of the evidence that the protection no longer applies. That process existed and was not used.
Due process is a separation-of-powers guarantee, even on the narrowest reading
You do not have to accept the modern, broad reading of the Due Process Clause to see the violation here. In their 2022 Virginia Law Review article, "The Original Meaning of 'Due Process of Law' in the Fifth Amendment," Max Crema and Lawrence B. Solum argue that the Clause's original meaning is narrower than today's doctrine. But even on that originalist reading, the Clause "requires that the executive secure the judiciary's approval before depriving an individual of their rights," so that any deprivation "requires the concurrence of all three branches. The legislature must authorize it, the executive must pursue it, and the judiciary must approve it." Executive officials could hold someone briefly "but only for as long as it took to bring the matter before a judge." Removing a person to a foreign prison before any judge could act is the very thing the Clause was written to stop.
A right without a remedy is a promise without teeth
Marbury v. Madison (1803) declared that "every right, when withheld, must have a remedy." In "Constitutional Remedies: In One Era and Out the Other," 136 Harvard Law Review 1300 (2023), Professor Richard H. Fallon Jr. shows that the link between rights and remedies has always been fragile and has grown weaker in recent decisions. The government's position in this case, that once a person is in a foreign prison no American court can help, would have cut that link entirely. Habeas corpus, protected by Article I, Section 9, exists for exactly this reason: to require the government to justify a person's detention to a judge.
The government may not punish people for going to court
Under Blackledge v. Perry (1974) and United States v. Goodwin (1982), the government may not bring charges to punish someone for exercising a legal right. When the record shows a "realistic likelihood" of vindictiveness, the burden shifts to the government to explain itself. That is the rule Judge Crenshaw applied.
The common thread: the Executive acts through law
The same principle runs through our analysis of domestic military deployments and the Posse Comitatus Act: the President has enormous power, but the Constitution requires that power to flow through laws Congress writes and courts can review. When an agency can detain, remove, deploy or prosecute without a court's approval, and then argue that no court can review it afterward, separation of powers has broken down.
The government's side, fairly stated
The government made serious arguments, and a fair analysis should state them at their strongest:
Foreign affairs belong to the President. In its April 16, 2025 emergency motion to the Fourth Circuit, the government argued that Article II gives the Executive "the exclusive power over foreign relations," that federal courts "do not have the authority to press-gang the President or his agents into taking any particular act of diplomacy," and that "facilitate" has long meant removing domestic barriers to a person's return, not pressuring a foreign country. The Supreme Court itself said lower courts must give "due regard for the deference owed to the Executive Branch in the conduct of foreign affairs."
The gang allegation. The government relied on a 2019 Prince George's County police field interview sheet that labeled Mr. Abrego Garcia an MS-13 member, citing a confidential informant and his clothing. In 2019, an immigration judge relied on that allegation in denying him bond, and the Board of Immigration Appeals affirmed. The government argued that MS-13's 2025 designation as a foreign terrorist organization ended his eligibility for withholding.
The smuggling allegations. A grand jury returned an indictment, and a cooperating witness told investigators Mr. Abrego Garcia had transported migrants for pay over several years. The government maintains the prosecution was a good-faith decision by a career prosecutor and has appealed the dismissal.
The scale of enforcement. Officials have argued that the immigration system cannot function if every removal requires lengthy litigation.
Here is where those arguments run into the record. The gang allegation was never tested in a criminal court; the same 2019 ICE paperwork recorded "no criminal history," and the bond rulings did not change the immigration judge's later grant of protection, which the government never appealed. The regulations gave the government a way to end that protection by proving its case to a judge, and it skipped that step. The Supreme Court did not adopt the government's narrow reading of "facilitate." And the vindictive prosecution ruling does not say Mr. Abrego Garcia is innocent; it says the government cannot use its charging power to punish a person for winning in court. All of these disputes are exactly what due process exists to resolve: in front of a judge, before the government acts.
What a new Congress can do after January 3, 2027
Courts decide one case at a time, and only after the harm is done. Congress writes the immigration laws, funds the agencies that enforce them, and confirms the officials who run them. In 2025, requests by some members to visit Mr. Abrego Garcia in El Salvador as an official delegation were denied, and the central questions were left largely to the courts. Whichever party holds the majority in the 120th Congress, it has these tools:
1. Investigate what happened
Hearings in the Judiciary, Homeland Security and Oversight committees on how a person protected by a court order was placed on a flight to CECOT, who approved it, and what was done to correct it.
Subpoenas for the agreement with El Salvador to house U.S. deportees, the records the government withheld in discovery, and the communications behind the reopened 2022 investigation.
Inspector General and GAO reviews of removal flights, the use of privilege claims in litigation, and the Justice Department's handling of charging decisions in politically prominent cases.
Whistleblower protection. A senior Justice Department attorney who acknowledged in court that the removal was an error was placed on leave and fired, and later filed a whistleblower complaint. Congress can examine that and strengthen protections for government lawyers who tell courts the truth.
2. Change the law so it does not happen again
Require notice and a hearing before any removal to a third country, and a minimum waiting period so a person can reach a court.
Require the government to verify protection orders (withholding of removal and Convention Against Torture protection) before any removal flight departs, with a sworn certification.
Codify the duty to return people removed in violation of law or a court order, building on ICE's own 2012 policy directive on facilitating return.
