Donald Trump said he would be “fine” and “very happy” with the removal of incarcerated American citizens to El Salvador’s jails. Elon Musk called it a “great idea.”
It’s also illegal and an unconstitutional assault on human rights, according to immigration law experts and constitutional scholars.
The Trump administration is reviewing a proposal from El Salvador’s President Nayib Bukele to imprison Americans in the Central American country’s jails, “even though they’re U.S. citizens or legal residents,” according to Secretary of State Marco Rubio.
“Bukele is undoubtedly trolling, but to emphasize again: this is so incredibly illegal that there's not even a hint of a possible way to do it under any circumstances whatsoever,” according to Aaron Reichlin-Melnick, senior fellow at the American Immigration Council think tank.
“It violates international law and the U.S. constitution. Period. End of story,” he wrote.
Immigrants of any nationality could be deported from the United States to El Salvador under Bukele’s proposition, but his country’s notorious self-described “mega prison” could also be filled with “convicted criminals” regardless of their immigration status, Bukele said.
Bukele said he would charge a fee that “would be relatively low for the U.S. but significant for us, making our entire prison system sustainable.”
“There are obviously legalities involved. We have a Constitution,” Rubio said at a news conference Tuesday alongside Costa Rican President Rodrigo Chaves.
“But it’s a very generous offer. No one’s ever made an offer like that — and to outsource, at a fraction of the cost, at least some of the most dangerous and violent criminals that we have in the United States,” he said. “But obviously, the administration will have to make a decision.”
“The U.S. is absolutely prohibited from deporting U.S. citizens, whether they are incarcerated or not,” University of California, Berkeley law professor Leti Volpp told CNN.
Courts have affirmed constitutional protections ensuring Americans cannot be stripped of their citizenship for criminal convictions, meaning that they cannot be deported, regardless of whether they are incarcerated.
“I know of nothing that would give the president the authority to force U.S. citizens serving federal prison sentences to serve their time in a different country's prisons,” law professor M. Isabel Medina with Loyola University New Orleans College of Law told The Independent.
“To my knowledge there is no statutory provision that gives the [Bureau of prisons] discretion to send [citizens] outside of the federal corrections system,” she said. “Other than the lack of statutory authority, another complication would be application of the Eighth Amendment, procedural due process, First Amendment and other constitutional protections that federal prisoners are entitled to while serving their sentences.”
The U.S. constitution “is not enforceable in other countries,” she said. “Because the constitutional authority to create federal crimes lies with Congress, not the Executive, and because U.S. citizens may not be deported, even if imprisoned, it would appear to be illegal for the president to do this particularly without any statutory authority.”
El Salvador’s proposal is “bizarre and unprecedented,” and appears designed with “two authoritarian, populist, right-wing leaders seeking a transactional relationship,” Emerson College international politics professor Mneesha Gellman told CNN.
“It’s not rooted in any sort of legal provision and likely violates a number of international laws relating to the rights of migrants,” she said.
From the Oval Office Tuesday, Trump said “hardened criminals” and “horrible people” in American prisons should be moved to other countries.
“If we can get them out of the country, we have other countries that would take them, it’s no different than a prison system except it would be a lot less expensive, and it would be a great deterrent — send them to other countries,” he told reporters.
“We have people that are just as bad” as “illegal migrants,” Trump said.
“If we can get them out, I would be very happy,” he said.
“There is very little constituency and even less sympathy for violent criminals,” noted Lawyers for Good Government vice chair Adam Cohen. “So Trump and Marco Rubio are probably expecting widespread MAGA support and minimal pushback for a proposal like this. But deporting U.S. citizens — even ones you find loathsome — is still illegal.”
Rubio — who was unanimously confirmed in the U.S. Senate, with all Democrats in support — announced El Salvador’s proposal at the beginning of a trip to five Latin American and Caribbean countries intended to introduce the Trump administration’s foreign policy priorities.
The State Department’s own description of El Salvador’s overcrowded prisons characterizes them as “harsh and dangerous.”
“In many facilities, provisions for sanitation, potable water, ventilation, temperature control, and lighting are inadequate or nonexistent,” the agency notes.
A statement from the State Department called Bukele’s proposal an “extraordinary gesture never before extended by any country.”
El Salvador suspended due process for thousands of people during a state of emergency that has been in place for nearly three years straight. In 2023, Bukele’s regime arrested tens of thousands of people, cramming them into a facility with no plans to prepare them for reentering society.
Journalists and humanitarian groups have also uncovered thousands of innocent people in the country’s jails, swept up in mass arrests.
Bukele’s agreement “is the Trump administration's latest attack on immigrants and U.S. citizens alike,” according to Amnesty International.
“Deporting people of various nationalities to El Salvador – where they will risk being shut off from due process and constitutional protection, imprisoned in cruel conditions, away from lawyers and support systems — is an assault on human rights regionally,” the group said.
The League of United Latin American Citizens, the nation’s largest Latino civil rights group, called the proposal a “sad day for America.”
The group “opposes treating deported non-criminal migrants like cattle who can be shuttled from one country to another without regard to their home of origin,” according to president and chair Roman Palomares.
