El Salvador President Agrees to Accept U.S. Citizens as Prisoners

A look at the unprecedented agreement between Secretary of State Rubio and El Salvador President Nayib Bukele to accept deportees and U.S. citizens as prisoners.

This is part one of an ongoing series looking at the prison detention agreement between the United States and El Salvador. Future articles will take a deeper look into the prison, the decrease of crime in El Salvador since the new President was elected, and the concerns about civil liberties violations in the Central American nation.

Secretary Marco Rubio has a meet and greet with Embassy San Salvador in San Salvador, El Salvador, February 3, 2025. (Official State Department photo by Freddie Everett)

On February 3, 2025, United States Secretary of State, Marco Rubio met with El Salvador President Nayib Bukele where an agreement was made for the Central American country to accept prisoners from the United States including U.S. Citizens.

From NPR:

President Nayib Bukele "has agreed to the most unprecedented, extraordinary, extraordinary migratory agreement anywhere in the world," Rubio said at a signing ceremony for an unrelated civil nuclear agreement with El Salvador's foreign minister.

"He's also offered to do the same for dangerous criminals currently in custody and serving their sentence in the United States even though they're U.S. citizens or legal residents," Rubio said.

On March 15, Trump invoked the wartime Alien Enemies Act of 1798 authorizing rapid deportations.

50 U.S. Code § 21 - Restraint, regulation, and removal

Whenever there is a declared war between the United States and any foreign nation or government, or any invasion or predatory incursion is perpetrated, attempted, or threatened against the territory of the United States by any foreign nation or government, and the President makes public proclamation of the event, all natives, citizens, denizens, or subjects of the hostile nation or government, being of the age of fourteen years and upward, who shall be within the United States and not actually naturalized, shall be liable to be apprehended, restrained, secured, and removed as alien enemies. The President is authorized, in any such event, by his proclamation thereof, or other public act, to direct the conduct to be observed, on the part of the United States, toward the aliens who become so liable; the manner and degree of the restraint to which they shall be subject and in what cases, and upon what security their residence shall be permitted, and to provide for the removal of those who, not being permitted to reside within the United States, refuse or neglect to depart therefrom; and to establish any other regulations which are found necessary in the premises and for the public safety.

On March 16, a federal judge issued a temporary restraining order to halt the deportations.

On March 16-17, 261 deportees, mostly from Venezuela, were flown from the United States to El Salvador. Once they are no longer in the United States, they no longer have legal protections through our court system meaning there is a potential for innocent people and even citizens be detained and deported without due process.

While the government’s claims are that those deported were gang members, reports are coming in that some of the people detained and deported may not have been gang members.

From USA Today:

There's little evidence to support the administration's contention that large numbers of the deportees are members of the violent Venezuelan prison gang Tren de Aragua. Reporting by USA TODAY last fall found ICE, the FBI and law enforcement agencies in states with reports of the gang's activity had tallied fewer than 135 members of the gang, while the Trump administration says it deported more than 200 members to El Salvador last week alone.

El Salvador’s President Nayib Bukele and the White House mocked the judge who attempted to block the deportation.

From The Guardian:

The White House said the judge had no authority to block the deportation.

“A single judge in a single city cannot direct the movements of an aircraft ... full of foreign alien terrorists who were physically expelled from US soil,” White House press secretary Karoline Leavitt said in a statement.

She said the court had “no lawful basis”.

The US district judge James Boasberg had attempted to halt the deportations for all individuals deemed eligible for removal under Trump’s proclamation, which was issued on Friday. Boasberg also ordered deportation flights already in the air to return to the US.

“Oopsie … Too late,” Bukele posted online, followed by a laughing emoji.

An interesting fact, the Biden administration also fought lower courts from issuing “nationwide injunctions”.

From Vox:

The question of whether a single federal trial judge should have the power to halt a federal law or policy throughout the entire country is hotly contested. As Justice Neil Gorsuch wrote in a 2020 opinion arguing against nationwide injunctions, “there are currently more than 1,000 active and senior district court judges, sitting across 94 judicial districts, and subject to review in 12 regional courts of appeal.” If nationwide injunctions are allowed, any one of these district judges could potentially halt any federal law, even if every other judge in the country disagrees with them.

As to the Alien Enemies Act itself, obviously, the United States is not in a declared war. The Brennan Center gives us a big more information on historically peace time use of the Alien Enemies Act:

Although the Alien Enemies Act has only been invoked in major conflicts, Presidents Woodrow Wilson and Harry S. Truman continued using the law after the cessation of hostilities in World Wars I and II. World War I ended in 1918, but the Wilson administration used the law to intern German and Austro-Hungarian immigrants until 1920. And World War II ended in 1945, but the Truman administration used the law for internment and deportations until 1951. In its 1948 Ludecke v. Watkins opinion, a narrow majority of the Supreme Court upheld the Truman administration’s extended reliance on the Alien Enemies Act, reasoning that it was not the judiciary’s place to second-guess the president on a matter as “political” as when a war terminates and wartime authorities expire.

This is going to be an interesting Constitutional battle. Obviously, if the United States were to outsource imprisoning American citizens in El Salvador, they would have access to the United States courts. Non-citizens will be at the mercy of the El Salvador legal system.

Can Trump deport American Citizens to El Salvador?

He is certainly hinting that he wants to take President Bukele up on the offer.

From Politico:

It would be a clear violation of the Eighth Amendment of the Constitution, according to Lauren-Brooke Eisen, the senior director of the justice program at the Brennan Center for Justice. The Constitution prohibits “cruel and unusual punishments” to protect criminals from serving excessive sentences or being subjected to inhumane prison conditions.

“It’s also critical to know that this move would be illegal under the First Step Act, as the law requires the federal government to make sure those convicted of federal crimes are sent to ‘a facility as close as practicable to the prisoner’s primary residence, and to the extent practicable, in a facility within 500 driving miles of that residence,’” Eisen told POLITICO in a statement.

In the next article in this series on El Salvador, I will be looking at the El Salvador criminal justice system and the prison conditions these deportees were sent to and potential U.S. citizens may be sent to in the future.