The judge who ordered Abrego Garcia not be deported was a Trump appointee

A conservative jurist appointed by Trump's attorney general, Judge Jones was the only judge to study the Maryland man's background, seeing the threats posed to him and his family in El Salvador

Lost in much of the media coverage and the torrent of vicious lies from Trump officials surrounding the horrifying story of Kilmar Abrego Garcia, and how he was deported to the brutal El Salvador mega-prison, is the fact that the judge who ordered that he not be deported to El Salvador in 2019 was appointed by Donald Trump’s first administration. And he was the only judge to thoroughly vet Abrego Garcia’s history.

In 2019, then Acting-Attorney General Matt Whitaker appointed Judge David M. Jones to oversee the Baltimore Immigration Court. Jones previously served as a judge advocate for 26 years in the U.S. Marine Corps and attended Brigham Young University—where 98% of the students are Mormon—for both his undergraduate degree and his law degree. (And remember, the first Trump administration—like the second one—was one hellbent on deporting people and surely making sure to appoint immigration judges who would do so.)

That, by itself, may not mean much. But what means a lot is that this now-retired conservative jurist—an immigration judge who had a higher rate of asylum claim denials than the average U.S. immigration judge—is the only judge to study Abrego Garcia’s background, not only determining that he would be in grave danger if deported back to El Salvador but also not pointing to any evidence of criminal activity.

In fact, it’s clear from his ruling after a two-day hearing on Abrego Garcia’s asylum claim in October 2019 that Jones would have granted Abrego Garcia asylum if not for the fact that the window of time for applying for asylum—one year after entry into the country—had long past. He addressed that as the reason he was denying asylum even as he ordered that Abrego Garcia not be deported back to El Salvador.

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Not only that, but after Jones issued the “withholding of removal” order in 2019 protecting Abrego Garcia from being deported back to El Salvador based on “credible fear of persecution,” the government—the Trump administration—did not appeal it.

To read Jones’ 14-page order is to read one of the few accounts of Abrego Garcia’s early life—and the dangers to him and his family in El Salvador—even now as much of the media is focused on the deportation story and the Trump administration’s actions. Lawfare journalist Roger Parloff is one of the few to thoroughly recount it in a well-done piece on the case.

Judge Jones’ findings outline harrowing realities that Abrego Garcia contended with from a young age. He was born in 1995 in the Los Nogales neighborhood of San Salvador, where he lived with his family, including his brother Cesar. His mother, Cecilia, operated a business from her home, making and selling papusas, popular tortilla-like griddle cakes that are a national dish in El Salvador.

The business took off, and everyone in the neighborhood wanted papusas from “Papuseria Cecilia.” Kilmar and his brother Cesar delivered the papusas to customers, and Kilmar’s father and two sisters also helped to run the family business. Unfortunately, the success of the business also became noticed by the Barrio 18 gang, which extorted the family.

The family paid Barrio 18 weekly after the gang physically threatened Kilmar, and threatened to rape his sisters and kill his brother Cesar. Then the gang offered to stop demanding payments if the family gave Cesar over to them to be a member of the gang. When the family refused, there were more threats, and more money was paid. The family eventually sent Cesar to the United States, where he now lives as a U.S. citizen.

Barrio 18 then moved to recruit Kilmar. More money was paid after the gang threatened to kill Kilmar. The family moved several times and even eventually closed Papuseria Cecilia, but the threats continued. Finally, around 2011, Kilmar, at 16, was sent to the U.S. as well, joining his brother in Maryland. He lived as an undocumented immigrant, working in construction and eventually meeting his future wife, Jennifer Stefania Vasquez Sura, an American citizen.

Judge Jones’ order recounts all of that based on his fact-finding and testimony during a two-day hearing in Maryland in October 2019. Jones concluded:

The evidence in this case indicated quite clearly that at least one central reason the Respondent was subject to persecution was due to him being his mother’s son, essentially as a member of his nuclear family. That respondent is his mother’s son is the reason why he, and not another person, was threatened with death.

He was threatened with death because he was Cecilia’s son and the Barrio 18 gang targeted the Respondent to get at the mother and her earnings in the papusa business…

The Respondent’s application for asylum is time-barred without exception. However, he has established past persecution based on a protected ground, and the presumption of a well-founded fear of future persecution.

And on that basis, Jones denied the asylum claim but granted the withholding of removal.

Let’s be 100% clear: Jones and his fact-finding are the last word from a federal judge on Abrego Garcia (prior to the current legal battle). At the bottom of the order, the appeals process is spelled out, noting that each party had 30 days to appeal. And the government did not appeal.

So the last judge to look in depth at Abrego Garcia’s story, a judge appointed by Trump’s administration, found he was a victim of a gang in El Salvador, and not a member of a gang by any stretch.

Why then is the current Trump administration continually—in press conferences, on social media, and from the Oval Office—engaging in smears and defamation, claiming that Abrego Garcia is a member of MS-13?

