BALTIMORE — A court battle is brewing in Maryland over the recent arrest and deportation of a purported gang member.
Kilmar Armando Abrego-Garcia was arrested in Baltimore on March 12 due to his undocumented status, and alleged association with the violent MS-13 gang.
He was ultimately deported March 15 to a high security prison in his native country El Salvador.
Abrego-Garcia was aboard one of three deportation flights transporting accused gang members to El Salvador under President Donald Trump's Alien Enemies Act declaration (AEA), which is the subject of ongoing litigation.
According to a Monday court filing, Abrego-Garcia was removed under Title 8 laws, not AEA.
"Abrego-Garcia was not on the initial manifest of the Title 8 flight to be removed to El Salvador," the government said in a March 31 court filing. "Rather, he was an alternate. As others were removed from the flight for various reasons, he moved up the list and was assigned to the flight."
Other court documents show an immigration judge ordered Abrego-Garcia to be removed from the U.S. back in April 2019 over his alleged gang ties.
Initially he was arrested for loitering outside a Prince George's County Home Depot with other known gang members.
At the time Abrego-Garcia denied being in a gang, arguing in court that he posed no danger to the community.
The government said Abrego-Garcia's gang membership was verified through "a past, proven, and reliable source of information."
In December 2019 an Immigration Appeals Board ruled Abrego-Garcia "failed to present evidence to rebut that assertion."
Abrego-Garcia claimed his life would be in danger if he were to be returned to El Salvador.
Despite affirming Abrego-Garcia's link to MS-13, and authorizing his deportation, an immigration judge determined he should be removed somewhere other than El Salvador due to potential safety concerns.
The judge, however, appeared skeptical of Abrego-Garcia's claims stating, "Although the Respondent stated that he intends to file for asylum, his eligibility appears limited to withholding of removal and protection under the Convention Against Torture due to his failure to file an application within one year of his arrival in the United States."
Court documents show Abrego-Garcia was actually in the U.S. for eight-years without ever applying for asylum beforehand.
The judge also expressed concern about Abrego-Garcia's history of failing to appear in court for past traffic citations.
"Respondent has a history of failing to appear for proceedings pertaining to his traffic violations," the immigration judge wrote in her 2019 order. "[Abrego-Garcia] asserted that he did not receive notice of these proceedings, but in his written statement, he admitted that he remembers receiving citations that he chose not to follow up on. The Respondent's lack of diligence in following up on his traffic court cases indicates that he cannot be trusted to appear in immigration court."
Nonetheless, the feds decided to release Abrego-Garcia from custody while awaiting deportation.
He remained free until March 12, 2025 when ICE re-arrested him in Baltimore.
Abrego-Garcia's wife, a U.S. citizen whom he shares a child with, reportedly saw a photograph in the news of her husband entering the El Salvadoran prison.
She's now suing the Trump administration, seeking his release from prison and return to the U.S.
The government has since acknowledged Abrego-Garcia's deportation to El Salvador was done in "error."
U.S. Department of Justice attorneys now say federal courts lack jurisdiction to order Abrego-Garcia's release, considering he's now in the hands of another country's government.
"This Court lacks jurisdiction because Abrego-Garcia is not in United States custody," the DOJ wrote in a March 31 defense motion. "Plaintiff's claims fall within the historical core of the writ of habeas corpus."
Government lawyers also argue Abrego-Garcia was provided fair opportunity to present evidence refuting his gang membership, but failed to do so.
"Abrego Garcia is barred from disputing that, as a member of the criminal gang MS-13, he is a danger to the community," the DOJ continued.
A federal judge in Maryland hearing the case has not yet ruled.