What really goes on behind the scenes of a U.S. deportation?

In this episode, Rosanna Berardi unpacks the controversial case of Kilmar Abrego Garcia—a man granted protection by an immigration judge, only to be suddenly deported years later. She breaks down how removal proceedings work, what withholding of removal really means, and why this case raises serious questions about due process in a fast-moving system.

Listen to the Episode

Watch the Episode

 

Transcript

Everyone’s talking about U.S. immigration law, but nobody really knows how it works. I’m Rosanna Berardi. I’m the daughter of an immigrant, a former immigration inspector at the border, university professor, and founder and managing partner of Berardi Immigration Law.

I’ve done nothing but U.S. immigration law for over 30 years, and it’s time to stop the misinformation on all sides. I’m going to tell you how it all works, the inside story. This is Immigration Weekly with Rosanna Berardi.

What Exactly Is Deportation?

Hello, hello, and welcome to Immigration Weekly. I’m Rosanna Berardi, and today we’re going to talk about all things deportation. We hear this term kicked around, someone’s deported, Americans are being deported, people are being deported that shouldn’t, deportation, removal, blah, blah, blah.

What does it all mean? Well, I’m going to explain everything you need to know. Deportation 101.

You’re going to be the smartest person at your dinner table, or the next time you watch the news or you see something on social media, you’re going to be like, no, that’s not right. What Rosanna told me is correct. So, okay, let’s go back to the basic.

Ready? This is magic. Poof.

We’re going to start with the Immigration and Nationality Act. Remember that guy? 1952 provided a structure for all things immigration, including deportation.

And the premise is this. If you’re in the United States and you are not a U.S. citizen, and you do something bad, if you get arrested, or if you murder somebody, or point a gun, armed robbery, there are provisions to remove you or deport you from the United States. This is a cornerstone, a foundation of our U.S. Immigration and Nationality Act. So the Immigration Law of 1952 created this structure. So what happened? We’ve had it for a long, long time.

And in 1996, Congress, remember them? Congress amended this law and for some reason changed the term deportation to removal. So everything that used to say deportation now says removal.

Really one in the same. Those concepts are used interchangeably. So if you hear people talking about removal or deportation from the U.S., it’s the same thing. The law was amended. Fun fact, last time it was amended was 1996. Congress.

Anyway, I digress. But those terms are used interchangeably, and it’s really one in the same. So the big case that everyone’s talking about, and I’m not going to go down a rabbit hole with this, I just need to provide it to you for context of our discussion today.

The Case of Kilmar Abrego Garcia

So we’ve heard a ton about an El Salvadorian named Kilmar Abrego Garcia. So he entered the United States in 2016. He fled his home country of El Salvador.

He was afraid for his life, so he fled to the United States. He lived and worked. However, he was arrested in 2019.

The government had some alleged gang activity. He was arrested. He was placed in removal proceedings or deportation proceedings, as you just learned.

An immigration judge listened to an entire case, and I’ll tell you more about that, and said, you know what, Mr. Garcia, you’ve proved that it’s too difficult and too dangerous for you to be removed to El Salvador. So the judge issued something called withholding of removal. Now, this is a technical legal concept that basically says it’s protection from being removed from the U.S. immigration law and system. If you can demonstrate that you departed your home country, in this case, El Salvador, because Mr. Garcia’s freedom would be threatened due to either his race, religion, nationality, political opinion, or membership in a particular social group. So the judge said, Mr. Garcia, too dangerous for you to go to El Salvador, issued withholding of removal. This was in 2019.

Fast forward, March of 2025, Mr. Garcia is at a store with his U.S. citizen child, gets arrested by ICE, Immigration and Custom Enforcement, for, again, related gang activity, despite being granted this benefit of withholding of removal, and is promptly removed and incarcerated in an immigration jail and is promptly moved to El Salvador, the very country that he claims was too dangerous for him to return to. So what the heck happened here?

This is a lot. This is difficult. Let’s break it down.

Understanding Removal Proceedings

How does one become deported or removed from the United States? Okay. I’m going to roll up my sleeves.

We’re going to do a Removal Deportation 101. Here’s how it works. So removal hearings, where do they happen?

Fun fact, you probably don’t know this, but in every major city in the United States, there is an immigration court and several immigration judges that hear these types of cases. They’re civil proceedings, not criminal. And these proceedings are the legal process that allows the U.S. government to remove non-citizens who are here unlawfully or, remember at the beginning, have violated our U.S. immigration law. This goes back to the 1950s. Not new, not a Trump policy. Think about it.

People are here. It’s a privilege, not a right. They do something bad.

