STRAIGHT TO HELL

there's no going back for Kristi Noem now

“There ain't no asylum here.”

—The Clash, “Straight to Hell” (1982)

Twenty days ago as I write this, DHS Secretary Kristi Noem:

(1) sent this hardworking father of a young autistic U.S. citizen child to hell based on an “administrative error,” and

(2) now has no intention of ever bringing him back

These are accurate statements of legal fact, as acknowledged by the federal government via an affidavit filed by Harlingen (TX) ICE Field Office Director Robert Cerna.

I don’t get angry, as a person. But I do get angry as a lawyer¹—I was about to say “more often than I’d like to admit,” which says everything about how thoroughly we are conditioned by law school and professional norms to keep ourselves out of our work. But keeping humanity out of the work is exactly how they get lawyers to carry out shockingly cruel acts of administrative violence like this one.

I am still in a state of soft ambient rage as I write this. It comes in waves. I have been trying to write about Kilmar Armando Abrego Garcia since Monday, and every time I go back to the docket to re-read something I just get angry again. I have seen the US immigration system do a lot of terrible things to good people, but what this man is now enduring is a nightmare beyond the boundaries of my legal imagination.

Abrego Garcia could be any one of many of the Salvadoran men I have represented in deportation proceedings in the past 18 years. He got on the wrong side of MS-18 when he tried to protect his mother’s business from extortion, and had to leave to escape forcible recruitment after his sisters were threatened with rape and murder even after the family tried to leave the gang’s territory.

In 2019, Abrego Garcia was accused of being a gang member himself by an unnamed informant hours after being harassed by local cops in the Home Depot parking lot where he usually hung out waiting for construction jobs. He was arrested, detained by ICE, and denied bond as a precaution pending further proceedings.

An immigration judge reviewed his situation, heard out his fears of return based on gang violence, and found that Abrego Garcia was not a gang member but had in fact himself suffered persecution by gangs. The judge granted him “withholding of removal,” a form of protection from deportation which is much less powerful than asylum, but much better than actual deportation. WOR essentially enters an order of deportation, but withholds that order as to your home country only while keeping the door open for ICE to locate a third country which might be willing to take you instead. It guarantees a form of lawful status and the right to work, but it is not a pathway to residency or citizenship.

People who have been granted withholding of removal are generally safe from any further enforcement action so long as they don’t commit serious crimes. But on March 12, ICE agents stopped Abrego Garcia—who has no criminal record—and took him into custody, telling him only that his immigration status had “changed.”

The government has done its best to explain the inexplicable here, but even from its own filings what happened next was pretty clearly a mistake. Per the Cerna affidavit excerpted above, ICE was trying to pull together several flights to send to El Salvador and needed people with final removal orders. Kilmar Abrego Garcia technically had a final order, but the government was not legally permitted to execute that order. ICE acknowledges that it was aware of this, but that he ended up on a plane anyway.

“The manifest,” Cerna’s notes in his affidavit, “did not indicate that Abrego-Garcia should not be removed.” The government’s passivity in the face of its own incompetence really can be too much sometimes.

As the world well knows by now, ICE was ordered on March 15 by federal judge James Boasberg to stop all removals under the Alien Enemies Act. The third flight which left that night has been mostly overlooked by the media coverage because it was allegedly filled with people who already had regular Title 8 removal orders,² but it’s pretty well indisputable that ICE knew that they didn’t have any lawful authority to deport him to El Salvador unless or until an immigration judge had revisited the withholding order. Because that’s the law, for whatever that was still worth as of March 15, 2025.

So let’s just start with the simple fact that an immigration judge specifically found that he had a well-founded fear of return to El Salvador due to persecution by gang members and end with the idea that we just “mistakenly” sent him back to a tortuous warehouse in El Salvador filled with gang members.

I’m getting angry again. Why is Kristi Lynn Arnold Noem doing any of this?

KRISTI NOEM AND THE FACES OF FASCISM

I recently remembered that I spent a few hours last January listening to the then-South Dakota governor tell me her life story³ just before she was confirmed as Secretary of Homeland Security, a time investment which you might think would qualify me to answer these questions.

It does not.

