Noem to visit El Salvador prison where deportees are in ‘legal limbo’

Kristi L. Noem, the U.S. secretary of homeland security, plans to travel Wednesday to a notorious maximum security prison in El Salvador that has become a legal black hole for Venezuelan migrants spirited out of the United States with no judicial hearing.

The Trump administration is locked in a court battle over whether it acted improperly in expelling the Venezuelans, who are accused of belonging to the Tren de Aragua gang. A U.S. judge had ordered the government to recall the planes carrying the detainees to El Salvador on March 15. But it didn’t do so.

While the arguments in Washington have centered on the migrants’ removal from the U.S., another legal issue has emerged: What happens to the Venezuelans now?

Salvadoran President Nayib Bukele offered last month to take in dangerous criminals held in U.S. detention facilities. Secretary of State Marco Rubio, who had previously complained about Venezuela’s refusal to accept deported migrants, said the deal would “save our taxpayer dollars.” The U.S. agreed to pay $6 million a year to keep them at the Salvadoran jail known as the Terrorism Confinement Center, or CECOT.

Now the prisoners are stuck – with no clear access to either the Salvadoran or U.S. justice systems. “They are in a legal limbo,” said Enrique Anaya, a Salvadoran constitutional lawyer.

Several of their families have said they are not gang members at all, just migrants who had tattoos, such as “Strong like Mom.” The U.S. government has acknowledged that many did not have criminal records in the U.S.

In El Salvador, “they aren’t sentenced, they didn’t commit crimes, they weren’t tourists. What is the migration status of these people?” asked Napoleón Campos, a Salvadoran attorney specializing in international law. “How can you enter El Salvador overnight and go straight to jail, without committing a crime, and without being sought in extradition?”

On Monday, lawyers hired by the Venezuelan government, who said they represented 30 of the detainees, submitted a habeas corpus petition for all the jailed Venezuelans.

“There is no legal basis for their detentions,” the lawyers argued in their submission to the Constitutional Chamber of El Salvador’s Supreme Court. They noted that the men had not violated Salvadoran law, and they asked for their release.

Legal experts said that request was unlikely to be granted. The chamber’s judges were installed after Bukele’s party won a congressional majority in 2021. They have consistently backed the president.

CECOT is one of Latin America’s largest prisons

The 238 Venezuelans arrived in San Salvador on three U.S. planes, along with 23 Salvadorans accused of belonging to the ruthless MS-13 gang. The Trump administration used an 18th century law, the Alien Enemies Act, to expel 137 of the Venezuelans – essentially arguing they belonged to an invading force linked to the Venezuelan government. The act allows expedited deportation of noncitizens. The other 101 Venezuelans were removed under traditional immigration law. Bukele described all of them as members of Tren de Aragua, which was designated a terrorist group last month by the U.S. government.

The Trump administration has removed other undocumented migrants to third-party countries – deporting more than 400 people from countries such as China and Iran to Panama and Costa Rica last month.

The difference this time is that the migrants were jailed like criminals. The three planes were met by heavily armed Salvadoran security forces, who bused the detainees to CECOT, where their heads were forcibly shaved. The prison, built for 40,000, is known for its harsh conditions. Up to 70 men share a single cell, and they sleep on metal bunks with no mattresses, according to journalists who have been to the prison. The inmates are not allowed visits by their relatives or lawyers.

It wasn’t clear when – or if – the Venezuelans would ever be tried or freed.

Noah Bullock, executive director of the human rights group Cristosal, said that President Donald Trump and Bukele had usurped from the courts the power to determine who was a criminal and who should have legal rights.

“Nobody here is waving the flag of Tren de Aragua,” he said. “But do you want the president to have the right to determine who is a terrorist and who has rights – and who doesn’t?”

Rubio has likened the removal of the Venezuelans to a counterterrorism operation. The State Department did not respond to a request for comment on the legal basis for sending the Venezuelans to a Central American prison.

Asked for comment, the Justice Department responded with Noem’s statement after U.S. District Judge James E. Boasberg’s initial order blocking the removal of the Venezuelans. Noem said that the ruling “disregards well-established authority regarding President Trump’s power.”

Salvadoran attorneys said that, in order for the U.S. government to outsource prisoners to El Salvador, the countries would have to sign a treaty or convention, and get the approval of their legislatures. In such a treaty, “you’d have to spell out who would have legal jurisdiction over these people – the United States or El Salvador,” Anaya said.

“At least the U.S. is citing a law, albeit one that’s raising a lot of questions in the federal courts,” he said, referring to the Alien Enemies Act. “In El Salvador, there is no law.”

The Salvadoran presidential commissioner for human rights, Andrés Guzmán, did not respond to a request for comment.