Trump's deportations may face challenge as prison punishment without a trial

WASHINGTON — President Donald Trump has pressed for quickly deporting hundreds of Venezuelan and Salvadoran men who are said to belong to a foreign crime gang.

Those deportations have been challenged as illegal — and last week, blocked by the Supreme Court — if the detained men are not given a hearing to argue they are not gang members.

But Trump's deportations are unusual and may face a legal challenge for a different reason. Most of the deported men will not be sent back to their home country but instead to a maximum security prison in El Salvador where they can be held indefinitely.

Sending someone to prison "constitutes punishment," says UCLA law professor Ahilan Arulanantham. Before imprisoning people, including noncitizens, the government is required under the Constitution to charge the defendants with a crime and to prove their guilt in a jury trial, he said.

The unusual mix of civil deportation and criminal-style punishment has received relatively little attention, he said.

Last week, however, he filed an appeal on behalf of a Venezuelan man held in Texas, arguing that it would be unconstitutional for the government to send his client to a brutal prison.

"There should be no serious dispute that sending someone to the Terrorism Confinement Center, or CECOT, constitutes punishment," he said in the case of Matos vs. Venegas. "CECOT is not a civil detention center, but instead a maximum security prison in El Salvador. The inhumane conditions there have been well-documented. Detainees share communal cells that can hold up to 100 men where they spend 23.5 hours per day; the cells contain no furniture beyond rows of stacked metal bunks without mattresses or pillows; the lights are always on; and detainees have no access to visits or phone calls with lawyers, family, or community. Indeed, the conditions are so harsh that El Salvador's own justice minister has said the only way out is in a coffin."

In defense of its deportations, Trump administration lawyers have pointed to the Alien Enemies Act of 1798 and said it gave the president wartime powers to quickly deport foreigners.

But administration officials also described the prison as imposing punishment on criminals. Secretary of State Marco Rubio said El Salvador had agreed to "accept for deportation any illegal alien in the United States who is a criminal from any nationality."

Salvadoran President Nayib Bukele sounded the same theme, saying "we are willing to take in only convicted criminals (including convicted U.S. citizens) into our mega-prison in exchange for a fee."

Lawyers and family members say many of the deported Venezuelan men had no criminal records but were taken into custody because of their tattoos. They are now in a foreign prison with no rights to appeal or plead their innocence.

Kilmar Abrego Garcia fled El Salvador as a teenager and has lived for 15 years in Maryland, where he has no criminal record. Administration officials allege he was a member of MS-13, a Salvadoran crime gang, which he denies.

Although being a member of foreign crime gang can be grounds for deportation, it is not a crime in itself that would authorize sending Abrego Garcia to state or federal prison in the United States. But because of an "administrative error" by Trump officials, he remains in prison in El Salvador.

In the past, the Supreme Court has made clear that during wartime the government can detain indefinitely people who were picked up on the battlefield. The George W. Bush administration relied on this authority to hold detainees at a U.S. military base at Guantanamo Bay, Cuba.

County jails also may hold persons who have been charged with a crime while they await a trial. But it is generally understood people cannot be punished and sent to a prison unless they have been convicted of a crime.

Writing in Lawfare this week, Benjamin Wittes also questioned the legal basis for the reliance on the Salvadoran prison.

"What law lets the Trump administration store Venezuelans in Salvadoran prisons?" asked Wittes, who is editor in chief of the Lawfare site. "By what authority can the U.S. government pay a foreign government to lock up for the long term people who were detained in the United States on the basis of no allegation of criminal misconduct?"

He said it is "only a matter of time before the courts confront the question of what being on one of those flights really means. ... I would hope there are not five justices who will vote for the proposition that the United States government can knowingly and intentionally deport a person to face such lawless imprisonment."

Arulanantham, co-director of the Center for Immigration Law and Policy at the UCLA Law School, said the judge may decide the Matos case without ruling on the constitutional challenge to sending deported men to a foreign prison. But he wrote about the case Tuesday on the Just Security site to draw attention to the significant constitutional issue.

"The three men I have represented in habeas litigation were all scared to return to Venezuela," he wrote, "but they were absolutely terrified of being sent to CECOT. They firmly believed, for good reasons, that there would be no coming back from that place."