Former Judge Andrew Napolitano told Newsmax on Thursday that the Trump administration could have avoided a judge's ruling that Kilmar Abrego Garcia is "entitled" to a trial if their attorneys had cited "another statute that doesn't require due process" instead of the Alien Enemies Act.
The judge presiding over the case, U.S. District Judge Paula Xinis, last month ruled that Garcia is "not a gang member" and is "not deportable" despite the administration's decision to deport him to a prison in El Salvador.
Napolitano said on "National Report" that whether or not Garcia is a member of the gang MS-13, he is "entitled to fairness and due process, meaning a trial," according to the court's ruling because the Trump administration cited the Alien Enemies Act when deporting him and not "another statute that doesn't require due process."
Napolitano later noted that the Obama administration used a different statute to justify deporting millions of illegal immigrants without encountering objections from courts.
"Well, it goes back to the Supreme Court's reading of the Alien Enemies Act, which says he's entitled to a hearing," Napolitano said. "Now, he's had two hearings … during Trump's first term, and the Trump administration lost both of those hearings."
Napolitano noted that in one of his earlier court appearances, Abrego Garcia "gave some sort of an explanation about" the tattoos on his hands, which the Trump administration claims are gang symbols and evidence of his membership in MS-13, "the essence of which was they wanted me to get to join, they recruited me to join, they threatened me to join, and I did everything I could to resist them, including putting tattoos on my fingers."
Napolitano said that this explanation "satisfied the judge that he wasn't a gang member. … Now, of course, I wasn't the judge. I wasn't in the courtroom. But this immigration judge who works for the Department of Justice, the Trump Department of Justice, believed him and ruled he's not a gang member. He's not deportable."
During a hearing last month, an attorney for the Justice Department, Erez Reuveni, told the judge that there was an "absence of evidence" to explain why Abrego Garcia was arrested. Reuveni was later demoted from his position for failing to "zealously advocate on behalf of the United States."
Napolitano added: "I don't want us to get too deep into the weeds. You know, he's obviously an imperfect human being, but even imperfect human beings are entitled to fairness and due process, meaning a trial. That's basically what the court ruled, because that's what the [Alien Enemies] Act says."
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