Returning an illegal immigrant and alleged past MS-13 member seized in Baltimore last month and sent to a Salvadoran prison is likely a wasted effort since the administration could easily change his immigration status and deport him again, according to legal experts.
“Any such return might be nothing more than an exercise in futility,” George Washington University Law School professor John Banzhaf said. “There might be little purpose in flying him back if, upon his return to the U.S., his ‘withholding of removal’ status would very likely be immediately revoked,” he said on Tuesday.
At issue is the arrest and deportation last month of Kilmar Abrego Garcia, who is described in the media as a “Maryland man,” entered the United States illegally in 2011, and was described in courts as a past member of the violent gang MS-13, which President Donald Trump has declared a global terrorist group.
Supporters claim he was wrongfully detained and deported, and the Supreme Court has ordered that the Trump administration help in returning him to the U.S., which the administration said it is unable and unwilling to do.
Immigration law experts weighing in on the case, while not picking sides, described it as legally complicated due in part to Garcia’s long delay in asking for asylum and the less protective status of “withholding of removal” he was granted in 2019.
According to Banzhaf and the pro-immigration American Immigration Council, “withholding of removal” grants fewer rights than asylum, mainly because it offers no path to citizenship and keeps illegal immigrants in “limbo.” What’s more, if the home country’s crime and gang situation improves and the threat of danger ends, deporting is the answer.
While gangs ruled El Salvador a decade ago, Salvadoran President Nayib Bukele has instituted a crackdown that has turned the nation into one of the hemisphere’s safest. He told Trump at the White House on Monday that he plans to keep it that way.
“I don’t have the power to return him to the United States. We’re not very fond of releasing terrorists into our country,” he said in refusing to release Garcia.
Is Returning García to the U.S.
Just an Exercise in Futility?
His Rare Protected Status Could Be Revoked
While He’s Still In Prison
Public Interest Law Professor John Banzhaf
George Washington University Law Schoolhttps://t.co/bpRmbMsVC3 pic.twitter.com/7O9oCiFhDg— John Banzhaf (@ProfBanzhaf) April 15, 2025
Banzhaf wrote that if Garcia is returned for an immigration hearing, it is likely he will be sent home because his claims of fear are now unfounded.
And, he said, his status could be changed while he is in El Salvador. “One possibility would be to have an immediate hearing to revoke his privileged status at which he would participate from prison via a video conference; just as many legal proceedings in the U.S. are regularly held. It might even be possible to change his status without his physical participation since the issue is the amount of gang- and other violence now in El Salvador,” the professor said.
He added, “In any event, not requiring him to be flown back to the U.S. even if a hearing on his status does require it, would simply be recognizing that there might be little purpose in flying him back if, upon his return to the U.S., his ‘withholding of removal’ status would very likely be immediately revoked — because his fear is no longer compelling, or simply because of the Justice Department’s position — and he would be very promptly simply flown back to El Salvador.”
Former immigration judge Andrew Arthur told Secrets that Banzhaf nailed the issue in showing the administration a pathway out of the public relations crisis.
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Arthur, with the Center for Immigration Studies and a former student of Banzhaf, told us, “His analysis here is dead-on correct, particularly given the fact that Abrego Garcia claimed a fear of harm at the hands of Barrio 18, a street gang whose power has largely been negated by the crackdown President Bukele enacted starting in 2022.”
He added, “Abrego Garcia may claim that he now fears persecution or torture at the hands of the Salvadoran government, but it is questionable that the immigration court or Board of Immigration Appeals would find that the treatment suspected gang members receive in El Salvador or at CECOT [prison] in particular constitutes persecution or rises to the level of persecution or constitutes ‘torture’ as that term is defined.”