US deportations to El Salvador test legal limits

Ever since Donald Trump took office in January, migrants entering the United States have increasingly feared the threat of deportation. Now this threat has taken on a new dimension: The possibility of ending up in a high-security prison in El Salvador.

Since March, Trump's government has deported a total of 271 Salvadoran and Venezuelan migrants from the US to the CECOT mega-prison in El Salvador. Washington claims that the deportees belong to criminal organizations, but has provided no evidence.

Instead, relatives and human rights organizations warn that innocent people with no criminal record are among those who have been deported. The most symbolic case is that of the Salvadoran Kilmar Abrego Garcia, who Washington has acknowledged was deported because of a "procedural error".

US media reported that Abrego Garcia entered the country illegally in 2011 as a teenager fleeing gang violence. Although his asylum application was rejected in 2019, he was granted a work permit and protection from deportation due to the threat of persecution. Nevertheless, the 29-year-old father of three was arrested in mid-March and deported shortly afterwards.

Washington now claims that Abrego Garcia is a member of the notorious MS-13 gang. His lawyers deny this.

Both Trump and Salvadoran President Nayib Bukele have refused to return Abrego Garcia to the US. Trump has also ignored a corresponding order from the US Supreme Court.

Instead, the US president is publicly toying with the idea of having US citizens imprisoned in CECOT.

CECOT, which translates as "Centre for the Containment of Terrorism," is the largest high-security prison in Latin America. It opened in January 2023 and has space for 40,000 inmates.

No information about deportees

Ana Maria Mendez Dardon, director for Central America at the Washington Office on Latin America says that the identity and whereabouts of those deported from the US since March are currently unknown. It is therefore unclear whether they are actually being held in CECOT or in another Salvadoran prison.

"Without knowing their identity, it is difficult to verify whether they really have a criminal record. That's why eight US congressmen sent a letter to Secretary of State Rubio in the midst of this serious human rights crisis, asking him to inform Congress about the details of the agreement" between the US and El Salvador, Dardon told DW.

No details on deportation agreement

"The agreement has not been made public, which is a serious violation of the principles of transparency and accountability," Irene Cuellar, researcher on Central America for Amnesty International, told DW. "However, press reports indicate that the US is transferring $6 million to the Salvadoran government for one year for the detention of these people."

She described what she called an "enforced disappearance" of the deportees because they have been granted neither contact with their families nor access to legal counsel.

In her opinion, the pact "opens the door to normalising institutional violence as an instrument of migration management and foreign policy." Furthermore, "it directly attacks the fundamental pillars of any democracy: The presumption of innocence, due process and the absolute prohibition of arbitrary detention."

'Illegal and unprecedented'

Deporting people from the US to then hold them in a Central American prison "is completely illegal and unprecedented," said Salvadoran lawyer Leonor Arteaga Rubio, program director at the Due Process of Law Foundation.

"In a democracy, the court should order the immediate release of these people. But in El Salvador there is no independence of powers. The court does what Bukele wants," she said, adding that "no democracy should support such a model, let alone emulate it."

Still, Arteaga Rubio predicts that the agreement will hold. Both Trump and Bukele want to send the message "that anyone who is considered an enemy of Trump can be sent to Bukele's prison, which functions like a black hole, a new Guantanamo from which there is no way out," she said. In El Salvador, no judge could put a stop to this, she added. "The law in this prison is Bukele's, with Trump's full support."

Trump against the courts?

It remains uncertain how the legal tug-of-war over Kilmar Abrego Garcia will end. The Trump administration has refused to take steps to repatriate the Salvadoran and continues to accuse the 29-year-old of being a criminal gang member without providing any evidence.

"Why is the government of El Salvador continuing to imprison a man where they have no evidence that he's committed any crime and they have not been provided any evidence from the United States that he has committed any crime?" Democratic senator Chris Van Hollen, who is from Abrego Garcia's home state of Maryland, asked reporters after a meeting with the prisoner in El Salvador.

With US media casting doubt on the alleged criminal past of other migrants who have been deported to CECOT, Van Hollen accused the Trump administration of lying, and criticized their disregard of judicial orders.

'Legal limbo'

There is a risk that neither Salvadoran nor US courts will decide the fate of the deportees, which could depend instead on the "political will" of the authorities involved, said Roberto Lopez Salazar, coordinator of the Observatory of Human Rights at the Jose Simeon Canas Central American University in El Salvador. Lopez Salazar believes that international pressure is needed to ensure that the case does not remain in a state of legal limbo or end in impunity.

Irene Cuellar took her concerns a step further, "As long as there are no real political or legal consequences, there is a growing risk that this model of migration control policy will be exported to other countries."

Disclaimer: This article first appeared on DW, and is published by special syndication arrangement.