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The Trump administration inadvertently revealed on Monday that it is attempting to trap Venezuelan migrants in a catch-22 that would effectively block them from challenging their deportation and detention in an El Salvador prison. In a court filing, the government acknowledged that it had deported at least one migrant to El Salvador due to an “administrative error”—but argued that the individual had no right to contest his imprisonment because he is in the custody of a “foreign sovereign.” This argument confirms what’s been clear for weeks: The government intends to treat the prison as a black site where migrants have no constitutional rights whatsoever and may be subject to any treatment whatsoever—including indefinite detention, forced labor, torture, or death.
But Monday’s filing illustrates another, more subtle problem that the Justice Department probably did not intend to admit: The government is trying to shunt migrants’ legal claims through a channel that is doomed to end in failure. It seeks to ensnare these migrants in a Kafkaesque trap from which there may be no lawful escape. And it is trying to sell this subterfuge to the federal judiciary as a legitimate opportunity for due process if any migrants have plausible objections to their treatment.
To see how hollow that promise is, just look to the case of Kilmar Armando Abrego Garcia. A native of El Salvador, Abrego Garcia came to the United States in 2011, fleeing gang violence. Although he entered the country without authorization, an immigration judge granted him protected status in 2019, finding that he would likely face persecution if sent back to his home country. Federal law prohibits his removal to El Salvador. The Trump administration targeted him anyway, pulling him over while he was driving with his son, who is 5 years old and intellectually disabled. Immigration and Customs Enforcement agents falsely claimed that his “status has changed,” arrested him, and threatened to turn over his son to Child Protective Services if his wife did not arrive within 10 minutes. His wife, a U.S. citizen, was able to appear in time, but ICE refused to provide any information about her husband’s arrest. She did not know where he had been taken until she saw a news photo of alleged Venezuelan gang members in CECOT, a notorious Salvadoran mega-prison, kneeling on the ground, their arms raised above their shaved heads. One man, she realized, was her husband.
Abrego Garcia’s deportation was unambiguously illegal, and his lawyers swiftly filed suit demanding his return. On Monday, the DOJ responded with a bombshell admission: Abrego Garcia did have a right to remain in the U.S. and was shipped off to CECOT only because of an “administrative error.” The DOJ then declared that there was nothing the plaintiff or the government could do to fix this confessed mistake. Abrego Garcia, it wrote, would need to file a writ of habeas corpus, the traditional procedure for challenging unlawful detention. Indeed, it argued, Abrego Garcia’s claims “can proceed only in habeas”—he has no other way to fight his imprisonment. And yet, the department concluded, no federal court can hear his habeas claim, because he is “not in United States custody.” He thus has no remedy whatsoever and must remain in CECOT indefinitely.
Many aspects of this filing are profoundly disturbing on their own terms. (One section, for instance, argues that federal courts must “defer to the government’s determination that Abrego Garcia will not likely be tortured or killed in El Salvador,” an utterly unsubstantiated assurance.) The central analysis, however, is even more chilling in light of the Justice Department’s arguments in other deportation cases—namely, the class action before U.S. District Judge James Boasberg. At every juncture, the government has told Boasberg that the plaintiffs in his case must file writs of habeas corpus to contest their deportations. It insists that the plaintiffs cannot challenge their expulsion any other way. But now the DOJ has demonstrated how utterly futile a habeas claim would be: Any migrant who pursues this path could be whisked away to CECOT before obtaining relief, then permanently deprived of any legal recourse on the grounds that they are out of U.S. custody.
The plaintiffs before Boasberg clearly recognized that habeas relief was a dangerous decoy even before Monday’s filing. They have pressed their claims, instead, under the Administrative Procedure Act and the due process clause, arguing that the government’s invocation of the Alien Enemies Act of 1798 is unlawful. Doing so allowed them to file as a class, in a single court in D.C., representing all migrants subject to illegal deportation. (Habeas claims must typically be filed individually, in the district where a person is confined.) It also gave Boasberg more tools to forestall their wrongful deportation, including the temporary restraining order he issued to halt their removal. Habeas claims are simply too narrow to rectify these wrongs: They are essentially lawsuits against the warden or custodian in which an individual is being detained, demanding immediate release. But these plaintiffs aren’t asking to be released from detention in the United States. To the contrary, they are asking to remain detained in the U.S., and not be flown to El Salvador.
Already, then, it was doubtful that habeas could provide real redress for migrants. It wouldn’t allow them to secure a sweeping, classwide restraining order against removals. And it might not even give judges leeway to protect individuals from unlawful removal to CECOT on a case-by-case basis, since the Supreme Court has held that habeas cannot protect against deportation. But Monday’s filing demonstrates that, by trying to divert this class action into a series of individual habeas petitions, the government has an even dirtier trick up its sleeve. It has already asserted the authority to deport individuals to CECOT before they have an opportunity to file a petition. Now it claims that once a migrant is sent to El Salvador, they have lost their right to seek habeas relief in any capacity.
These arguments, taken together, show how the Trump administration is transforming CECOT into a black site to which migrants can be disappeared forever. It is even worse than Guantánamo Bay, because that facility is at least under American control—a key reason why the high court ruled that its inmates have habeas rights. CECOT, by contrast, is run by El Salvador, so the U.S. government disclaims any authority over its operations. Once a migrant is locked up there, the government says it has no power to demand his return, let alone any say over his treatment behind bars.
So, here, in short, is what the Justice Department is offering the federal judiciary as a constitutionally sound option for migrants who say they face illegal deportation to El Salvador. These migrants have no right to contest their classification as gang members. They have no right to challenge the president’s invocation of the Alien Enemies Act or secure a classwide restraining order against it. Their access to the courts is limited to an individual habeas petition in their district of confinement, which cannot practically address their grievances. Moreover, the government has no obligation to give migrants time—even just a few hours—to file a habeas petition or access to a lawyer or interpreter who could help. The government may, instead, whisk them away to El Salvador with no advance notice. And as soon as they are delivered to CECOT, they can no longer file a habeas petition, because they are out of U.S. custody.
This is no “alternative” to due process. It is a ploy, a red herring designed to enmesh migrants in a web of confusing legal procedures that can never be escaped. Yet, at this moment, the DOJ is asking the Supreme Court to vacate Boasberg’s classwide restraining order on the grounds that migrants “must seek habeas” one by one. Monday’s filing proves that this theory is offered in breathtakingly bad faith. Should the justices undo Boasberg’s protections, the Trump administration will swiftly resume deportations before individuals have a chance to object—then say they lost access to the courts the moment they reached El Salvador.
Because this situation is unprecedented, there is little case law to indicate whether the DOJ is correct that migrants lose their rights at CECOT. In Lawfare, habeas expert Amanda Tyler writes that the answer may depend on the U.S. government’s leverage over the Salvadoran government, and whether it can, as a practical matter, demand the return of an inmate. The Justice Department has already suggested that it cannot do so. And even if federal courts don’t believe it, a judge can’t command a foreign nation to comply with its orders. The Supreme Court therefore faces a decision with monumentally high stakes. If the justices let this deportation scheme move forward now, it may condemn thousands of innocent migrants to rot away in CECOT, their constitutional rights—and potentially their lives—snuffed out forever.
