Judge gives suspected gang member three days to appeal before deportation

ALEXANDRIA, Va. (CN) — The U.S. Department of Justice can forego a trial for an alleged gang leader, but prosecutors must not immediately turn him over to the Department of Homeland Security for deportation, a federal magistrate ruled Tuesday.

Instead, an attorney for Henrry Josue Villatoro Santos, 24, will have until Friday to ask the court to consider restraining Immigration Enforcement and Customs officials from whisking the man off to a prison in El Salvador.

Villatoro Santos was charged with possession of a firearm by an alien illegally in the U.S. He was arrested after a raid on his mother’s home in Woodbridge, Virginia, on March 27. Afterward, U.S. Attorney General Pam Bondi described Villatoro Santos as an MS-13 leader for the East Coast and “one of the top three in the country.”

Less than two weeks later, Bondi’s office filed a motion calling for dismissal of the case. In subsequent court filings, Muhammad Elsayed, the attorney for Villatoro Santos, accused the government of short-circuiting the justice system.

“Immigrants have due process rights,” Elsayed argued during a tense 20-minute hearing Tuesday. The attorney worried that his client would be whisked off and deported in the manner of Kilmar Abrego Garcia, a Maryland man mistakenly sent to a high-security prison in El Salvador. The attorney charged that the Department of Justice is dropping the case against Villatoro Santos “to facilitate a lawless action.”

It isn’t within the court’s purview to interfere with prosecutorial decisions, noted Magistrate William E. Fitzpatrick of the United States District Court for the Eastern District of Virginia. While he granted the government’s motion to drop the case, he delayed entry of his order until 10 a.m. on Friday. After that, the Department of Homeland Security will take custody of Villatoro Santos unless the court intervenes.

Dressed in a green jumpsuit, Villatoro Santos sat beside Elsayed and a language interpreter during the hearing. His sister attended the hearing but declined to talk to reporters afterward.

Salvadoran authorities could immediately detain Villatoro Santos at a maximum-security prison, based on the U.S. government’s public pronouncements that he is a “top leader” of MS-13, Elsayed argued in court filings. On Truth Social, President Donald Trump described Villatoro Santos as a “major leader of MS-13.”

Elsayed characterized the decision to drop the criminal case and deport Villatoro Santos as “clearly a political decision made at the highest political levels.” A factual basis for the case against Villatoro Santos has not been developed, he added. But John C. Blanchard, assistant U.S. attorney, asserted that the government intends to follow the law.

Villatoro Santos was arrested on an outstanding administrative immigration warrant, according to an affidavit filed by Jason Klepec, a deportation officer with ICE. During a search of the man’s bedroom, officers found a 9-millimeter handgun, three additional firearms, ammunition and two suppressors. They also observed indicia of MS-13 association in the room. In Prince William County, where Villatoro Santos lived, he had run-of-the-mill issues with police and was charged with possession of marijuana, driving without a license, failure to have a vehicle inspected and operating a vehicle without insurance.

The case has unfolded as the Trump administration is under fire over an aggressive approach to deportation using the Alien Enemies Act, a wartime authority that allows the president to target foreign nationals of a hostile nation or government.

A federal judge on April 9 ordered that the administration must provide notice and a court hearing to immigrants the government seeks to deport under the Alien Enemies Act.