The Justice Department filed a motion Thursday to drop all charges against a Salvadoran man whom Attorney General Pam Bondi described two weeks ago as one of the top leaders of the MS-13 gangs in the country.
The motion was filed after Bondi, flanked by FBI Director Kash Patel, Virginia Gov. Glenn Youngkin and other law enforcement officials, had announced the arrest of Henrry Josue Villatoro Santos, 24, at a news conference.
Bondi said Villatoro Santos had taken part in “very violent crimes, anything you can associate with MS-13. He was the leader over it — all of the violent crimes.”
President Donald Trump celebrated the announcement on social media and praised his “border czar,” Tom Homan. “Just captured a major leader of MS13,” Trump wrote. “Tom HOMAN is a superstar!”
But court documents unsealed after Villatoro Santos was arrested made only one reference to the allegation that he was affiliated with MS-13. The document said, “FBI agents and [task force officers] also observed indicia of MS-13 association in the garage bedroom” of Villatoro Santos’ home.
A federal agent then testified at a preliminary hearing in federal court that a SWAT team member found a figurine of “Jesus Malverde,” a Mexican artifact sometimes associated with drug cartels and MS-13, in Villatoro Santos’s bedroom.
Court documents show agents also seized four guns, a suppressor and ammunition.
An immigration agent testified at the hearing that Villatoro Santos first entered the country illegally through the southern border in 2014.
Justice Department officials had said they would prosecute Villatoro Santos crimes it alleged he committed in the United States before it would have him deported.
In a one-page filing submitted to the court Wednesday, prosecutors asked a federal judge to dismiss the only charge, unlawful possession of a firearm by an alien. They did not explain why.
Then, late Wednesday, the Justice Department issued a one-line statement from Bondi in response to questions about the case: “As a terrorist, he will now face the removal process.”
Villatoro Santos’ lawyer, Muhammad Elsayed, filed his own motion late Wednesday asking the court to hold off on granting the government’s request for 14 days.
Elsayed argued that a dismissal of the criminal case would lead to Villatoro Stantos’ immediate deportation “without due process and before he has an opportunity to retain immigration counsel and assert any defenses he may have to removal.”
“The danger of Mr. Villatoro Santos being unlawfully deported by ICE without due process and removed to El Salvador, where he would almost certainly be immediately detained at one of the worst prisons in the world without any right to contest his removal, is substantial,” Elsayed wrote.
The Trump administration and the Justice Department have recently moved to deport people alleged to be members of gangs such as MS-13 using the Alien Enemies Act, a process that bypasses the normal procedures of deportees’ having their cases considered in immigration court.
“The risk of turning this effectively into a life sentence without any due process is very real,” Elsayed wrote in the motion.
Justice Department officials have not said whether they would seek to deport Villatoro Santos under the Alien Enemies Act or whether they would use another legal argument.
A spokesperson for the U.S. attorney’s office in Alexandria, Virginia, declined to comment on the case.
Villatoro Santos remains in custody pending a hearing set for next week to discuss both the motion to dismiss and the motion for a 14-day delay in the dismissal proceedings.
In an order issued Thursday, Magistrate Judge Lindsey R. Vaala said that “the Court finds that a hearing would be useful.”