What happens to the Venezuelans sent to a Salvadoran mega-prison now?

What happens to the Venezuelans sent to El Salvador now? In March, President Donald Trump invoked the wartime Alien Enemies Act—last used during World War II—to detain and remove alleged members of the gang Tren de Aragua without due process. The administration sent 238 men to a mega-prison in El Salvador as part of a multimillion-dollar deal with El Salvador’s President Nayib Bukele. The move was in defiance of a court order blocking the deportations and instructing planes to be turned around.

As we reported, the evidence to support the accusations against many of these men was flimsy. Mother Jones spoke with relatives, friends, and lawyers of 10 Venezuelans sent to El Salvador, who say their loved ones have been unjustly targeted simply because of benign tattoos (like one of an autism awareness ribbon). More details about cases have since emerged and mistakes have become apparent. Last week, the Trump administration acknowledged that it had wrongfully deported Kilmar Abrego Garcia, a Maryland father who had been granted protection from deportation by a US immigration judge, due to “an administrative error.”

But even in light of the many problems with these removals, it is not clear what will happen to those sent to El Salvador. Lawyers for the federal government have said in legal filings that the courts lack jurisdiction to bring men like Abrego Garcia back to the United States.

“The claim that they can’t bring somebody back doesn’t make any sense to me,” says Deborah Fleischaker, a former career official who spent 14 years at the Department of Homeland Security, including investigating complaints with the Office for Civil Rights and Civil Liberties, and a political appointee during the Biden administration, serving as acting chief of staff and assistant director for policy at US Immigration and Customs Enforcement.

Mother Jones spoke with Fleischaker about why the Trump administration should be able to bring back Venezuelans from El Salvador and the flawed criteria ICE used to identify alleged Tren de Aragua gang members.

This conversation has been lightly edited for length and clarity.

There have been several reports, including from Mother Jones, showing that many of the men sent to El Salvador without due process appear to have been targeted because of their tattoos and despite the fact they had no known criminal history. What has caught your attention about all this?

There’s a lot that’s caught my attention. The surprise invocation of the Alien Enemies Act, which has only been used three times previously in times of actual war. The seeming willingness to violate a court order to turn these folks around, which is really troubling and portends real constitutional challenges down the line, potentially. Then there is the lack of due process and ability for folks to challenge being placed under the Alien Enemies Act and considered to be members of Tren de Aragua. The fact that we are removing people—not just to be removed, but to be jailed indefinitely without charge—is also really problematic. 

There’s both the piece of using the Alien Enemies Act to move them to a notoriously brutal prison in El Salvador, then there’s the actual factual questions about whether—even if one would argue the use of the Alien Enemies Act is appropriate, which I don’t think it is—whether they are actually getting the people who they say are supposed to be eligible for [removal].

In several cases, the Venezuelans hadn’t actually been ordered deported by an immigration judge. How unusual is it for ICE to remove people who don’t have a final order of removal?

As far as I understand, it’s unprecedented. Title 42, for example, allowed the US government to expel people during the Covid-19 pandemic. But that order was a little bit different and it was CBP [Customs and Border Protection] doing the expulsions, not ICE. I’m aware of no corollary for ICE to be removing people without final orders of removal, that is, who are not considered to be removable under any normal immigration process. 

There’s usually two ways you can go through the immigration process. There’s what are called 240 proceedings, which is the standard way that one goes before an immigration judge who hears your claims and the government’s and makes the decision. Or you could go through expedited removal, where if you don’t claim a fear of return, you could get a final removal order very quickly. Those are all under the legal process that’s been set out for immigration proceedings and provide for some due process protections for the people going through those proceedings. The Alien Enemies Act doesn’t.

An ICE official said in court filings that the men were vetted through a rigorous process and the agency didn’t just rely on tattoos or social media posts. What is your sense of how ICE picked these men and determined them to be members of Tren de Aragua?

There’s been reporting now on the checklist they’re using to identify people they believe are Tren de Aragua gang members. The checklist appears to be quite flimsy on its face. It doesn’t appear to be designed to do a careful vetting. It appears to be designed to make sure that they have a steady stream of people that they could claim are Tren de Aragua members and therefore eligible for [removal under] the Alien Enemies Act. That’s not what factual determination of specific gang members is supposed to be. It’s not supposed to be a pathway in search of an end.

Mistakes and errors are always a risk in any bureaucratic system. That’s always a possibility. But the risk is so enormous under the way they’ve set this up. I cannot see how it’s worth it, even if you thought it was legal.

The Trump administration recently admitted to knowingly having deported someone who had received protection from deportation from an immigration judge based on fear of persecution by gangs in El Salvador. The government has said there’s nothing it can do about it. What do you make of that assertion? 

As a really fundamental matter, the United States is paying the El Salvador government to detain these people. That to me indicates that there’s some sort of contractual relationship between the US [government] and El Salvador. If they are detaining these people on our behalf, we should be able to ask for them back. It really is not a matter of El Salvador being able to do whatever it wants when it’s doing something on our behalf. I’m not understanding the claim that they can’t get these folks back.

There’s some sort of memorandum of agreement in place between El Salvador and the United States. Either there are terms for the return of individuals or the United States really dropped the ball in negotiating this agreement, because it’s totally foreseeable that they might want somebody back at some point.

What process does ICE have in place to locate and bring back people who were wrongfully deported?

Most of the time, you know that someone is wrongfully deported because they are probably represented and they have somebody who points out that, for example, they had legal protections and they shouldn’t have been removed. Most people aren’t being removed to prison in a foreign country, so it’s not usually difficult to bring them back. You put them on a plane and you bring them back. It’s not challenging. But I would also say that it doesn’t seem like it should be challenging here. The administration just brought another planeload of people to El Salvador. That plane returned to the United States. I am not clear why they could not request that certain people be released back into US custody and brought back to the United States at that point.

In many of the cases we’ve looked at, the men sent to El Salvador had upcoming court hearings in US immigration courts. What happens when they don’t appear in court?

I honestly don’t know. I think that’s a question for ICE or the [Justice Department]. I assume they’ll be [ruled] in absentia because they’ve been spirited away to a prison in El Salvador and they can’t make their court hearings. Those sorts of cases could be reopened upon request, but we don’t know what’s going to happen to them. 

In a functioning immigration system, there is a role for enforcement, detention, and removal. Those things don’t have to be in conflict with human and civil rights. Unfortunately, we now appear to be in an administration that has put them directly in conflict, and that’s not good for the health of the immigration system. That’s not good for the country.