I usually take a lot of notes when I am listening to books, but I barely got two pages worth out of No Going Back. I mean I wasn’t expecting Kierkegaard or anything here; this was a fluffed-up campaign website of a book “written” by a backwater governor who was “running for President” for the sole purpose of getting enough attention to score the Trump Cabinet position which she now holds. But No Going Back was forgettable even by those low standards, just unforgivably dull.

There is one quote from the book which has been burned into my brain, though. I’ve thought of it every time that I have seen her face since I heard her say it.

“Hard decisions,” Noem said in my ear with the mild conviction of a volunteer neighborhood Planning and Zoning committee member who has taken the floor to oppose permitting a local Burger King “are not really that hard.”

Hard decisions are really not that hard.

I mean personally, and this is just me I guess, if I knew that I were overseeing an agency which had just mistakenly sent someone on a one-way trip to hell⁴ I would not be able to sleep or eat or think of anything else until I knew that that this was at least on its way to being undone. I certainly wouldn’t go to visit the prison he was in after he had sued me for his release, brag about having sent him and 237 other people there, and then make a creepy PR video using the opportunity to discourage others from seeking asylum in the US.⁵

Abrego Garcia’s able counsel Simon Sandoval-Mosheberg makes the point better than I will in this outstanding filing:

You know I have to say: whatever else these times are taking from us, they are giving us some really exemplary lawyering.

Hard decisions are really not that hard.

Here’s a decision which shouldn’t really be that hard at all: you are the governor of a state with a population of nearly 1 million people which is suffering from severe floods. Do you send your limited National Guard troops to assist people who have just lost their homes, or do you maybe instead send the National Guard to the Mexican border more than 1000 miles away to make headlines in support of your vanity Presidential campaign? (You’ll certainly believe the answer!)

“Hard decisions are really not that hard” is not a thing that anyone who had ever had to make a truly difficult decision on behalf of someone else would ever say as if it meant something. I’ve never been the governor of anything, but I do feel like I have some authority to say this as a person who advises clients on some of the most difficult decisions that they will ever have to make about their futures, and who has more often than not been deferred to as the person ultimately responsible for making these decisions for going on two decades.

Hard decisions really are hard. That's why they're called “hard decisions,” Kristi.

The fact that this person signed off on an autobiographical book which included the sentence “hard decisions are really not that hard” should have been pretty much disqualifying for any future public service, but I will hardly set the world on fire here by noticing that so should a lot of other far worse things.

It's also hard to imagine any former American governor less qualified to enforce US immigration law than the one running a state of barely one million people (of which not even 40,000 are foreign-born)—but that inexperience is exactly why she was elevated to running the world's most powerful deportation force.

Kristi Noem, like her predecessor Krisjten Nielsen before her, is—and I’m sorry, but I’m writing quickly here and there’s just no other way to say it—a DC 10. She is a hot white lady. I promise that I would usually go pretty far out of my way not to notice this kind of thing even here in a glorified personal journal entry, but it bears mentioning here solely because hot white ladies have never been mere accessories to fascism.

Fascism absolutely requires the buy-in of a dedicated corps of hot white ladies.

Anyway, Noem looks like this:

And not to put too fine a point on it here, but the people who are actually planning and carrying out our unspeakably fascist immigration policies look like—well, they look like fascists. Because they are fucking fascists, and I’ll keep saying it until they do the thing to me that fascists always do to people who make fun of them.

Anyway, here's the hot white lady who ran DHS for most of Trump’s first term alongside Stephen Miller and Tom Homan.

I want to be careful not to directly compare Kristjen Nielsen to Kristi Noem, because unlike Noem there was never any question that Nielsen was actually well-qualified to lead DHS. She was in charge of the agency for not even two years, but she will always have the legacy of having overseen the administration’s traumatic separation of children from their parents at the border as a “deterrent” despite specific and explicitly direct advice from child psychologists that this would inevitably cause lasting harm to the kids (let alone the parents). We know from the 2019 book Border Wars that the only reason she waited to off on this policy for as long as she did was because she wanted to be sure that she (and not Jeff Sessions) received credit for it with Trump.

