Left: Henrry Josue Villatoro Santos (Alexandria Sheriff’s Office). Right: Attorney General Pam Bondi speaks with reporters at the White House, Tuesday, April 8, 2025, in Washington (AP Photo/Evan Vucci).
The Trump administration on Tuesday won dismissal of criminal charges against a man previously accused of being a top MS-13 leader — with a catch. The judge in the case stayed his own order until Friday morning and forbid federal authorities from transferring him to the “jurisdiction” of the Department of Homeland Security until then.
That roughly 3-day pause will give counsel for Henrry Villatoro Santos, 24, the opportunity to either appeal the ruling or initiate a separate legal proceeding keyed toward blocking, or stalling, the government’s all but telegraphed plans for his quick “removal and deportation.”
On March 27, Villatoro Santos was charged with one count of possession of a firearm by an undocumented immigrant.
While the charging document and affidavit filed in his case were threadbare and conclusory, respectively, as to his alleged connections to MS-13, a press conference helmed by U.S. Attorney General Pam Bondi on the day of his arrest — and attended by FBI Director Kash Patel, Virginia Gov. Glenn Youngkin, and the U.S. Attorney for the Eastern District of Virginia Erik Siebert — repeatedly contained accusations that Villatoro Santos was among the highest ranks of the infamous transnational criminal gang.
In public comments, Trump administration officials — including comments from President Donald Trump himself — repeatedly made hay of the defendant’s alleged MS-13 stature, with the president calling him a “major leader” of the transnational gang.
In court filings, the government offered a lone sentence making such claims.
“FBI agents and TFOs also observed indicia of MS-13 association in the garage bedroom,” federal authorities alleged in the affidavit.
Earlier this month, the government moved to drop the gun charges — the day after the federal public defender’s office withdrew from the case and Villatoro Santos obtained private counsel.
On April 10, defense attorney Muhammad Elsayed excoriated the development in a motion to delay entry of dismissal which argued the DOJ was dropping the firearm possession case in lieu of summary removal under immigration law — where fewer constitutional rights are afforded to defendants.
Since then, both sides have noted the “unusual” nature of the case.
“The undersigned is keenly aware of the unusual nature of this motion,” the defense motion reads. “But these are unusual times.”
The government’s response in opposition rubbishes the defense motion for allegedly being light on legal argumentation.
“Villatoro marshals no meaningful authority in support of his concededly ‘unusual’ request,” the DOJ motion reads. “That is unsurprising, for no legal basis backs his bid for delay.”
On Monday, motions practice continued.
In a defense reply, Villatoro Santos’ attorney reprised arguments that his client was likely to suffer a fate similar to Kilmar Armando Abrego Garcia, a 29-year-old father with protected status who was, in defiance of two court orders, illegally shipped off to a notorious prison in El Salvador, the Centro de Confinamiento de Terrorismo (CECOT).
“Here, the Government has made clear through public pronouncements its intent to hand over Mr. Villatoro Santos to the Salvadoran authorities so that he can be imprisoned there through a process in which there are no due process requirements to observe, no constitutional rights to protect, and no judicial oversight,” the motion reads. “This is precisely the type of evil against which the ‘leave of court’ clause in Rule 48(a) seeks to protect.”
In the present case, the government used a so-called “Rule 48 Motion” to force dismissal. Under this federal Rule of Criminal Procedure, which governs case dismissals, a court has limited discretion whether or not to grant a dismissal initiated by the government.
There is, however, some discretion; the government must receive “leave of court” which, under long-standing precedent, provides the judge with “a discretion broad enough to protect the public interest in the fair administration of criminal justice.”
In the Villatoro Santos case, the defense argued the government was being cagey about what, exactly, its deportation plans were.
From the latest defense filing, at length:
One [sic] the one hand, if the Government intends to follow the law in its pursuit of Mr. Villatoro Santos’s removal — that is to serve him with a Notice to Appear (which it has not done to date), provide him with a Section 240 hearing, ensure his right to counsel is not infringed, and allow him the ability to contest his removability in immigration proceedings — then the Government’s motion to dismiss is not made in bad faith and is not clearly contrary to manifest public interest. On the other hand, if, as its public statements and its conduct to date strongly suggest, the Government intends to summarily deport Mr. Villatoro Santos by whisking him onto a plane to El Salvador without notice and a right to be heard in immigration proceedings, then the dismissal of the instant case at this time would clearly be done in bad faith and would be manifestly contrary to public interest. It does not serve the public interest, nor is it an act of good faith, for the Government to rush to deprive this Court of jurisdiction over Mr. Villatoro Santos if its aim is to thereafter deprive him of his well-established constitutional right to due process of law.
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In no uncertain terms, the defense went on to say the Trump administration “has disregarded” Fifth Amendment Due Process protections for numerous immigrants “in the context of removal proceedings.”
“The Government has disregarded this well-established principle and defied court orders in the process in other cases, effectively carrying out forcible disappearances to the black hole that is CECOT,” the filing went on. “Its public statements in this case strongly indicate it may intend to do so again with Mr. Villatoro Santos. And the Government’s response memorandum does nothing to mitigate the very real concern that it plans to once again disregard the law in pursuit of favorable headlines. If the undersigned is simply wrong about all of this, then the Government should have no qualms about providing the necessary information to this Court regarding the steps it intends to take in pursuit of removal upon the dismissal of this case.”
The government, for their part, seemingly conceded that their plans for Villatoro Santos do, in fact, include deportation.
“It is well within the prerogative of the United States to seek the removal of aliens who are illegally or unlawfully in this country in lieu of prosecuting them, regardless of whether charges have been filed,” one footnote reads in the government’s motion filed last week.
Another footnote hammered home the point:
While defendants are not entitled to tread water on the criminal docket while they explore potential avenues to thwart removal proceedings in immigration court, it is worth noting that Villatoro has already obtained nearly half the 14-day pause he seeks insofar as the motion to dismiss will remain unresolved pending the hearing scheduled for April 15.
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During that hearing, the government clearly convinced the judge to grant the “leave of court” required for a voluntary dismissal, a minute entry on the docket for Villatoro Santos suggests.
But, the defense was given a salve as well and now has some 72 hours to at least begin the process of convincing another judge — or judges — that summary removal to El Salvador is improper.
“Gov’t Motion to Dismiss – Argued & GRANTED,” the terse order reads. “Ordered that the entry of the Order is STAYED until 4/18/2025 @ 10:00am. Deft will not be transferred to the jurisdiction of DHS before 4/18/2025 @ 10:00am. Order to follow.”
