Kate Lincoln-Goldfinch, a Texas-based immigration attorney, joined "Forbes Newsroom" to discuss the case of Kilmar Abrego Garcia, who was mistakenly deported to El Salvador by the Trump administration in March. Garcia, a Salvadoran national, was granted “withholding of removal” status in 2019 after he fled gang violence and entered the U.S. illegally in 2011.
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00:00Hi, everybody. I'm Brennan Lewis, a breaking news reporter here at Forbes.
00:06Joining me now is Texas-based immigration attorney Kate Lincoln-Goldfinch.
00:10Kate, thank you so much for joining me.
00:12Thanks for having me.
00:13President Trump, in his second term, vowed to make immigration a top priority.
00:17In the case we're discussing today, some have argued this shows just how hard-line
00:22President Trump's immigration stance is.
00:24Others have said that this is a constitutional crisis.
00:27And the case we're discussing today is Kilmar Abrego-Garcia.
00:30He's a man who lived in Maryland, but he was born in El Salvador.
00:34He came into the country illegally in 2011.
00:37And in 2019, an immigration judge ruled that he could not be deported back to El Salvador
00:42because he faced gang violence there.
00:45Last month, he was deported to El Salvador, and he's currently being held in a prison there.
00:50Initially, the Trump administration said that he was mistakenly deported.
00:53Now they're saying that he's affiliated with the gang MS-13.
00:57What is your response to this case and what has been unfolding?
01:01It's so upsetting.
01:02This case is really, it's rocked the nation, as you say, for a reason, because he was mistakenly deported.
01:10He got, Kilmar got withholding of removal, which is something that's like asylum.
01:14And I've done lots of these cases before immigration judges in court.
01:18And what happens is you go before the judge, there's a DHS attorney, you present evidence,
01:24you bring maybe expert witnesses, you get cross-examined, and the judge issues a ruling
01:30in a court that says, in his case, it is unsafe for him to be sent back to El Salvador.
01:36He cannot be sent back to El Salvador.
01:39So the fact that he was picked up and sent to El Salvador is in violation of our own court ruling.
01:44And it also is sending him back to the country and the prison where the people who were persecuting
01:50him are being held.
01:52So it's sending him directly into the mouth of the danger from which we ordered him to
01:57be protected.
01:58And so that in and of itself is concerning.
02:01But what I think is even more upsetting to people who are watching this is the response
02:06of the Trump administration, because this is a case where the federal courts have stepped
02:10in, a lower federal court judge very clearly required them to bring him home.
02:15The Supreme Court issued a decision.
02:17I'm sure we can get into all of that.
02:19But what's come out of this is that the Trump administration has begun to defy the federal
02:23judiciary.
02:25And that is the constitutional crisis that everyone has been waiting and watching for.
02:30I want to talk about the withholding of removal status.
02:33I mean, what specifically does that mean?
02:35Does that mean he has asylum for good?
02:37Does that mean he can be deported anywhere else except El Salvador?
02:41Is that full citizenship?
02:43I mean, what does that look like?
02:44What are his rights there when it comes to that status?
02:47So that's a great question.
02:48And it's something that a lot of people are getting wrong out there in the reporting and
02:51people don't understand.
02:52So withholding of removal is like asylum in the sense that you have to prove you've been
02:57persecuted on account of a protected brown, like your race, your religion, your nationality,
03:03your political opinion, your membership in a particular social group.
03:05And as I mentioned, you have to go before a judge.
03:07It's very hard to prove.
03:09But withholding of removal does not contain the same protections that asylum does, which
03:13is lifelong assurance that you will be in the United States.
03:16Someone who has withholding, like Kilmar, theoretically could be deported to a third country.
03:22That doesn't happen very often.
03:24Most third countries don't want to receive people who have gotten protection.
03:28But, you know, theoretically, he could have been sent to, I don't know, Panama or Mexico
03:32or just some other country.
03:34But the issue in his case is that El Salvador was the one place where he could not be returned
03:42under this law, under the court order.
03:45And that was the one place where we sent him.
03:47And not only that, we didn't just send him to the country of El Salvador.
03:49We sent him into Seacot, which is this prison for gang members who are the very gang members
03:57from whom he fled.
03:58So we sent him directly into the spot where he was the most vulnerable.
04:05And all of the evidence that anyone has seen indicates that he is not a gang member, that
04:11it's actually quite the opposite.
04:13And the Trump administration will say, you know, in the media that he's a gang member and
04:18he's a terrorist.
