WASHINGTON — If the government can deport an immigrant it labels as a gang member to El Salvador without due process, what prevents it from doing the same to a U.S. citizen?
This alarming possibility was front and center for immigration advocates and constitutional law scholars on Monday following President Donald Trump’s renewed push for a controversial plan to deport U.S. citizens convicted of unspecified offenses.
Trump broached the subject during a White House meeting with El Salvadoran President Nayib Bukele, who has consented to accept deportees from the U.S. into a notorious prison.
“We must always adhere to the law, but we have homegrown criminals who push people into subways and physically assault elderly women with baseball bats from behind; they are true monsters,” Trump told reporters. “I would like to include them.”
Last week, White House press secretary Karoline Leavitt indicated that Trump was keen on deporting “heinous, violent criminals” who are U.S. citizens to El Salvador “if there’s a legal pathway to do so.”
It remains unclear if the administration is limiting this to naturalized citizens. Under certain rare circumstances, naturalized citizens can lose their citizenship, such as in cases of fraudulent acquisition.
During Monday’s meeting at the White House, Trump mentioned that Attorney General Pam Bondi is “studying the law.”
The White House and the Justice Department did not respond to inquiries for more details on the proposal.
“This is clearly illegal and unconstitutional,” stated Ilya Somin, a professor at George Mason University’s Antonin Scalia Law School.
Emma Winger, an attorney at the American Immigration Council, a nonprofit advocacy group, pointed out that immigration law does not afford the government the authority to deport U.S. citizens.
Anthony Kreis, a professor at Georgia State University College of Law, reminded us that one of the grievances leading up to the American Revolution was the British practice of removing certain alleged criminals from the colonies to face trial elsewhere.
“I cannot fathom how exiling someone aligns with the fundamental rights of citizenship—especially if it means turning an American citizen over to a foreign authority,” he remarked.
David Bier, an immigration specialist at the libertarian Cato Institute, expressed that Trump’s comments highlight the urgent need for courts to intervene and halt this extrajudicial imprisonment conducted via foreign proxy.
“U.S. citizens cannot be deported for imprisonment abroad. There is no legal basis for that under any U.S. law,” he asserted.
The government claims that those deported to El Salvador are violent gang members; however, many have been deported without judicial oversight to confirm their identities, raising significant constitutional concerns.
In a previous case related to Trump’s attempt to invoke the Alien Enemies Act during wartime, the Supreme Court ruled that individuals subject to such deportations retain their due process rights.
In a separate commentary within that case, Justice Sonia Sotomayor underscored the extreme nature of the government’s position.
“The government’s stance implies that not only noncitizens but U.S. citizens could be taken from the streets, forcibly placed on planes, and confined to foreign prisons without any recourse if judicial review is unlawfully denied prior to removal,” she wrote.
The ongoing legal conflict surrounding Kilmar Abrego Garcia, an immigrant mistakenly deported to El Salvador as acknowledged by the Justice Department, also impacts considerations regarding the potential deportation of U.S. citizens.
Abrego Garcia faced no charges or convictions in either the U.S. or El Salvador and was deported before courts could act to protect his due process rights. The government asserts he is affiliated with the MS-13 gang.
Although a judge has ordered his return, the Trump administration now claims he falls outside their jurisdiction, contending that the decision on whether he returns rests entirely with El Salvador.
Bukele stated on Monday that he would not comply with such a request.
The Supreme Court has commented on the case, asserting that while the government must “facilitate” Abrego Garcia’s return, it cannot encroach upon the president’s authority in foreign policy.
If this rationale extends to U.S. citizens, they could theoretically be deported without the ability to challenge the action. Although Trump insists he targets criminals, there’s no safeguard against treating non-convicts similarly.
“The U.S. government has already made an illegal deportation to that prison and claims no recourse for their return, so it’s imperative the courts intervene to prevent U.S. citizens from being unlawfully swept into this situation,” Bier added.
In America, prisoners retain fundamental constitutional rights and often contest their convictions and confinement conditions. However, it is uncertain if they maintain such rights when detained in a foreign prison.
Last week, Homeland Security Secretary Kristi Noem mentioned at a Phoenix event that Bukele informed her that individuals sent to the prison in El Salvador “will never leave.”
Trump’s initiative provides “another compelling reason for the courts to compel Trump to return Abrego Garcia and others who were illegally deported to imprisonment in El Salvador,” advised Somin, the law professor.
