Kilmar Abrego Garcia wants asylum. The US wants to deport him. What to know

Kilmar Abrego Garcia faces an uncertain future.

The Trump administration wants to deport him to the African nation of Eswatini. Abrego Garcia wants to apply for asylum to stay in the U.S.

Either path could begin with a long journey through the legal system.

Abrego Garcia, 30, became a flashpoint over President Donald Trump’s immigration crackdown when he was wrongfully deported to his native El Salvador. The Trump administration claimed he was a member of the MS-13 gang, an allegation that Abrego Garcia denies and for which he wasn’t charged.

The administration returned Abrego Garcia to the U.S. in June, but only to face human smuggling charges. Abrego Garcia’s lawyers have called the case preposterous and vindictive.

Abrego Garcia was released from a Tennessee jail to await his trial last month. He was taken into immigration custody three days later and remains in a Virginia detention center.

Here’s a look at what could happen next:

Fears of other countries

The Trump administration has proposed sending Abrego Garcia to Eswatini because it cannot legally send him to El Salvador.

Abrego Garcia fled El Salvador around 2011 because a local gang had extorted and terrorized him and his family, according to court documents. Abrego Garcia had settled in Maryland without documentation to join his older brother, who had become a U.S. citizen.

One day in 2019, Abrego Garcia sought work as a day laborer outside a Home Depot. A confidential informant told police that Abrego Garcia and other men outside the store were in MS-13 because of their clothing and tattoos, according to court documents.

Abrego Garcia was never charged but was turned over to Immigration and Customs Enforcement. He applied for asylum, but was denied because his request came more than a year after he entered the U.S.

However, an immigration judge granted him protection from being deported to El Salvador after Abrego Garcia demonstrated that he had a well-founded fear of gang persecution there.

Six years later, in the early days of the second Trump administration, ICE deported Abrego Garcia to a notorious El Salvador prison, violating the immigration judge’s order. Following a Supreme Court order, the Trump administration returned him to the U.S., but only to face charges of human smuggling.

The Trump administration said last month that it intended to deport him to the African country of Uganda. Abrego Garcia notified the U.S. government that he fears being sent there over concerns of persecution or being sent on to El Salvador.

Last Friday, the Trump administration said it now intends to deport him to Eswatini.

A letter from ICE said his fears are “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.”

Trump’s immigration court

The U.S. is supposed to follow a multi-step process for deporting someone to a nation that isn’t their home country, according to immigration attorneys.

For example, an immigration officer is supposed to conduct a reasonable fear interview, during which Abrego Garcia can raise concerns about persecution and torture. If the officer disagrees, Abrego Garcia can ask an immigration judge to review the decision. From there, Abrego Garcia can go to the Board of Immigration Appeals.

Immigration judges are part of the Justice Department and under the Trump administration’s authority. Trump has been firing immigration judges, many appointed by former President Joe Biden, as part of his immigration crackdown.

However, Abrego Garcia can contest a Board of Immigration Appeals decision in the federal courts, which are part of the nation’s independent judiciary.

‘You can’t win every case’

Even if Abrego Garcia thwarts deportation to Eswatini, he likely will face attempts to remove him to another country and then another, according to Memphis-based immigration attorney Andrew Rankin.

“By the law of averages, you can’t win every case,” he said.

Asylum, however, could place the focus solely back on El Salvador, where Abrego Garcia has previously shown a credible fear of gang persecution.

Abrego Garcia has filed a motion to reopen his 2019 immigration case and apply for asylum. His lawyers will likely argue he’s eligible because he’s been in the U.S. less than a year, Rankin said.

Asylum could provide a green card and a path to citizenship. But he’s taking a risk, Rankin said. If Abrego Garcia loses his bid, an immigration judge could remove his protection from being returned to El Salvador.

‘A traffic court setting’

Abrego Garcia’s motion to reopen his immigration case is still pending. If it’s denied, he can appeal to the Board of Immigration Appeals. From there, he can go to the 4th Circuit U.S. Court of Appeals in Richmond, Virginia.

If he is allowed to request asylum, he’ll get a hearing. His lawyers and the government can present evidence and call witnesses.

“A very famous saying about immigration court is ’Immigration court has death penalty consequences in a traffic court setting,” said Rankin, the attorney.

For example, immigration judges have much wider discretion on scheduling, admitting evidence and issuing judgments, Rankin said. There can be little consistency between individual immigration courts.

“In traffic court, you’re deciding a speeding ticket, which at most affects insurance purposes,” Rankin said. “Whereas in immigration court, you’re deciding in this particular case whether someone’s going to go home to die. Or if they’re going to stay in the U.S.”

Attorney general could rule

Attorney General Pam Bondi has the authority to decide Abrego Garcia’s immigration case as the head of the Justice Department, immigration experts say. Such decisions are rare, but the Trump administration has shown a willingness to break with precedent.

Abrego Garcia’s attorneys in his Tennessee criminal case have criticized Bondi for what they say are prejudicial statements, claiming he can’t get a fair criminal trial.

César Cuauhtémoc García Hernández, an Ohio State University law professor, said a hypothetical ruling from Bondi would likely be appealed to the 4th Circuit.

The smartest thing for Bondi to do, the professor said, is to “work with a good group of Justice Department lawyers who are going to explain the factual basis for your conclusion.”

Rankin, the attorney in Memphis, said Abrego Garcia’s attorneys likely would attack any decision made by Bondi to deport him as “a political hit job.”

“It would destroy any credibility that this is a prosecution for the American people and not a prosecution for Donald Trump,” Rankin said.