Is Returning García to the U.S. Just an Exercise in Futility?

WASHINGTON - April 14, 2025 - PRLog -- His supporters are objecting to El Salvador's refusal to return García to the U.S., despite the admission that he was sent flown there by mistake, and the Supreme Court's order for the Trump administration to "facilitate" his return.

But any such return might be nothing more than an exercise in futility because the rare "withholding of removal" status which he was granted could be revoked, and it might even be capable of being changed while he remains in prison, suggests public interest law professor John Banzhaf.

This revocation is quite likely, says Banzhaf, because his status was based upon his alleged fear of violence, especially gang violence, but many reliable sources report that the extent of gang- and other violence in El Salvador has been slashed since then.

That appears to be true regardless of whether García was a member of MS-13 as the government claims, or not a member of the gang as Garcia maintains.

Moreover, decisions granting or revoking "withholding of removal" status, are made by an immigration judge who is an employee of the same Department of Justice which is fighting against Garcia's return.

So even if García is somehow returned to the U.S., his "withholding of removal" status could be very promptly revoked, and he could immediately be flown back to El Salvador.

In other words, his mistaken flight to El Salvador might be regarded by the law as nothing more than a "harmless error"; and, at least arguably, there would be no point in requiring him to be flown back to the U.S.

On the other hand, if his status is changed immediately and even while he remains in prison, the arguments for not requiring his return would be even stronger.

One possibility would be to have a 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.

Such a determination - that there would not be a reasonable fear of his persecution - would not disregard his physical and other suffering which has already occurred as a result of his mistaken deportation to El Salvador, but rather would be supported by the argument that facts regarding the reasonableness of such a fear have changed dramatically.

In any event, not requiring his return would simply be recognizing that there might be little purpose in flying him back if, upon his return, his "withholding of removal" status would very likely be immediately revoked, and he would be very promptly simply flown back to El Salvador, suggests Banzhaf.

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