Away they go. But there is a process. There’s due process under the U.S. Constitution for anybody physically present in the United States, not just citizens. And there’s also due process in situations like this that involve immigration violations. So how does one find themselves in immigration court? So Mr. Garcia, as the story goes, was arrested outside of a retail store, arrested by Immigration and Customs Enforcement. They are the agency under Homeland Security that has the power to arrest individuals and issue them what is called a notice to appear. It is a charging document. It says, Mr. Garcia, you are a native and citizen of El Salvador. Mr. Garcia, you are not a U.S. citizen. Mr. Garcia, the Immigration and Customs Enforcement allege that you’ve had the following gang activity, with a lot of information that we’re not going to be privy to. Mr. Garcia, please appear before an immigration judge on or about a specific date. That’s called a notice to appear. When I was an immigration attorney for the former INS, and I was in immigration court every single day, I looked at hundreds of notices to appear, which laid out the charges. This told me what the companion agency to the INS at the time was stating.

This was the government’s basis. This was the government’s reason for wanting to remove or deport the individual. So I would look at NTAs all day long.

It gets filed with an immigration court, and it triggers the removal or deportation hearings under the authority of another government agency, Executive Order for Immigration Review, which in our industry we call EOIR. Again, falls under the Department of Justice. We’ve got all these agencies under the federal government.

So what happens? Mr. Garcia is given his notice to appear, and a hearing gets scheduled. Now, the first hearing is not really intense.

It’s called a master calendar hearing. When I was the immigration trial attorney in immigration court every day in New York City at the beginning of my career, my master calendar days would have 30 or 40 cases on them, and we would just go one by one, alphabetical order. Okay, Mr. Garcia, the judge, the immigration judge, is going to read the charges. We allege, the government alleges that you have criminal or gang activity. The individual will respond and say not guilty or not guilty, but no, I don’t agree with this, or no, I need time for a lawyer, or no, I need more time to gather evidence. And then the judge will say, okay, Mr. Garcia, we have this written down. Please come back, usually a year or two or three years down the road, to what’s called an individual hearing. It’s exactly what it sounds like. There’s evidence, there’s testimony that’s presented, and a judge makes a decision.

You know, if you’re Mr. Garcia or any other person in immigration court, what rights do you have? Well, it’s sort of similar to criminal defendants, but not as generous or broad. So Mr. Garcia or anyone else in that situation does have the right to a lawyer, but not one provided by the government. So Mr. Garcia would have to seek out his own attorney. That attorney or Mr. Garcia can present evidence, call witnesses, there can be an interpreter available if needed. And also, like in other criminal courts or civil courts, the immigration judge’s decision is not the final decision.

It can be appealed, in this case, to the Board of Immigration Appeals. So Mr. Garcia gets his day in court at his individual hearing, presents a case to the immigration judge. The judge looks at all types of evidence.

And in this case, the judge looked at this and said, huh, Mr. Garcia has some pretty compelling evidence, and I don’t think he should be returned to El Salvador. I’m not going to get into the technicalities of this one, but Mr. Garcia had some U.S. citizen family, a child with special needs. So the judge granted some type of relief, and that type of relief was called withholding of removal.

Now stay with me here. Withhold, just think about it. The government charging document, the notice to appear, says we, the federal government, want to remove you.

Under the immigration law, there’s a provision that says withholding of removal, saying the judge can say, time out here. I want to withhold your removal. I want to keep you in the United States.

So what’s that basis for withholding of removal? Well, as I said earlier, it’s a form of protection under the U.S. immigration law for individuals who can, if they demonstrate if they’re removed or deported, their life or their freedom would be threatened due to race, religion, nationality, political opinion, or membership in a particular social group. This is an alternative to asylum and is usually granted when someone’s ineligible for asylum.

Okay, in this case, here’s a nuanced immigration fact. To file for asylum or use it as some type of relief from being deported or removed, you have to file within one year of entering the U.S. In our case, Mr. Garcia entered in 2016. He was arrested in 2019.

So if I’m his immigration lawyer, I’m going to say, whoop, can’t use asylum because more than a year has passed. So withholding of removal, Mr. Garcia and his team would have to show it’s more likely than not, greater than 50 percent, that he would face persecution on protected grounds if returned to El Salvador. And this is a pretty high standard.

The withholding of removal is mandatory if the applicant meets the legal standard. The judge has to grant it and only a judge can grant it. So a judge did this in 2019 and Mr. Garcia was like, great, I don’t have to go back to El Salvador. Me and my team have met the burden of proof of more likely than not, which is greater than 50 percent. So I am good. Or so he thought until March of 2025, when he’s outside another retail establishment and gets picked up by Immigration and Customs Enforcement.

