Declaring Kilmar Abrego Garcia an official gang member required checking only two boxes on a law enforcement worksheet.
But the Prince George’s County Police Department checked five boxes on a gang worksheet for Abrego Garcia when he was arrested in 2019.
It checked a box because he was arrested with a known gang member. Another for dressing like one. And then three more because a police source called him a gang member, he had been seen with a known gang member and he had been hanging out where they frequently go.
That designation, once embraced by an immigration judge, last month helped send Abrego Garcia to a notorious prison in El Salvador through a deportation the Trump administration admitted later was an administrative mistake.
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It was a mistake because another judge later had granted him “withholding of removal” status. The status should have kept him in the U.S. and was based on fears he would face persecution from local gangs if he had been deported to his native El Salvador.
The Trump administration and El Salvador’s president have said they don’t know how the 29-year-old husband and father who was living in Beltsville can now be returned to Maryland despite the U.S. Supreme Court’s order to do so. On a trip to El Salvador this week, U.S. Sen. Chris Van Hollen, a Democrat, has so far failed to find a way to get Abrego Garcia returned home.
But on Thursday night Van Hollen posted a photo of him sitting at a table with the man on the social media site X.
“I said my main goal of this trip was to meet with Kilmar,” Van Hollen wrote of meeting Abrego Garcia. “Tonight I had that chance. I have called his wife, Jennifer, to pass along his message of love. I look forward to providing a full update upon my return.”
President Donald Trump meets with President Nayib Bukele of El Salvador at the White House this week. (Win McNamee/Getty Images)
Maryland Sen. Chris Van Hollen speaks to the press in La Libertad, El Salvador, where he discussed the detention of Kilmar Abrego Garcia, a Salvadoran citizen who was living in Maryland and deported to El Salvador by the Trump administration. (Salvador Melendez/AP)
As a result of the wrongful deportation, the federal Immigration and Customs Enforcement’s gang protocols are coming under new scrutiny as undocumented immigrants like Abrego Garcia are facing threats from a Trump administration focused on removing those immigrants they say engage in criminal activity.
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Some lawyers, advocates and experts say ICE’s system of gang identifications has long been severely flawed because it relies on racial profiling and circumstantial evidence that give attorneys the tall task of proving a negative, or, in an extreme case like Abrego Garcia’s, lead to unlawful deportation.
“Innocent until proven guilty doesn’t apply in the immigration court,” said Atenas Burrola Estrada, a deputy program director at the Amica Center for Immigrant Rights, a nonprofit organization that provides legal services to ICE detainees.
In Abrego Garcia’s case, police outlined their evidence for determining his gang affiliation in 2019 when he was first detained.
He was loitering in a Home Depot parking lot wearing a Chicago Bulls hat and a hoodie that displayed rolls of money covering the eyes, ears and mouths of different presidents. In addition, a confidential informant said Abrego Garcia was a member of MS-13’s Western clique.
The arresting officer wrote that two water bottles filled with cannabis were found on scene but didn’t attribute it to any of the four men involved. Abrego Garcia’s subsequent ICE record states he was arrested with $1,178 on him, though a large amount of cash is not an ICE criterion for gang activity.
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At the end of the process, law enforcement documents by ICE show that it would designate Abrego Garcia as a verified member of MS-13. The same documents show it also confirmed he had no criminal history and did not charge him with any gang-related crime.
Critics say ICE has historically used such allegations to detain people it might not otherwise be able to arrest for a crime, Burrola Estrada said.
Some may have a solid case for a judge to prevent deportation, she added, but if they can’t afford an attorney, they’ll be caught in a system “where they don’t even stand a chance.”
In the case of Elsy Noemi Berrios, the 52-year-old Westminster woman whose arrest by ICE agents while in her car drew national attention, even fewer details about her alleged gang affiliation have been made public.
The government said Berrios was apprehended in part because she is an associate of MS-13.
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“Americans can rest assured that she is off our streets and locked up. I hope the media will stop doing the bidding of these gangs that murder, maim, rape, and terrorize Americans, while ignoring the innocent victims,” DHS Assistant Secretary Tricia McLaughlin wrote in an email. McLaughlin has not responded to requests for details of Berrios’ alleged gang behavior.