Limit transfers to foreign prisons of people removed from the United States, and require Congress to be notified of any agreement that pays a foreign government to detain them.
Strengthen compliance with court orders by requiring agencies to report to Congress whenever a court finds bad-faith noncompliance.
3. Use the power of the purse
No money leaves the Treasury without an appropriation. Congress can condition immigration enforcement and detention funding on compliance with these rules, and can require a public accounting of what was paid to El Salvador.
4. Preserve the record
Preservation letters to DHS, ICE, the State Department and the Justice Department can make sure the records behind these decisions survive, so that future Congresses, courts and voters can judge them on facts.
The honest limits
Any new law faces a possible veto, which takes two-thirds of both chambers to override. Subpoenas may be met with executive privilege claims and slow court fights. Congress cannot reverse a court judgment or prosecute anyone. But hearings, subpoenas, Inspector General referrals, preservation letters and funding conditions in must-pass bills do not require a veto-proof majority. They require a Congress willing to act as a co-equal branch, regardless of which party holds the White House.
Why every American should care
The rule applies to everyone or it protects no one. If the government can skip the hearing for a person it says is dangerous, it is the government, not a judge, deciding who is dangerous. Justice Sotomayor and Judge Wilkinson, from opposite ends of the judicial spectrum, both warned that the same logic would reach U.S. citizens.
Errors happen, and due process is how they get caught. The government called this removal an "administrative error." Notice and a hearing are how mistakes are found before they become irreversible, whether the mistake is a deportation, a frozen bank account, a lost license or a wrongful arrest.
Going to court must not be punished. A federal judge found that criminal charges followed because this man won his lawsuit. Every American who sues a government agency, challenges a tax assessment or contests a permit depends on the same protection against retaliation.
Court orders mean nothing if they are optional. A judge found the government's refusal to answer basic questions about its compliance "willful" and in "bad faith." If one administration can slow-walk a court, the next one, of either party, can too.
Your tax dollars paid for it. The United States paid El Salvador millions of dollars to hold people sent to CECOT, and then spent more than a year litigating a removal the government admitted was illegal.
Separation of powers is how liberty is protected. The Framers divided power so that no single official could accuse, judge and punish. Due process is that design applied to one person at a time.
Country over Party. Patriot over Partisan. You can support strict immigration enforcement and still insist that it be done according to law. Those are not opposing positions; the second is what makes the first legitimate.
Frequently asked questions
Who is Kilmar Abrego Garcia? A citizen of El Salvador who lived in Maryland with his U.S.-citizen wife and child. In 2019, an immigration judge barred his removal to El Salvador. In March 2025, the government sent him there anyway, to the CECOT prison, and later admitted the removal was illegal.
Does the Fifth Amendment protect noncitizens? Yes. The Due Process Clause protects every "person" in the United States. The Supreme Court has said so since at least 1886, and reaffirmed in Reno v. Flores (1993) that it applies in deportation proceedings.
Could this happen to a U.S. citizen? It already has. ProPublica reported in October 2026 that immigration agents had detained 506 U.S. citizens, and roughly a dozen citizens, mostly children, were deported. A federal judge found in April 2025 that a two-year-old U.S. citizen appeared to have been deported to Honduras "with no meaningful process." A hearing before a judge is how a citizen proves citizenship before it is too late.
What did the Supreme Court decide in Noem v. Abrego Garcia? On April 10, 2025, in No. 24A949, the Court held the government must "facilitate" his release from El Salvador and ensure his case is handled as it would have been had he not been improperly removed, while asking the lower court to clarify its order with deference to the Executive on foreign affairs.
Why were the criminal charges dismissed? On May 22, 2026, Judge Waverly D. Crenshaw Jr. found the government failed to rebut a presumption of vindictive prosecution, because a closed investigation was reopened after the Supreme Court ruled and senior Justice Department officials drove the case. The ruling does not decide guilt or innocence. The government has appealed.
Where is the case now? As of October 2026, he is out of custody. A federal court order bars ICE from detaining him or removing him to Liberia while the government seeks to end that order. Costa Rica had agreed to accept him.
What is vindictive prosecution? Charging someone to punish them for exercising a legal right, such as filing a lawsuit or winning an appeal. It violates the Due Process Clause regardless of whether the person committed the underlying offense.
What can Congress do? Hold hearings, issue subpoenas, request Inspector General and GAO reviews, preserve records, require notice and hearings before third-country removals, codify the duty to return people removed unlawfully, and condition enforcement funding on compliance with the law.
Is this a partisan issue? It should not be. Due process protects every American from every administration. The judges who ruled against the government in this case were appointed by Presidents of both parties.
Stay informed and get involved
The Biazzo Law Government Oversight Program files amicus briefs, pursues Freedom of Information Act litigation, and publishes plain-English analysis so that every American, regardless of party, can hold every branch of government to the Constitution. Follow the program, share this analysis, and ask every candidate for Congress one question: will you use Congress's constitutional powers to make sure every administration, including one from your own party, follows the law and obeys the courts?
Country over Party. Patriot over Partisan.
This article is for general informational and educational purposes only and is not legal advice. Reading it does not create an attorney-client relationship. Biazzo Law, PLLC does not represent any party in the cases discussed. The allegations against Mr. Abrego Garcia have not been proven in court, and the dismissal of the criminal case is on appeal. Litigation described here is ongoing, and later developments may change the analysis. Attorney advertising.
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