It’s all based on dubious proceedings from before Jones’ order, which clearly even Jones had dismissed.

Lawfare explains what happened in the years after Abrego Garcia arrived and was living with his then-girlfriend, now his wife:

In around 2018, Abrego Garcia moved in with his then-girlfriend, Jennifer, a U.S. citizen, according to the declaration she filed in connection with Abrego Garcia’s recent legal troubles. She had two children by a prior relationship. Each has special needs: One has epilepsy and the other, autism. In late 2018, Jennifer became pregnant with a third child by Abrego Garcia. Due to a long-standing medical condition, it was a high-risk pregnancy.

On March 28, 2019—during the first Trump administration—Abrego Garcia drove one of Jennifer’s children to the babysitter and the second to school, before dropping Jennifer at work. She was then five months pregnant. Abrego Garcia then drove to a Home Depot parking lot in Hyattsville, Maryland, to look for construction work, as he had several times before.

When Abrego Garcia failed to appear to pick up Jennifer after work, she texted him. There was no response, though the text was eventually marked “read” on her phone. At 9 p.m. that night, Jennifer learned from a friend that Abrego Garcia had been arrested. She called several jails but was unable to locate him. The next morning, he called her from U.S. Immigration and Customs Enforcement (ICE) custody.

Abrego Garcia had been looking for a job at Home Depot, and was picked up in a parking lot by Prince George’s County police along with three other men who were looking for jobs who Abrego Garcia had not known. At the station the police asked if he was a member of a gang, to which he replied he was a not, according to the complaint filed in the recent litigation by his attorney:

When he told police he was not, they said that they did not believe him and repeatedly demanded that he provide information about other gang members. The police told Plaintiff Abrego Garcia that he would be released if he cooperated, but he repeatedly explained that he did not have any information to give because he did not know anything.

ICE soon arrived, detained him and removal proceedings were brought against him. Judge Elizabeth Kessler, a George W. Bush appointee, was skeptical of the claims that he was a gang member based on conflicting documents offered by the government, which she said were “at odds.”

But she nonetheless ruled he should not be released on bail because he was picked up with other man who were “ranking gang members” (even though Abrego Garcia had not known two of them) and because a “trustworthy and reliable” source (a police detective) said Abrego Garcia was a gang member. (An appeals court also rubber-stamped what seemed like a shoddy, rushed process, in a brief ruling, upholding the denial of bail.)

Kessler even said she was “reluctant to give evidentiary weight to the Respondent’s clothing as an indication of gang affiliation,” but that the source was “trustworthy.” The complaint explains what she meant by “clothing,” and it’s pretty jaw-dropping:

The [Prince George’s County Gang Field Interview Sheet] explained that the only reason to believe Plaintiff Abrego Garcia was a gang member was that he was wearing a Chicago Bulls hat and a hoodie; and that a confidential informant advised that he was an active member of MS-13 with the Westerns clique….
According to the Department of Justice and the Suffolk County District Attorney’s Office, the “Westerns” clique operates in Brentwood, Long Island, in New York, a state that Plaintiff Abrego Garcia has never lived in.

As Lawfare describes it:

So the uncross-examined detective’s accusation came from an unidentified informant who was also, perforce, uncross-examined—a second layer of hearsay.

Abrego Garcia’s lawyer later tried to obtain more information about the allegations ICE had made at the bail hearing, according to the complaint. He discovered that the Prince George’s Police Department had no incident report for the arrest, and the Hyattsville City Police Department’s report mentioned only the other three men arrested—not Abrego Garcia.

On top of that, we’ve also learned that the detective making the accusation about Abrego Garcia was suspended from the police force, as Greg Sargent at The New Republic detailed:

What’s more, it turns out that [Detective Ivan] Mendez was suspended, in early April 2019, for “providing information to a commercial sex worker who he was paying in exchange for sexual acts.” That’s according to the P.G. County police’s own announcement of his indictment, which came a year later, in June 2020. Strikingly, the information Mendez shared was related to “an on-going police investigation.”

“This is clearly not an officer that respects the rules and protocols,” [one of Abrego Garcia’s current attorney’s, Lucia] Curiel told us. “If he’s willing to do that, what else is he willing to do?”

Those questionable proceedings from early 2019 are what the Trump administration is now grabbing onto and railing about on TV, in claiming Abrego Garcia is a member of MS-13. Yet, in court they’ve not contested Abrego Garcia’s complaint by providing any evidence to its refutations of those accusations.

And again, the final word would come later that year, in October, from Judge David M. Jones, the Trump-appointed judge who not only reviewed Judge Kessler’s ruling from earlier in the year; he would then do a thorough fact-finding, which showed Abrego Garcia—who’d committed no crimes—was actually for much of his life a victim of a gang and not a member of a gang, so much so that he needed to be protected by the American government.

The Trump administration allowed that to stand in 2019. Now they’re in overdrive attempting to cast aspersions on a man they granted legal status. But their own record shows they are lying—and that should be part of every story in the media.