It is apparently a simple matter to resolve in accordance

Posted on: April 23, 2025 at 16:22:56 CT

within the bounds of US law & procedures. From the article that BH O'bonga linked to:

"But, more significantly for Abrego Garcia, the statute granting him WOR has a significant exception that now applies to him. Pursuant to 8 U.S.C. Sec. 1231(b)(3)(B)(iv) — WOR is not available to an illegal alien when:

there are reasonable grounds to believe that the alien is a danger to the security of the United States.

The designation of MS-13 as a “terrorist organization” provides the basis for removing Abrego Garcia’s WOR protection — IF he is an MS-13 member. The standard — established by a statute passed by Congress and signed by a prior President — is “reasonable grounds to believe.” It is not “beyond a reasonable doubt” or “preponderance of the evidence.” It is much closer to what is recognized in other contexts as “probable cause” which also turns on a “reasonableness” standard and not a weighing of evidence.

This is underpinned by a basic judicial principle that is not being given enough consideration by those yammering back and forth over this subject — illegal aliens with no right to remain in the United States are not entitled to the same
”due process” rights as citizens EXCEPT in circumstances where they are charged with a crime and the government is seeking to imprison them as punishment for that crime.

Finally, how would this motion to reopen be made to happen? It is a hearing and it must happen before an Immigration Judge who would make the decision.

But NOTHING I have found leads to the conclusion that the hearing requires Abrego Garcia’s in-person appearance in the United States. Under 18 U.S.C. Sec. 1229a(b)(2), immigration hearings may be conducted via video or teleconference.

One exception requiring consent by the alien to a video or teleconference is when the hearing is for the purpose of considering evidence. But, given the proceedings that have already taken place with Abrego Garcia present in Maryland, both grounds for removing his WOR status can be asserted without his in-person appearance back in the United States.

First, as to his membership in MS-13, regardless of the various legalistic claims that the findings during his two bail hearings are not sufficient, such claims are nonsense because the doctrine of “collateral estoppel” applies. It is a legal doctrine that prevents a party from relitigating an issue that was resolved in a previous lawsuit or administrative proceeding, even if the issue relates to a different claim in the new matter. The requirements are only that the issue was part of the final determination in the earlier proceeding, and the issue was raised and decided with both parties having had a chance to present evidence and argument on the issue.

Whether Abrego Garcia was an MS-13 member was squarely before the Immigration Judge and the Bureau of Immigration Appeals. The government presented the evidence of his affiliation and Abrego Garcia denied being a member and offered evidence to the contrary. The fact that Abrego Garcia had the burden of proof in that setting is irrelevant to the question of whether the matter was squarely before the judge, Abrego Garcia contested the issue, and the issue was decided. The decision does not say he was denied bail because he failed to carry his burden of proof that he was not a danger to the community — it says the evidence of his membership in MS-13 established he was a danger to the community:

After considering the information provided by both parties, the Court concluded that no bond was appropriate in this matter. The Court first reasoned that the Respondent failed to meet his burden of demonstrating that his release from custody would not pose a danger to others, as the evidence shows that he is a verified member of MS-13.”

Since “collateral estoppel” is a legal issue and does not require any new evidentiary determination, a hearing to assert his membership in MS-13 as a basis for removal of his WOR status can be conducted by video/teleconference.

But, even if the application of collateral estoppel is disputed, ICE regulations provide that an Immigration Judge may conduct a hearing by video or teleconference to consider or review “credible fear determinations” without the consent of the alien. 8 C.F.R. Sec. 1003.25(c).

Telephonic or video hearings. An Immigration Judge may conduct hearings through video conference to the same extent as he or she may conduct hearings in person. An Immigration Judge may also conduct a hearing through a telephone conference, but an evidentiary hearing on the merits may only be conducted through a telephone conference with the consent of the alien involved … except that credible fear determinations may be reviewed by the Immigration Judge through a telephone conference without the consent of the alien.

If the changed circumstances in El Salvador with respect to Barrio 18 are such that there is no longer a basis for finding a “credible fear of persecution” at the hands of that gang, that issue can be heard and resolved by an Immigration Judge through a telephone conference without Abrego-Garcia’s consent to proceed in that fashion.

So there is a simple solution to fixing the WOR problem that does not require Abrego Garcia being returned to the United States. These proceedings are through the Immigration Court that is part of the Executive Branch, and over which the Article III district courts have been divested of jurisdiction by the Congress. Judge Xinis has no authority to interfere in this process if DOJ chooses to revisit the WOR benefit in this fashion. Abrego Garcia would have a right to appeal the outcome to the Board of Immigration Appeals and then to the Court of Appeals for the Fourth Circuit. Both could be done on his behalf without his presence in the United States.

The only remaining hurdle is a political one — the Administration seems unwilling to proceed in a manner that could be construed as acknowledging the validity of the Order from Judge Xinis. It seems intent on continuing to contest the legal validity of the order itself, as well as the sufficiency of the the language of the Order following the Supreme Court’s earlier intervention directing her to provide more clear guidance — which she thereafter declined to offer.

I predicted last week when this issue turned volatile that the Administration would fix the error involving Abrego Garcia, but it would not do so in response to a judicial order that it act in any specific manner in correcting the error. This is an Executive error, subject to correction through administrative processes in the Executive branch, and involving a subject matter that is within the exclusive authority of the Executive. It is going to resolve it in that manner without conceding that the Article III district court has any role to play."