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.
Yes, Americans have somehow come to believe that, among the things the USSR did, providing housing and education to ordinary people is bad, while disappearing people based on their political opinions to be killed or worked to death in gulags is good.