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Started By
Message
re: Withholding Order for Garcia applied to GUATEMALA not EL SALVADOR
Posted on 4/24/25 at 8:52 am to NC_Tigah
Posted on 4/24/25 at 8:52 am to NC_Tigah
Having spent WAY too much time on this, unless someone shows me evidence to the contrary, this is my conclusion.
The existence of a "Withholding Order preventing deportation to El Salvador," is an embarrassing lie. If it existed, I think we would have seen it by now.
In 2019, when this particular order was issued, it was KAG's relationship to his family that allegedly put KAG at risk of persecution. In 2019, KAG's family was in Guatemala.
Looking at the structure of the Memorandum of Decision and Order, the judge finds that KAG was protected from removal to Guatemala because of his family being there and the Bario 18 gang threatening them IN GUATEMALA. The next section discussing the threat of torture mentions only El Salvador because the judge has already decided that KAG couldn't be deported to Guatemala on other grounds. The finding that KAG would not be subject to torture in El Salvador is only necessary to reach if KAG COULD be deported to El Salvador.
So, the most logical interpretation of what the Immigration Judge ruled in 2019 was that KAG could not be deported to Guatemala AND that he specifically COULD be deported to El Salvador.
TLDR: There has never been a Withholding Order prohibiting KAG's deportation to El Salvador.
The existence of a "Withholding Order preventing deportation to El Salvador," is an embarrassing lie. If it existed, I think we would have seen it by now.
In 2019, when this particular order was issued, it was KAG's relationship to his family that allegedly put KAG at risk of persecution. In 2019, KAG's family was in Guatemala.
Looking at the structure of the Memorandum of Decision and Order, the judge finds that KAG was protected from removal to Guatemala because of his family being there and the Bario 18 gang threatening them IN GUATEMALA. The next section discussing the threat of torture mentions only El Salvador because the judge has already decided that KAG couldn't be deported to Guatemala on other grounds. The finding that KAG would not be subject to torture in El Salvador is only necessary to reach if KAG COULD be deported to El Salvador.
So, the most logical interpretation of what the Immigration Judge ruled in 2019 was that KAG could not be deported to Guatemala AND that he specifically COULD be deported to El Salvador.
TLDR: There has never been a Withholding Order prohibiting KAG's deportation to El Salvador.
This post was edited on 4/24/25 at 9:00 am
3
Posted on 4/24/25 at 8:57 am to IvoryBillMatt
quote:quite a journey you've been on
TLDR: There has never been a Withholding Order prohibiting KAG's deportation to El Salvador.
Posted on 4/24/25 at 9:01 am to IvoryBillMatt
quote:Thanks for your time and efforts on this Ivory.
IvoryBillMatt
Posted on 4/24/25 at 9:04 am to IvoryBillMatt
A 589 form requires the applicant to indicate their present nationality and any addresses over the last five years (which do not have to align with the country to where you fear persecution. The order adjudicates that Abrego Garcia is a citizen of El Salvador. Form 1-589 has sections related to home countries (Part B.B), and other countries. The removal proceeding should have been related to a country, and thus the adjudication would be an order related to the country under discussion.
There has been an issue regarding notification of removal to third countries and due process rights. In 2021, Vivek Suri appears to indicate to Justice Kagan that notice will be given to a non-citizen if a third country is chosen. Some prior jurisprudence indicates that such notice is required . This Nila Paper discusses it in more detail. With just regard to due process of notice for removal to a third counrty, these are the relevant cases discussed
There has been an issue regarding notification of removal to third countries and due process rights. In 2021, Vivek Suri appears to indicate to Justice Kagan that notice will be given to a non-citizen if a third country is chosen. Some prior jurisprudence indicates that such notice is required . This Nila Paper discusses it in more detail. With just regard to due process of notice for removal to a third counrty, these are the relevant cases discussed
quote:Id.
