Vice President JD Vance tangled with a critic on X over the status of Kilmar Armado Abrego-Garcia, an immigrant living in Maryland who was deported by the Trump administration to an El Salvador prison.

Citing an article in The Atlantic, liberal podcaster and former speechwriter for President Barack Obama Jon Favreau accused Vance in a March 31 X post of "accidentally sending an innocent father from Maryland to a torture dungeon in El Salvador."

The following day, Vance posted on X, "According to the court document you apparently didn’t read he was a convicted MS-13 gang member with no legal right to be here. My further comment is that it’s gross to get fired up about gang members getting deported while ignoring citizens they victimize."

Court records and interviews with legal experts agree that Abrego-Garcia has never been convicted of a crime in the U.S.

"Public figures, especially those like Vance who hold high office, should be precise with their words," said David W. Leopold, an immigration attorney and former president of the American Immigration Lawyers Association who is not a party to Abrego-Garcia’s case.

Vance’s office did not respond to inquiries for this article.

Abrego-Garcia’s case

Abrego-Garcia’s case became national news in the context of the Trump administration’s aggressive deportation policies, including its use of an El Salvador prison as a destination for deportees it alleged were criminals or gang members. News reports have said that the government used people’s tattoos and social media posts as evidence of their gang involvement.

In 2019, Abrego-Garcia was granted a restriction against being deported to El Salvador because when he was a minor living in El Salvador, a gang had tried to recruit him and extort money from his mother, leading to death threats. He illegally immigrated to the United States Abrego-Garcia was eligible to be deported to other countries.

U.S. Immigration and Customs Enforcement lawyers acknowledged in a March court filing that they were aware of the restriction on deporting Abrego-Garcia to El Salvador and called his removal an "oversight" and "an administrative error."

Abrego-Garcia’s attorneys have sought to reverse his deportation, but the government has argued that since he has left U.S. jurisdiction, it cannot take action. Justice Department attorneys also say Abrego-Garcia’s attorneys have "not clearly shown" that he would be tortured or killed in El Salvador.

Abrego-Garcia has been in immigration authorities’ radar for years. 

In March 2019, he and several other men were questioned by police at a Home Depot, Abrego-Garcia’s attorneys have said in court filings. When the police asked for information about gang members, Abrego-Garcia said he had no information, but one of the other men accused him of being in a gang.

Because of this accusation — which Abrego-Garcia’s attorneys have repeatedly denied in court, saying it was fabricated — Abrego-Garcia was taken into ICE custody, where judges denied bond, both initially and on appeal, citing the police informant’s accusation. When he received the protection from deportation to El Salvador, he was released from ICE custody, and he eventually worked as a sheet-metal apprentice in Maryland, got married to a U.S. citizen and had a child.

Vance cited the testimony from the Home Depot incident to identify Abrego-Garcia as a gang member. Other White House officials have also publicly described Abrego-Garcia as a gang member, including White House Press Secretary Karoline Leavitt, who told reporters that it is a "fact" that he was "a member of the brutal and vicious MS-13 gang," without presenting evidence. Leavitt further accused Abrego-Garcia of taking part in human trafficking, again presenting no evidence.  Abrego-Garcia’s lawyers have denied the accusations.

Was Abrego-Garcia ever convicted?

Simon Sandoval-Moshenberg, an attorney for Abrego-Garcia, told PolitiFact that his client has "never been convicted of any crime, gang-related or otherwise," and we also found no court evidence he had been convicted.

In 2019, Baltimore-based immigration judge Elizabeth Kessler denied Abrego-Garcia’s initial bond request, writing that "the determination that (Abrego-Garcia) is a gang member appears to be trustworthy and is supported by other evidence in the record, namely, information contained in the Gang Field Interview Sheet," referring to the testimony of the people with Abrego-Garcia at the Home Depot. Kessler cast doubt on law enforcement’s reliance on "clothing as an indication of gang affiliation," but she found "the fact that a ‘past, proven, and reliable source of information’ verified the Respondent’s gang membership." 

When Kessler’s ruling was appealed, it was upheld. 

"We adopt and affirm the Immigration Judge’s danger ruling," the decision says. The decision rejected challenges to the reliability of the statement provided by the informant at the Home Depot, saying the judge "appropriately considered allegations of gang affiliation" against Abrego-Garcia.

However, neither of these court proceedings constitutes a conviction, because they were not trials. A request for bond from ICE detention requires less evidence than a criminal conviction.

Abrego-Garcia "was denied bond because of allegations of gang membership, not because he was convicted of a crime," Leopold said. Indications of gang membership, "even if baseless, are often used to make critical decisions about a noncitizen’s custody status," he said.

Rick Su, a University of North Carolina law professor who specializes in immigration law, said Vance’s use of the term ‘conviction’ isn’t valid. Su said he’s seen public officials use "criminal-like terms, like ‘criminal alien’ … to suggest that simply violating civil immigration laws constitutes a ‘crime.’"

Sandoval-Moshenberg said that when Abrego-Garcia received the order of protection from deportation to El Salvador, ICE did not appeal the decision, and he received a work permit upon his release, which he has since renewed.

Legal experts told PolitiFact that the differences between immigration law and criminal law can be confusing. They said a person can be deported even without a criminal conviction.

Su added that "being a ‘gang member’ is not by itself against the law." Gang members might commit crimes, and gang membership could potentially increase the penalties if they are convicted, he said. "This is why it was so hard to convict people in organized crime," Su said. "You had to actually catch them doing a crime, not just allege they were a member."

Our ruling

Vance said that Abrego-Garcia "was a convicted MS-13 gang member."

Abrego-Garcia’s attorney said his client has never been convicted of any crime. We also found no evidence that he has any convictions.

Vance appears to be referring to two denials of bond requests in which immigration courts used allegations that Abrego-Garcia was in a gang as a reason for their denial. Abrego-Garcia’s team denies that he’s a gang member and — he has never been put on trial for or convicted of criminal charges.

We rate the statement False.