There are different standards of evidence in immigration courts than in criminal courts. Hearsay — a third-party, out-of-court statement — is allowed, for example.
It varies by judge, but many give deference to the government with such allegations, experts said.
Evidence of gang membership, which can include gang tattoos, how someone is dressed, flashing gang signs on social media or even an “untested informant,” is typically laid out in an evidentiary document called an I-213. Two factors are needed for a credible gang claim, according to a 2018 Homeland Security Investigations handbook.
Representatives of the Department of Homeland Security headquarters and Baltimore’s ICE field office did not respond to questions about the gang designation process.
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Adam Crandell, a local immigration attorney, said there is precedent guiding the immigration system to consider such documents “inherently reliable.” The Baltimore immigration judge who denied Abrego Garcia bond based on ICE evidence also cited this case law, according to the 2019 ruling.
But a judge can rely on an I-213 even if the evidence supporting it is thin, Crandell said.
Evidence like literally having “MS-13” tattooed on someone’s face can be clear and obvious, Crandell said. But murkier evidence, such as “a couple of Facebook photos pop with the wrong person at the wrong time,” can also be used to implicate someone, he added.
One of Abrego Garcia’s current attorneys, Benjamin Osorio, said in a broadcast interview this week referring to court records, there is “nothing in there that makes me believe that he is an MS-13 gang member.” The federal judge in his current deportation case has also questioned the gang-related evidence in the case.
The use of gang allegations is a long-standing strategy by federal immigration enforcement agents, and it is often based on “the flimsiest of factors,” said law professor Maureen A. Sweeney, who serves as the faculty director of the Chacón Center for Immigrant Justice at the University of Maryland Carey School of Law.
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“Once the allegation is made, it’s very hard to disprove,” Sweeney said.
Attire deemed gang-related may also be worn by others, such as a fan wearing a Chicago Bulls cap, Sweeney said.
In fact, on Abrego Garcia’s gang sheet, law enforcement agents wrote that “Officers know such clothing to be indicative of the Hispanic gang culture.”
“The reference to ‘urban’ fashions is a real tell on the kind of racial bias that is allowed to do a lot of work when the government is deciding to bring these kinds of allegations,” Sweeney said. “You can be sure these factors would not be read the same for a white middle-class young person as they are for young Salvadoran men.”
Black and Latino people tend to live in urban centers, where hip-hop culture originates and thrives, including fashion favored by many people, gang member or not.
“When we start talking about racial profiling, we know it does not stop at race,” said Karsonya “Kaye” Wise Whitehead, professor of communication and African and African American studies at Loyola University Maryland, who also leads the Karson Institute for Race, Peace & Social Justice. “It targets a type of dress — baggy jeans, backwards hats, sports jerseys, tattoos that are part of the culture they are seeing as gang-affiliated even though they are not.”
Michael Brown, former assistant state’s attorney for Baltimore, remembers wearing clothes some might consider gang-related.
“I was once one of those young Black teenagers with jerseys and Starter jackets back in the ’90s,” he said. “You couldn’t turn on MTV and not see a rapper in a video wearing a jersey with a chain or rapping about … whoever’s jersey they were wearing of the rap game.”
That cultural competence has helped Brown in his time as a prosecutor decide whether to pursue criminal charges — particularly when he was dealing with lower-level crimes, he said.
“It is easy to make that accusation without presenting real evidence, but we have the 14th Amendment for a reason,” Del. Joseline Peña-Melnyk, a veteran lawmaker representing Prince George’s County, said. “In cases where individuals are being deported to countries like El Salvador, where their lives may be in danger, this approach is not only unjust, it is inhumane.”
Several immigration attorneys said the debate over Abrego Garcia’s gang status is a distraction from the core issue: a defiance of a court order and a refusal to give a defendant due process.
“It’s not just throwing it out the window,” Burrola Estrada said. “It’s pretending due process never existed in the first place.”
