WASHINGTON — A federal judge on Tuesday granted the Justice Department’s request to dismiss the criminal case against the alleged MS-13 gang East Coast leader whom prosecutors say they now intend to deport just weeks after top government officials celebrated his arrest outside of Washington.
Henrry Josue Villatoro Santos‘ lawyer in an usual request urged the judge not to immediately dismiss the case, saying he feared his client would be deported to an El Salvador prison without a chance to challenge his removal.
“This was clearly a political decision,” defense attorney Muhammad Elsayed told the judge of the choice to deport Villatoro Santos.
The motion to dismiss was filed shortly after the Justice Department made a “high profile spectacle out of him,” Elsayed added.
But Magistrate Judge William Fitzpatrick said during a hearing in Virginia that judge cannot second-guess prosecutors’ decision not to pursue a case, and that the criminal court isn’t the proper place to seek relief from deportation.
Villatoro Santos will not be handed over to immigration authorities until Friday morning, however, as the judge decided his ruling won’t go into effect until later this week to give the defense a chance to potentially explore other challenges.
Attorney General Pam Bondi, FBI Director Kash Patel and Virginia Gov. Glenn Youngkin held a press conference last month to announce the arrest of Villatoro Santos, whom they described as one of the top three MS-13 leaders in the country.
President Donald Trump also posted on social media touting his arrest, calling him a “major leader.”
But he was only charged in federal court with a gun offense stemming from several firearms during the search of his home, according to court papers.
Investigators said they found “indicia of MS-13 association” in his bedroom but prosecutors have provided no other details in court documents about his alleged gang involvement.
Villatoro Santos’ lawyer declined to comment to reporters after Tuesday’s hearing.
Elsayed argued there’s a serious risk his client will be sent to El Salvador’s notorious Terrorism Confinement Center, or CECOT prison, like hundreds of other alleged gang members deported last month without an opportunity to challenge their removals.
Elsayed said he has been unable to get assurances from the federal government that he will be placed into the ordinary removal process and not just “whisked off” on a plane to El Salvador.
The Supreme Court has since said that alleged Tren de Aragua gang members must have an opportunity to challenge their removal before being removed under the Alien Enemies Act.