Andriasian v. INS, 180 F.3d 1033, 1041 (9th Cir. 1999) (“Failing to notify individuals who are subject to deportation that they have the right to apply . . . for withholding of deportation to the country to which they will be deported violates both INS regulations and theconstitutional right to due process.”); Kossov v. INS, 132 F.3d 405, 408-09 (7th Cir. 1998) (failure to provide notice of and hearing on deportation to third country was a “fundamental failure of due process”); see also Hadera v. Gonzales, 494 F.3d 1154, 1159 (9th Cir. 2007); El Himri v. Ashcroft, 378 F.3d 932, 938 (9th Cir. 2004); cf. Protsenko v. U.S. Att’y Gen., 149 F. App’x 947, 953 (11th Cir. 2005) (per curiam) (failure to give “proper notice of a potential country of deportation” and a subsequent order of removal to that country may constitute a violation of due process, citing Kossov).
Posted on 4/24/25 at 9:05 am to UncleFestersLegs
quote:
quite a journey you've been on
Lol. Thanks? I expected SOME attorney from DOJ or some judge or justices law clerk would have done the research on this.
Maybe they have and found something different...but I sure haven't seen it.
I just assumed that SOMEONE in authority had already looked for and found a specific order barring deportation to El Salvador.
Posted on 4/24/25 at 9:10 am to MintBerry Crunch
quote:
His CAT claims failed because for the CAT, the torture must be by government. He failed to show it.
Yes, and his asylee claim was also denied because he filed it too late. However, his INA§ 241(b)(3) application was granted. You can get the status adjudication at EOIR Case Status. Abrego-Garcia's A number is 201577119
Posted on 4/24/25 at 9:12 am to dukkbill
quote:
The removal proceeding should have been related to a country, and thus the adjudication would be an order related to the country under discussion.
Much appreciated. Has KAG's 589 application been made public?
You seem knowledgeable. Do you think there was a withholding order barring KAG's deportation to El Salvador?
Posted on 4/24/25 at 9:23 am to dukkbill
Thanks, again. This is all I could find:
If you have time, save me the time of looking up the statute you cited. Do you interpret that to mean that the Withholding Order completely barred deportation of KAG...and that the details as to his "deportability" to specific countries are irrelevant?
If you have time, save me the time of looking up the statute you cited. Do you interpret that to mean that the Withholding Order completely barred deportation of KAG...and that the details as to his "deportability" to specific countries are irrelevant?
Posted on 4/24/25 at 9:26 am to IvoryBillMatt
quote:
The existence of a "Withholding Order preventing deportation to El Salvador," is an embarrassing lie. If it existed, I think we would have seen it by now.
I took the time to listen to the first part of the video. Interesting stuff.
As I stated before regarding the Withholding order, I would liked to have seen a country. Since the order references his application I would like to see his application to which country he was trying to avoid. What i find odd is neither party is pointing to his application. The one thing that would make since on why is that the application is also silent as to which country he wanted to avoid. What is also odd is neither party has filed a motion with the immigration judge seeking clarification on what country.
If I was Bondi, I would instruct the US Attorney in Tennessee to seek an indictment from a Grand Jury for human trafficking. Then get a no bail order from the Judge. Then let KAG know that if he is returned he will be held in prison until his trial and if found guilty he will do his time then will be deported. He will never be free in the US again.
Posted on 4/24/25 at 9:33 am to IvoryBillMatt
I actually hope you are wrong. Because the alternative is that the DOJ is incompetent as shite.
The first mention of an "administrative error" was the INS field officer, or whatever he is called, writing in an affidavit, right? If so, do you remember or know what he was referencing in making that claim?\
{EDIT]
OR - this was all a set up to make the Democrats look like the illegal alien lovers they are.
The first mention of an "administrative error" was the INS field officer, or whatever he is called, writing in an affidavit, right? If so, do you remember or know what he was referencing in making that claim?\
{EDIT]
OR - this was all a set up to make the Democrats look like the illegal alien lovers they are.
This post was edited on 4/24/25 at 9:35 am
Posted on 4/24/25 at 9:41 am to IvoryBillMatt
quote:
If you have time, save me the time of looking up the statute you cited. Do you interpret that to mean that the Withholding Order completely barred deportation of KAG...and that the details as to his "deportability" to specific countries are irrelevant?