04:19But the federal court has repeatedly asked them for evidence and proof of this, and they're
04:25refusing to share it.
04:26So to me, that's an indication that they don't have it.
04:29And Seacot, as you mentioned, the prison in El Salvador, where he is, is known for human
04:33rights violations.
04:34And this case made its way up to the Supreme Court.
04:37I want to talk about that.
04:38First, the federal judge in Maryland ruled that the Trump administration has to, quote,
04:43facilitate and effectuate Garcia's return.
04:46And these words are where people are getting hung up, because the Supreme Court then ruled in
04:50a nine to zero ruling that the Trump administration has to facilitate his return.
04:55But they got hung up on the effectuate word.
04:58The Supreme Court said that the word effectuate has to be defined, quote, with due regard for
05:02the deference owed to the executive branch in the conduct of foreign affairs.
05:07What do you make of the Supreme Court's ruling?
05:09Because we will get into this, but both sides are claiming victory over this.
05:12Yes, and I think, you know, the Supreme Court wasn't as clear as they should have been in
05:17this decision.
05:18So it was a unanimous decision.
05:20And when I initially read the decision, I felt so much relief flood through me that the
05:25Supreme Court was going to stand up to this action by the Trump administration.
05:29And it was within 12 hours of that order that the Trump administration began to claim a
05:34victory.
05:35And I started to realize that, oh, they're going to spin this.
05:38They're going to use this sort of question about what it means to effectuate a return
05:43and simply not take action.
05:46But I think then what took it sort of over the top was the press conference when Trump
05:51invited President Bukele and they just blatantly stated, we're not trying.
05:56We are not trying to bring him back.
05:58And then, I mean, so now we've, even though the Supreme Court decision was somewhat vague
06:05or it left open questions about what it means to effectuate a return, it's obvious they're
06:10not even facilitating a return.
06:13So it's now back down at the lower court.
06:15The lower court just yesterday issued a really scathing rebuke of the Trump administration.
06:20So we're now, I think, going to see all of this play out again in federal court.
06:24My hope and expectation is that this round, the judiciary will be more clear in their words
06:32to the Trump administration.
06:33And then we'll really see whether the Trump administration is willing to outright defy
06:38a clear judicial order from the Supreme Court that cannot be sort of spun one way or the other.
06:45To your point, El Salvador's president in the White House said that he doesn't have the
06:49power to bring back Garcia.
06:51He effectively said that would be like smuggling a terrorist back into the United States.
06:56White House Deputy Chief of Staff of Policy Stephen Miller then said that, hey, this 9-0
07:01ruling from the Supreme Court is a victory for the Trump administration.
07:05They're effectively saying that foreign policy decisions rest with the president.
07:10What do you make of that interpretation of what the Supreme Court said?
07:12Do you think the Supreme Court, from what you're saying, it sounds like they inadvertently
07:16left some vagueness and the Trump administration is really cracking that wide open?
07:21I think that that's right.
07:22But I also think Miller's interpretation in that press conference and what the Trump
07:26administration is saying is a laughable interpretation of this court order.
07:32It is absolutely not a win for the Trump administration.
07:35The Supreme Court clearly said the administration needs to facilitate the return of this man.
07:40And then for Bukele to say, he used the word preposterous in the press conference, that it would be preposterous for him to try to bring back Kilmar to the United States when the highest court of our land has ordered the president to facilitate his return.
07:57And one would expect that in that moment where Bukele is saying it's preposterous, I can't smuggle a terrorist, that the president should have said in that moment, actually, we are willing to receive him.
08:09We are willing to facilitate this man's return.
08:11But instead, Trump turned to Miller, who went on to spin and I would say just lie about what the Supreme Court decision said.
08:21And that's why I think at this round, at the lower courts, presumably back up to the Supreme Court, I would expect the Supreme Court not to take too kindly to the spin on their order
08:33and to be more clear in their rebuke against the Trump administration's actions and refusal to follow their order.
08:41What do you think the Supreme Court can and will do? I mean, what are their next steps here?
08:46So they can order, for example, all of the deportations abroad to stop, all of the deportations period to stop until due process is given to each individual.
08:57So they can really gum up the works of the deportation machine of the Trump administration.
09:03So they have some, you know, tools in their arsenal to really mess with the efforts of the Trump administration to deport people.
09:11Now, the constitutional crisis that I think is looming that everyone's considering is, okay, once the Supreme Court is so clear that their decision cannot be spun,
09:23then the Trump administration will have a decision.