There are still over 1,000 children from this disgusting fiasco who have never been reunited with their parents. Nielsen is not only inexplicably now free to live her life outside the walls of The Hague, but is now profiting tremendously from her prior “service” as a professional board member.

While I do think that there is a solid feminist point to be explored here around authoritarian societies intentionally using attractive women as a benign front for the worst things that people can do to each other, I also think it’s one better made by a non-man.

But one more anyway. Here, without comment, is a picture of the guy who has been de facto running the Department of Justice since January 20th.

And here is the Attorney General.

“THE WORLD’S COOLEST DICTATOR” OPENS A NEW CIRCLE OF HELL

I don’t believe in the theological concept of hell, but you don’t have to believe in hell to know that it exists. Hell is a place where you are completely dehumanized, stripped of your clothes and hair and dignity and purpose and any benefit of any doubt that you might ever have been entitled to as a member of the human race and thrown into a warehouse full of metal bunks and ultraviolent former child soldiers without a blanket, a pillow, or a single prayer of release.

El Salvador didn’t always have the world’s highest per capita incarceration rate.⁶ That developed after winsome authoritarian President Nayib Bukele was elected on a soft fascist platform which included arresting and locking up tens of thousands of young men who may or may not be gang members indefinitely in a brutal gulag called the Centro de Confinamiento del Terrorismo (“CECOT”).

And here’s the real problem: it worked. Unrestricted gang warfare was absolutely destroying El Salvador, and it was pretty much solely responsible for the waves of emigrants who made it (along with other Northern Triangle countries of Guatemala and Honduras) the top source of unauthorized border crossers for most of the 21st century.

Gangs are a virus, a social pandemic borne of poverty and deprivation and hopelessness and human failing. They can infect anywhere, everywhere, and all for the same reasons.

And Bukele cured it. After years of more traditional mano dura policing strategies failed, the self-described “world’s coolest dictator” leveled up from a brutal hard hand to a merciless iron fist. Arresting young men with tattoos who have been seen anywhere near a gang and locking them up for the rest of their lives in horrific conditions with no due process was the cruelest possible solution to the problem, arguably even worse than executing them on sight—and it worked. At least for a given value of “worked.”

Just to keep the theme going, here’s what Nayib Bukele looks like:

I have personally represented hundreds of people who fled Central American gang violence, and I have never doubted any of their stories. If you haven’t ever actually imagined what having every part of your life made worse—if not impossible—by criminal gangs would be like, I’d like to invite you to do that now.⁷ Imagine knowing that a local gang leader could take interest in you for some stupid reason, or no reason at all, and end any chance you had at a peaceful life. Imagine knowing that building a successful business will only result in it being noticed and extorted by gang members. Knowing that your sons are being recruited to join, and that your daughters are in constant physical danger of men who are completely beyond any accountability. Imagine living with the reality in which you have to map your steps to know which gang’s territory you are in on any given block, and where “safety” or “peace” are foreign abstractions.

This was life for my Salvadoran clients around many parts of the country for decades at a time. Bukele offered—and, unfortunately, provided—the same solution that ChatGPT probably would: lock up everyone gang-affiliated, gang-involved, gang-adjacent, gang-curious, or pretty much every second cousin twice removed of every gang member you can find and never let them leave. If you bring charges (and this is apparently optional), secure multiple lifetime sentences. Suffocate, electrocute, humiliate, and murder⁸ prisoners at will. It’s a sprawling playground of fascist torture and dehumanization, and no doubt Trump would be happy to send the entire cast and crew of Saturday Night Live—let alone the rest of us—to spend the rest of their lives here. (U.S. citizens are pretty clearly next once they have normalized what Noem called in her visit to CECOT “another tool in our toolkit.”)

I’m reading this back now wondering if any of it is coming off as admiration. It’s certainly not meant to, but I will also admit that Salvadoran gang violence is a problem that I have been thinking about in a more than incidental way for going on two decades and that it is an abiding relief to see it gone. I haven’t yet met a Salvadoran in the US who completely opposes what Bukele has done, and I can’t say that I blame them at all. It’s easy to get philosophical about due process rights when I live in one of the safest major cities in the US, a place where I gladly walk the streets at 2 AM without giving a second thought to my safety.

