The former U.S. President, Donald Trump, repeatedly indicated his desire to penalize U.S. citizens guilty of serious offenses by imprisoning them in El Salvador. Trump’s administration, well-known for deporting immigrants, particularly to the infamous CECOT mega-prison in El Salvador, found the idea appealing owing to the institution’s stringent conditions. Trump maintained that this proposed strategy would only apply to ‘violent people,’ insinuating those already found guilty within the United States. However, such a move might contravene the U.S. Constitution, which disallows unilateral relocation of its native-born citizens to foreign jails.
Let’s delve into the concept of imprisoning U.S. citizens in a foreign nation, explore its legal possibilities, and identify any potential legal circumventions associated with it. The basic difference lies in the status of the individuals involved: American citizens hold rights that immigrants do not. The right to stay in the U.S. is inherent to citizenship, hence its citizens cannot be forcefully dispatched to another nation.
Deportation is governed by immigration law, which categorically excludes U.S. citizens. Being a citizen automatically entails this right of domicile. Conversely, immigrants, bereft of these rights, can be banished, a policy visibly practiced in El Salvador.
El Salvador currently accommodates two categories of immigrants – the native-born and those from Venezuela. Under the Trump administration, individuals have been dispatched not only to El Salvador but Costa Rica, Panama, and more, regardless of their citizenship status in those locations. However, international accords disallow the deportation of individuals to nations where they may suffer persecution or torture.
Donald Trump’s administration seemed particularly keen on the option of El Salvador due to nuances in its criminal justice system. According to the same administration, once deportees are dispatched to El Salvador, U.S. judges lose any jurisdiction over them. In other words, the power to free such individuals or to insist on their return to the U.S. is nullified. This, they argue, could serve as a legal loophole to exploit.
Under the administration’s perspective, the population that could be subject to such a measure isn’t just noncitizens but could also include citizens of the United States. This could lead to citizens being suddenly grabbed from their daily lives, forced onto aircraft, and ending up incarcerated in overseas jails with no legal recourse available.
However, a specific incident brings to light the risky nature of this approach. The Trump administration openly acknowledges mistakenly deporting Kilmar Abrego Garcia, a Maryland resident, to El Salvador. Garcia, who hadn’t been formally accused of any wrongdoing and who had a standing order protecting him from deportation, was nonetheless sent to CECOT.
Despite the Supreme Court’s directive to the administration to ‘facilitate’ Garcia’s return, this error has fueled unease about the possibility of such occurrences. Contemplating the idea of relegating U.S. citizens to foreign lands like El Salvador is an unprecedented consideration in U.S. history and, on surface level, unlikely.
Other than the constitutional prevention of deporting U.S. citizens, there exist other legal barricades. The U.S. maintains extradition treaties with various nations which dictate the process of dealing with accused individuals. However, the constitutional prohibition against ‘cruel and unusual punishment’ could be violated by dispatching citizens to draconian prisons abroad, thereby potentially infringing upon their rights.
A further possible loophole could be utilized by the administration to deport a minority of citizens to El Salvador: Revoking the citizenship of individuals who had gained it post-immigration to the United States. In doing so, these individuals would revert back to green card status, making them susceptible to deportation if they were later convicted of serious offenses.
But such a move necessitates citizenship revocation to begin with. In essence, although it is apparently impracticable to force a citizen out of the country, a small minority could unknowingly find themselves in a precarious legal situation. Regardless, the power to involuntarily expel a citizen from their home nation seems unlikely in a legal context.