09:25Are we going to follow the law of the land or are we going to just defy a clear order?
09:32And that would be the moment where the checks and balances of our nation disintegrate, and that would be an unprecedented thing.
09:40We've actually never seen that before in our nation's history where one branch of the government just completely defies another in our system of checks and balances.
09:49There is an argument that he, and by he I mean Garcia, came into the country illegally.
09:56He committed a crime that way.
09:58He has the status of withholding of removal, as you and I talked about.
10:02I want to talk about due process here.
10:04Is he granted due process?
10:06I mean, what does that look like?
10:07I thought, according to the Constitution, everyone in the United States has due process.
10:12What do you say?
10:12Absolutely not.
10:14There was no due process for him.
10:16He was just picked up off the street with his five-year-old citizen child in the car and sent, again, directly to the place where he was at risk, where we had ordered he not be sent.
10:24Now, if he had been, you know, sent a letter and said, you need to depart this country to a third nation, here's an example.
10:34I've had withholding of removal clients, and I've advised them to write the embassies of other countries and ask if they can go to those countries to make some efforts to go elsewhere.
10:45It's not the United States.
10:47All of that, you know, would have been on the table, right, in terms of due process.
10:52But what they did was they detained him without notice, and they deported him without notice to a prison that has no sentence.
11:01So they sent him without a criminal conviction into a place that is a jail that has no end.
11:10So that, I think, is something really noteworthy for all of us to just reflect on.
11:14All of the Venezuelans and the people who are being sent to this prison in El Salvador, we're not just deporting these people.
11:19We're sending them into a lifelong prison sentence.
11:23And so, no, he had no due process, zero whatsoever.
11:27And I think what's scary about that is that if they can pick him up off the street and deport him into a lifelong prison sentence in another country without due process, who's next?
11:40And really, nobody should feel safe if this is allowed to go on, truly.
11:46I think that's the slippery slope everyone's thinking, that this really opens an unprecedented can of worms of who's next to just be.
11:54Because the Trump administration initially said this was a mistake, and now they're really digging their heels in.
12:01Garcia has a work permit.
12:03His wife is a citizen.
12:05His children are citizens.
12:06As you said, because of his status, let's say he comes back to the United States.
12:10The Trump administration said, we're going to deport him if he steps on U.S. soil to a third country.
12:15If he goes to a third country, does he ever have the opportunity to come back?
12:19What's been your experience with this status?
12:22Probably not legally.
12:24I mean, he could potentially work through a case.
12:26Maybe his wife could petition for him, and he could seek a waiver, you know, for his removal.
12:31So, actually, I said no.
12:34I think there are ways that he could, you know, pursue a re-entry legally through his marriage to a U.S. citizen.
12:42And I think the Trump administration could, you know, if he is sent back to the United States, detain him in an attempt to remove him to a third country.
12:50Now, whether they get permission to send him elsewhere is another question.
12:54And they can't detain him indefinitely here without a criminal conviction while they look to send him to a third nation.
13:00So, there's, you know, there's a lot to come, but let's start with bringing him back, and we'll see where we go from there.
13:09I know right now some U.S. congressmen and senators are going down to El Salvador to see if they can meet with Bukele,
13:16to see if they can even ascertain how Abrego Garcia is doing.
13:21We don't know.
13:22No one knows, actually, if he's even alive at this moment.
13:25So, they're attempting to get that information and bring him home.
13:28And then what happens next?
13:30I'm sure it'll be a hard-fought battle for him to be out of detention and finally free with his family.
13:37As we get more developments in this case, I hope you can come on and break them down with me.
13:41But I'm curious, from your perspective here as an immigration attorney, what are some of the broader implications of this moment?
13:51As you mentioned, the can of worms, the slippery slope, what now, this is the moment.
13:57Of all of the other moments and things that have occurred since January 20th, this case is the test case for due process,
14:06the rule of law in the United States, the checks and balances, the health of our democracy.
14:12This is the moment where we see if the executive branch is willing to follow the law.
14:20And so, if they don't, then what comes next is they pick the next group and then the next group and then the journalists and then the lawyers.
14:29And then, you know, any of us could end up in El Salvadoran prison.
14:34And that's a pretty scary prospect.
14:37Well, there's certainly a lot to look out for in this case.
14:40And I hope you come back on with me and provide and share your insight on those developments.
14:45Kate Lincoln-Goldfinch, thank you so much for joining me.
14:47You are welcome back anytime.
14:49Thanks, Brittany.
14:50It's good to talk to you.