Due Process and What Went Wrong

And this is where it gets really weird. So he was picked up by them once before in 2019, had lawyers, had an entire trial before an immigration judge. Judge said, not safe for you to return to El Salvador.

We’re issuing you withholding of removal. That means you can remain in the United States and not have to go back to El Salvador, a place that you fear. Well, now he’s living in the U.S., he’s working, has U.S. citizen family, checking in regularly, had a valid work permit. And then one day he’s pulled over, sent to an immigration jail and facility, and is ultimately sent back to El Salvador, the very place that he fears. How the heck did this happen? Well, my friends, let me tell you, I worked for the federal government for five years.

A lot of people in the government system. We are a huge country, 330 million people. Damn, stop comparing us to Canada or Australia.

We’re 10 times bigger than them. Anyway, I digress. What happened?

Who the heck knows? Seems like the government may have made an error on this one. I don’t know.

What we don’t know was, you know, are there additional charges in front of, before Mr. Garcia? Does the government have additional evidence? I don’t know.

Really, really hard, though, for the federal government to overturn and or ignore withholding of removal by an immigration judge, right? We have these administrative proceedings. They’re criminal.

Mr. Garcia had his day in court. He proved his case. The judge agreed.

He’s living his life. And then all of a sudden, he’s fast-tracked to be deported. Not a good look, federal government.

Not a good look, Trump administration. Does this happen? Yes.

Why does it happen? Really busy system. When I was a federal employee, the left hand did not always know what the right hand was doing.

This administration is moving fast and furiously. They are putting their mark on U.S. immigration. They want to get rid of the bad guys.

Remember on the campaign trail, mass deportation, largest deportation in American history. Let’s go. The government wants the bad guys out.

Average person doesn’t have an issue with that. But remember, we have a U.S. Constitution that affords due process to anybody in the United States. Mr. Garcia had his day in court. A judge decided not safe for him to return home. And then we have the bunch of years later, try to undo that without a lot of info. Personally, if I have to guess on this one, I’m going to guess the government made a mistake, but we don’t know what law enforcement has.

We’ll never know that. It’s national security privileged information. Who knows?

But the bare bones of this case and how it all fell together or apart, we don’t really know what’s going on here, but we do want to make sure that we live in a country that respects its own legal system. And we do want to make sure that people like Mr. Garcia, if there is nothing else on his record, the ruling by the original immigration judge should hold. So who knows what’s going to happen, but what’s really more important, aside from the belittling that this is not an important case.

It truly is. But so many people are like, oh, he got deported or, oh, we can just remove people. We cannot.

Do you know why mass deportations have not occurred? Because every single person in the United States is afforded a judicial process and due process under the law. There’s a lot of people in the system.

Trump administration has been chirping saying, ah, we don’t have time. We can’t get rid of all these people. We don’t have time for due process.

Well, guess what? We need to make time for due process. It’s a cornerstone of United States constitutional history.

And we need to see how this is going to shake out. Again, fast and furious administration, they are going crazy on trying to remove people. But remember, three branches of government, executive, legislative, judicial, they all are checks and balances.

Let’s see what’s going to happen with this case. And remember, when someone says to you, well, these people are here illegally, they don’t have any rights, blah, blah, blah, you’re wrong. Anybody in the United States has rights under the Fifth Amendment of the U.S. Constitution to due process. We have a whole system. There’s immigration courts, there’s judges, there’s federal judges, there’s federal lawyers. I used to be one of them.

There’s private counsel. We have a system and we are a system of law and order and checks and balances. So we’ll see how this one shakes out.

But remember, your key takeaway, you can’t just remove somebody without giving them their day in court. That’s un-American, it’s unconstitutional. We’re going to see how this plays out.

But remember, due process for all under the U.S. Constitution. So thanks for listening. I’m Rosanna Berardi.

I’ve been on that side of the immigration court prosecuting individuals. I’ve also been on the private side too, defending them. Complex stuff.

Thank you for listening to Immigration Weekly with Rosanna Berardi. Be sure to subscribe to our podcasts, share this with your friends. Remember, you want to be the smartest person sitting around your dinner table.

And you want to know when you’re watching NBC News or Fox News, how this really works. So until next time, make it a great day. This was Immigration Weekly with Rosanna Berardi.

Thanks for joining. Be sure to connect with me, Rosanna Berardi on LinkedIn, or go to our law firm at berardiimmigrationlaw.com. And if you don’t want to miss the latest and greatest, be sure to subscribe to the podcast and share this with your friends.

Subscribe to the Show on Apple Podcasts, Spotify, Amazon Music, or YouTube. 

Connect with Rosanna Berardi on LinkedIn