The 1231(b)(3) is non-procedural and merely states the grounds for the withholding order. 1231(b)(2) sets out the countries for removal. In short the alien can designate a country and if they are not removed to that country the AG can remove to:
quote:
(D) Alternative country
If an alien is not removed to a country designated under subparagraph (A)(i), the Attorney General shall remove the alien to a country of which the alien is a subject, national, or citizen unless the government of the country-
(i) does not inform the Attorney General or the alien finally, within 30 days after the date the Attorney General first inquires or within another period of time the Attorney General decides is reasonable, whether the government will accept the alien into the country; or
(ii) is not willing to accept the alien into the country.
(E) Additional removal countries
If an alien is not removed to a country under the previous subparagraphs of this paragraph, the Attorney General shall remove the alien to any of the following countries:
(i) The country from which the alien was admitted to the United States.
(ii) The country in which is located the foreign port from which the alien left for the United States or for a foreign territory contiguous to the United States.
(iii) A country in which the alien resided before the alien entered the country from which the alien entered the United States.
(iv) The country in which the alien was born.
(v) The country that had sovereignty over the alien's birthplace when the alien was born.
(vi) The country in which the alien's birthplace is located when the alien is ordered removed.
(vii) If impracticable, inadvisable, or impossible to remove the alien to each country described in a previous clause of this subparagraph, another country whose government will accept the alien into that country.
8 USC 1231
Thus, while a potential removal to Guatemala could have been the subject of the proceeding, its unlikely that was the subject of the I-589 filing and hearing. Whether or not the government needs to provide due process if they select a country pursuant to 8 USC 1231(b)(2)(e)(vii) is an open question, but appears to be against current policy. In total, 808bass's conclusion that the use of "Guatemala" was a scrivener's error based on the reuse of older opinions seems to be well supported.
ETA: Missed this
quote:
Do you interpret that to mean that the Withholding Order completely barred deportation of KAG...and that the details as to his "deportability" to specific countries are irrelevant?
No, I think the order likely applied to a deportation to El Salvador. That is the balance of the testimony with no mention of Guatemala until the IJ's conclusion. Further, for whatever my opinion is worth, I believe the AG could deport to a country like Mexico; however, whether they would have to give notice with the opportunity for the Abrego Garcia to submit an 1-589 to Mexico is an open question. The Asst. Solicitor's testimony in Johnson v. Guzman Chavez, 594 U.S. 523 (2021) seems to imply the United States will give notice if they elect another country.
This post was edited on 4/24/25 at 9:47 am
Posted on 4/24/25 at 9:42 am to the808bass
quote:
reading it wrong
Well, it's still better than 99% of his NPC cohort. Most of them can't read
Posted on 4/24/25 at 9:45 am to dukkbill
quote:
In total, 808bass's conclusion that the use of "Guatemala" was a scrivener's error based on the reuse of older opinions seems to be well supported.
Was it corrected?
If not, then the error stands. It is not the government's job in this instance to correct the error - it is Garcia.
If he never filed something to correct the error, then it is not an error.
Posted on 4/24/25 at 9:48 am to JimEverett
quote:
I actually hope you are wrong. Because the alternative is that the DOJ is incompetent as shite.
I hope I'm wrong also for the same reason...and I certainly could be wrong.
From what Duckbill posted I gather there is a theory that the existence of a withholding order entitles the illegal alien to notice and a hearing before they are deported...anywhere.
I also infer from what Duckbill posted that KAG's application for a withholding order could ONLY be regarding the country of his citizenship: El Salvador. If that's true, the failure of the DOJ to appeal the 2019 order was incompetence, because the reasons given by the judge would only justify withholding deportation to GUATEMALA.
NONE of this changes the excellent outcome already achieved: KAG has been deported and he will never live in the US again. I have invested WAY too much time here, but if the facts alleged by KAG were true, why didn't he apply for asylum in the US in a timely manner?
