Trump's Deportation Policies May Hit Legal Roadblock: No Trial, Just Prison Punishment?

President Trump has pushed for rapid deportation of numerous Venezuelan and Salvadoran men who are alleged to be members of an international criminal organization.

Those deportations have been challenged as illegal — and last week, prohibited by the Supreme Court —if the incarcerated individuals do not receive an opportunity to contest their classification as gang members.

However, Trump's deportations stand out and could encounter a distinct legal hurdle. Many of these individuals won’t return to their original homeland; instead, they might end up in an extremely high-security facility in El Salvador, potentially remaining incarcerated without time limit.

According to UCLA law professor, sending someone to prison "is considered punishment." Ahilan Arulanantham. He stated that before incarcerating individuals, such as those who are not citizens, the government must charges them with a crime according to the Constitution, and then demonstrate their guilt during a trial involving a jury.

He mentioned that this atypical combination of civil deportation procedures with criminal-like penalties hasn't garnered much notice.

Last week, though, he submitted an appeal on someone's behalf. Man from Venezuela detained in Texas , contending that it would violate constitutional rights for the government to transfer his client to a harsh 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 left El Salvador during his teenage years and has resided in Maryland for 15 years without any criminal history. Government authorities claim he was part of MS-13, an infamous Salvadoran gang, but he refutes these allegations.

Even though belonging to a foreign criminal organization can lead to deportation, it isn’t by itself a reason to send Abrego Garcia to state or federal prison in the U.S. However, due to what was termed as an “administrative mistake” under the Trump administration, he continues to be held behind bars in El Salvador.

Previously, the Supreme Court established that during times of war, the government has the power to indefinitely imprison individuals captured on the battleground. The George W. Bush administration used this justification for holding detainees at a U.S. naval station located in Guantanamo Bay, Cuba.

County jails might also detain individuals who have been accused of a crime while awaiting their trials. However, it is commonly accepted that people cannot face punishment or be transferred to prisons unless they have been found guilty of a crime.

In Lawfare earlier this week Benjamin Wittes similarly challenged the legal foundation for depending on the El Salvadoran prison.

Wittes, who serves as the editor-in-chief of the Lawfare website, questioned which law allowed the Trump administration to keep Venezuelans incarcerated in El Salvadorian jails. He also pondered under what jurisdiction the U.S. government could compensate another nation to indefinitely detain individuals apprehended within the United States without any accusations of criminal activity.

He stated that it is merely a question of when the courts will address what it truly signifies to be on one of those journeys. "... I sincerely hope there aren’t five justices willing to support the idea that the U.S. government has the authority to deliberately expel someone to endure unlawful detention."

Arulanantham, who is the co-director of the Center for Immigration Law and Policy at the UCLA Law School, mentioned that the judge might rule on the Matos case without addressing the constitutional issue related to deporting individuals to a foreign prison. However, he discussed the matter on Tuesday in his writings. Just Security website aimed at highlighting a crucial constitutional matter.

"The three individuals I've taken on in habeas proceedings were all fearful of going back to Venezuela," he penned, "however, they were completely terrified They strongly felt, with valid justification, that going to CECOT meant they wouldn’t return.

This tale initially surfaced in Los Angeles Times .