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Can Trump Legally Deport US Citizens To El Salvador Prisons?

Proposal to deport criminals who are US citizens could test the limits of the US Constitution, experts say. El Salvador’s Bukele says will not return wrongly deported migrant to US After deporting 238 alleged Venezuelan gang members and 23 members of a Salvadoran gang to a maximum-security El Salvador prison last month, US President Donald Trump is now contemplating deporting criminals who are United States citizens there as well, he told reporters on Monday. But Trump’s latest plan will probably face multiple legal challenges. Forcibly sending American passport holders outside the country is likely illegal, experts say, and Trump himself signed a bill during his first term that could make such deportations even more difficult. So what is Trump’s plan, what are the legal challenges and can it ever be legal to deport a US citizen from the US? Last month, Trump deported 238 members of the Venezuelan gang, Tren de Aragua, as well as 23 members of the Salvadoran gang MS-13 to El Salvador. These men are now being held in the Centre for the Confinement of Terrorism (Centro de Confinamiento del Terrorismo) or CECOT, a 40,000-capacity, maximum-security prison in El Salvador. To facilitate this, the Trump administration struck a deal under which the US government will pay El Salvador about $6m to detain alleged Tren de Aragua members for a year. Trump also invoked a wartime “zombie” law from 1798, the Alien Enemies Act, to enable the deportations. This law permits US presidents to detain or deport noncitizens during wartime. Prior to Trump’s use of it, the Alien Enemies Act has only been invoked three times: during the War of 1812, World War I and World War II. Trump’s use of the law is controversial, as critics argue that the US is not currently under any threat of “invasion” as a result of being at war. An explainer article from the Brennan Center for Justice argued in 2024 that invoking the act “in peacetime to bypass conventional immigration law would be a staggering abuse” and such an attempt should be struck down by the courts. Another point of controversy is that, as well as the alleged gang members, Trump also deported Kilmar Armando Abrego Garcia, a 29-year-old Salvadoran citizen who has lived in Maryland for 14 years and is married to a US citizen. In 2019, Abrego Garcia was arrested by US Immigration and Customs Enforcement in Maryland after an informant told the police that Abrego Garcia was an MS-13 terrorist. Abrego Garcia’s lawyers have denied this allegation, citing a lack of any proof that Abrego Garcia is affiliated with the MS-13. Later in 2019, an immigration judge granted Abrego Garcia an immigration protection called “withholding of removal”, which shielded him from being returned to El Salvador and allowed him to remain in the US. The government has described his deportation as an “administrative error”, but still claims that Abrego Garcia has ties to MS-13. El Salvador’s President Nayib Bukele said he would not return Abrego Garcia, who is now being held in CECOT, to the US. “The question is preposterous. How can I smuggle a terrorist into the United States?” Bukele told reporters on Monday. In an unsigned order on Thursday, however, the US Supreme Court unanimously ruled in a 9-0 decision that Trump should facilitate Abrego Garcia’s return to the US. The court currently comprises a conservative majority of 6-3. Trump hosted El Salvador’s President Bukele at the White House for bilateral talks on Monday, during which they discussed the recent deportations as well as plans for more – this time of US citizens. Trump told Bukele during the meeting: “I said homegrowns are next, the homegrowns. You gotta build about five more places.” By “homegrowns”, Trump was referring to criminals who hold US citizenship. The US president told reporters on Monday after that meeting that he hopes to deport US citizens who are criminals to El Salvador. Bukele said that he would be open to housing US prisoners as well. Trump acknowledged, however, that he would only be able to proceed with this plan if it is shown to be legal, and that he would only deport citizens who are “violent criminals”. “We always have to obey the laws, but we also have homegrown criminals that push people into subways, that hit elderly ladies on the back of the head with a baseball bat when they’re not looking, that are absolute monsters,” said Trump. “I’d like to include them in the group of people to get them out of the country, but you’ll have to be looking at the laws on that.” During a media briefing on Tuesday, White House Press Secretary Karoline Leavitt told reporters that Trump “would only consider this [sending US citizens to El Salvador], if legal, for Americans who are the most violent, egregious, repeat offenders of crime who nobody in this room wants living in their communities”. She did not provide additional comments about the legal considerations the administration would make. When Fox News host Jesse Watters asked Attorney General, Pam Bondi on Tuesday if the plan to deport US citizens was legal, she said only: “These are Americans who he is saying have committed the most heinous crimes in our country, and crime is going to decrease dramatically because he has given us a directive to make America safe again. “These people need to be locked up as long as they can, as long as the law allows. We’re not going to let them go anywhere, and if we have to build more prisons in our country, we will do it.” However, immigration law experts say the plan would not be legal. “No, he [Trump] can’t send US citizens to El Salvador,” human rights lawyer Clive Stafford Smith told Al Jazeera. Bruce Fein, an American lawyer specialising in constitutional and international law, told Al Jazeera: “It would be unconstitutional to remove US citizens to a foreign country for imprisonment.” There are a series of legal challenges which could make Trump’s latest idea unfeasible, including: One legal loophole that the Trump administration could exploit is that, in rare cases, people who are not born in the US but are naturalised can lose their citizenship. A foreign-born resident of a country can obtain citizenship by naturalisation after spending a certain amount of time in the country and typically proving that they have assimilated into US culture. To become a naturalised US citizen, you must be over the age of 18 and have lived continuously in the US as a green card holder for five years, or three years if you are married to a US citizen. Naturalised citizens can lose their citizenship or become denaturalised if they commit certain crimes, including terrorism, war crimes, human rights violations, sex crimes or fraud. Denaturalisation can also happen to someone who commits an act of treason against the US, or someone who runs for public office or joins the military of a foreign country. Fein told Al Jazeera that if a US citizen is imprisoned in a foreign country, scenarios similar to the Abrego Garcia case could play out. “Trump could secretly violate the constitution and then claim he was powerless to return the US citizen to the United States, similar to Abrego Garcia,” he said. “The foreign imprisonment would be immediately challenged in court and create another collision between Article 2 and Article 3 as we see unfolding with Abrego Garcia,” said Fein. Article 2 of the US constitution grants the US president executive power while Article 3 places the judicial power in the Supreme Court. In the Abrego Garcia case, the Supreme Court has decided that Abrego Garcia should be returned to the US, while the Trump administration does not plan to bring him back. “The constitution is under stress as never before since the Civil War,” Fein said. “The problem is how a US court may enforce an order that it is illegal. The courts are always dependent on the good faith of the relevant governments, and in a time of right-wing populism, good faith is sometimes lacking,” said Smith. Follow Al Jazeera English:...

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