Anyway, this is where we’ve just sent a man over an “administrative error,” and where the U.S. government is now saying out loud that we can’t get him back from.

This particular situation is completely unprecedented, but mistakes do inevitably happen in a system this massive and ICE does exactly what to do with them. I had a case in 2007 (within the first year of my career as an immigration attorney) in which ICE mistakenly—and I do actually believe that it was a good-faith mistake, from everything I learned after—deported a client while there was an automatic stay of his removal in place. The Bush administration was surprisingly good about working with us to return him with an order of parole, and we were welcoming him at Logan International within a week or so of his removal.

But that was then. DOJ’s official line is now that there is no legal or practical way to secure Abrego Garcia’s return from the place they recklessly kidnapped and shipped him off to. Their arguments amount to (1) there’s no legal basis to challenge this, (2) we can’t get him back and (3) it’s not like we broke the law or anything, this was a mistake so let’s just chill here.

This has to be the most unusual habeas claim in 810 years of habeas history. As the government has correctly noted, the Great Writ is a legal action to compel someone’s jailer, not the people responsible for jailing him. But those people are all that a federal court can reach now.

In arguments yesterday, veteran DOJ Office of Immigration Litigation attorney Erez Reuveni was unable to justify or explain the federal government’s choices in this case. He openly admitted to being personally “frustrated” that he couldn’t answer judge Paula Xinis’s most basic questions about ICE’s authority to do any of this, and warned the judge that his answers were going to be “frustrating.”

This honesty has earned him an immediate forced leave for his failure “to zealously represent” the government and left room for one more honest DOJ lawyer to be replaced by someone who is not so easily frustrated by lawlessness.

For her part, Judge Xinis ordered that U.S. officials arrange for Abrego Garcia’s return no later than 11:59 PM on Monday April 7th. The Trump administration continues to insist that this is not possible, despite the alleged (non-public) $6 million deal under which the US is essentially leasing bed space to hold our detainees.

The Salvadoran head of state’s official response to this order was to post a short video clip of a confused cartoon rabbit.

This trite meme-ification of a man’s safety and freedom by the one person on the planet who could restore both with a ten-second phone call is just as horrifying as anything else in this story. But Bukele might have a point: although the US government should have the right to call in any deal we might have made and request any given detainee back, Abrego Garcia is one of the few of the 238 men flown out of the US⁹ on March 15th who was actually Salvadoran. In the eyes of his own government, he is just another accused gang member with tattoos. Bukele has no incentive at this point to allow Abrego Garcia to be the first person to leave the CECOT alive, and if anything standing up to Judge Xinis on this will further leaden his iron fist at home while staying on the right side of Trump and Rubio happy.

Anyone who is in any way involved in this case—judges, lawyers, ICE officers, pilots, everyone—should be required to read the statement filed by Abrego Garcia’s wife Jennifer Vasquez.

Anyone who is not moved to tears, to anger, and/or to action by her words and the overwhelming horror of what she and her husband are going through has no business anywhere near government. And anyone who is has every reason to be terrified of anyone who isn’t.

1. I have developed a theory of self in therapy which explains my complete alienation from personal anger even while I operate at a state of silent quaking rage as an advocate, but I have an actual journal for this kind of thing.

2. As opposed to the willful lawlessness of pretending that the Alien Enemies Act somehow applied

3. I told myself that my (mercifully discounted) Audible purchase of Noem reading her campaign book No Going Back was research for an upcoming episode of Opening Arguments, but the truth is it was really just something mindless to listen to while I got going on the new Elden Ring expansion.

4. by mistake or otherwise, but let’s focus on the “mistakenly” part for now

5. But I also wouldn't agree to be the Secretary of the Homeland Security if you put a loaded shotgun to my head—literally just kill me—so maybe that's just me.

6. Approximately 2% as of the time I’m writing this

7. It’s really worth considering that this is not a totally unforeseeable outcome for entire swathes of the US in the coming decades. Chaos loves a vacuum, and gangs will always rush in to fill the one left where government used to be. The world’s most heavily-armed country can’t possibly be immune.

8. There have been nearly 300 known deaths in the CECOT, and it has barely been open for two years

9. they were not “deported” by any legal means, and I’m really trying to be sure not to use that word