This post was edited on 4/24/25 at 9:52 am
Posted on 4/24/25 at 9:53 am to JimEverett
This is the order:
quote:
It is hereby ordered that:
I. the Respondent's application for asylum pursuant to INA§ 208 is DENIED;
IL the Respondent's application for withholding of removal pursuant to INA §24l(b)(3) is GRANTED; and
III. the Respondent's application for withholding of removal under the Convention Against Torture is DENIED;
The term Guatemala appears in the conclusion section of the opinion noting DHS failure to overcome the arguments made by Abrego Garcia.
Posted on 4/24/25 at 10:09 am to IvoryBillMatt
quote:
From what Duckbill posted I gather there is a theory that the existence of a withholding order entitles the illegal alien to notice and a hearing before they are deported...anywhere.
I edited my earlier response to address your specific question on this point. It's the Immigration bar's position based on the Circuit Court opinions and the testimony of the Vivek Suri, that notice of the country of removal with time to file another 1-589 is a due process right. It doesn't mean that is the law of all the land. It also appears that Kagan would support a due process right and that the administration has been providing such notice in the past.
If I were to opine, I think there was an administrative error. Its likely that all noncitizens that were subject to a removal order are in the process of being round up and deported. The current administration is prioritizing citizens of El Salvador with probable ties to gang activity. There probably aren't many of them that are subject to a withholding order, so this deportation just fell through the cracks.
quote:
If that's true, the failure of the DOJ to appeal the 2019 order was incompetence, because the reasons given by the judge would only justify withholding deportation to GUATEMALA.
This is the only part where I disagree. All the cited testimony related to El Salvador. There was nothing in the judges order citing any testimony or proceeding related to Guatemala.
The judge's reference to "Guatemala" was in relation to the governments ability to rebut the noncitizens testimony, namely that conditions have changed in the relevant country. By my count it only appears in three places. First, on p.4 of the order (p. 40 of linked PDF) where the court states that the gang still threatens the family in Guatemala. Nevertheless, the previous page establishes his parents domicile in Los Andes, which is in El Salvador. Indeed, they note on multiple occasions that the parents only moved 15 minutes away. This appears to be the start of the error which is then repeated two other times in reference to the Govt.'s burden in rebutting the presumption that past persecution provides a presumption of future persecution.
This post was edited on 4/24/25 at 10:10 am
Posted on 4/24/25 at 10:16 am to dukkbill
quote:
The term Guatemala appears in the conclusion section of the opinion noting DHS failure to overcome the arguments made by Abrego Garcia.
Thanks
Do we have a copy of his Application for Withholding? that would make it 100% clear. But I get what you are saying and are most likely right, because Guatemala would not make a lot of sense, even if it is a little confusing.
Posted on 4/24/25 at 10:21 am to dukkbill
do you practice immigration law, dukkbill?
Posted on 4/24/25 at 10:38 am to dukkbill
quote:
By my count it only appears in three places.
That's what I came up with also. I agree that the footnote saying the family moves were not very far implies that they remained in El Salvador.
I was a law clerk for a federal district judge (Article III), so it's hard to believe that this critical mistake could be repeated so often in the same official document. I understand that Article II judges are under more demanding time crunches, but this is still hard to believe especially in light of the Judge's willingness to correct a less important mistake (a date) with a stroke of a pen.
It's hard to imagine that thought process/conversation:
Clerk: "Judge, we made a mistake. We got a date wrong."
Judge: "No problem, gotta pen? Any other mistakes we might have made, like confusing one country with another?"
Clerk: "I dunno, have you read it? I'm sure it's fine. And, really, those countries are all pretty similar."
Posted on 4/24/25 at 10:51 am to dukkbill
quote:
I edited my earlier response to address your specific question on this point.
Thanks Duckbill for sharing your knowledge and for your thoughtful responses.
I'm 68% convinced that you and 808bass are right about the references to Guatemala being in error.
I am also 100% convinced that the basis of the withholding order was flimsy. The threats against KAG were made as part of an extortion racket involving his mother's business...which had long since ceased to exist at that point.
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