On what terms is Bukele holding Venezuelan aliens deported from the United States?
On what terms is Bukele holding Venezuelan aliens deported from the United States?
I n discussing the court battles over President Trump’s deportations of aliens to El Salvador, I have urged that the courts should push the administration to clarify on the record the terms under which President Nayib Bukele’s regime has accepted those aliens and is imprisoning them. Congress should be asking, too.
There is now more urgency about this matter.
The New York Times reports that President Bukele has offered the Venezuelan regime of Nicolás Maduro a prisoner swap: He would repatriate to Caracas the 252 Venezuelan nationals President Trump has so far deported to El Salvador if Maduro would release prisoners he is holding. Bukele, who is very active on X, posted the following (in Spanish), directly addressing Maduro:
I want to propose a humanitarian agreement that includes the repatriation of 100 percent of the 252 Venezuelans who were deported, in exchange for the release and surrender of an identical number (252) of the thousands of political prisoners you hold.
Unless this is just posturing by Bukele to make a point about Maduro’s persecution of his political opposition, it is hard for me to believe that he would have made such an offer absent clearing it with the Trump administration. After all, Bukele is hoping to collect more millions in American funding for, among other things, continuing to accept deportees and increasing the number he is accepting.
This is problematic for several reasons.
The United States government does not recognize the Maduro regime as the legitimate government of Venezuela. The Biden administration took that position after Maduro stole the 2024 election that he lost decisively, and the Trump administration has formally maintained that stance. Trump being Trump, there is confusion about this: The president sent an envoy, Richard Grenell, to meet with Maduro in late January, after which six Americans Maduro had been holding were released. Nevertheless, it is still official U.S. policy that Maduro’s regime is not the recognized government of Venezuela.
Consequently, it would be a big deal if the Trump administration were to negotiate a prisoner swap with Maduro, thereby legitimizing him as Venezuela’s leader. It should be just as big a deal if Trump is doing such a negotiation but using Bukele as a cutout.
This possibility raises the question: On what terms is Bukele holding Venezuelan aliens deported from the United States?
According to public statements by Bukele’s own government, El Salvador received $6 million to detain approximately 300 prisoners for one year, with the caveats that, by the end of that year, the United States government would decide the disposition of the detainees, and the agreement could be extended.
To my knowledge, the Trump administration has not confirmed these terms in the court proceedings attendant to the Venezuelan aliens or other non-Venezuelan deportees, such as Kilmar Abrego Garcia, the Salvadoran national whom the administration illegally deported to El Salvador (in violation of a 2019 withholding of removal order that prohibited his repatriation). If the reported terms of the U.S.-El Salvador deportation agreement are accurate, then, as I’ve contended previously, El Salvador is a mere bailee and the Trump administration still has control over the deported aliens. Hence, if Bukele is negotiating with the illegitimate Marxist dictator of Venezuela, he is doing it on behalf of the United States — i.e., this would be a Trump-Maduro deal.
There were different legal (and illegal) bases for deporting the Venezuelan detainees.
As noted in Bukele’s X post, 252 Venezuelans, in total, have been deported to El Salvador by the Trump administration. Most were on the three planes flown from Texas on March 14-15. The Trump administration sent another 17 aliens on a military aircraft on March 31; we don’t know the breakdown of these: some were Venezuelans alleged to be members of Tren de Aragua (TdA), others Salvadorans alleged to be members of MS-13 (Mara Salvatrucha). The administration appeared poised to deport more aliens over this past weekend, but paused its operation when the Supreme Court intervened (see my posts here and here).
Of the 252, it has been reported that about 137 were deported pursuant to President Trump’s proclamation under the Alien Enemies Act (AEA). These are the most controversial deportations because the aliens received no due process. As the Supreme Court held on April 7 in Trump v. J.G.G., before being deported under the AEA, aliens have a right to notice that the deportation is planned and a reasonable opportunity to challenge their deportation in a habeas corpus petition — i.e., to contest both (a) that they are members of TdA, and (b) that the AEA has been lawfully invoked. (The AEA, which was enacted in 1798 and is codified in Section 21 of Title 50, U.S. Code, applies in wartime conditions, when Congress has declared war or when a foreign power has invaded or conducted a predatory incursion in the United States. We are not at war. And, though TdA is undeniably evil, it is debatable whether the organization is an arm of the Venezuelan regime, and doubtful that it has conducted an invasion or predatory incursion within the meaning of the AEA.)
According to the Trump administration, the remaining approximately 115 Venezuelans were deported under the regular application of federal immigration law — meaning, presumably, that they all had orders of removal. I also assume that most, if not all, entered the U.S. illegally (others may have overstayed visas or been stripped of any legal status they may have had due to criminal conduct).
These immigration-law deportations are not as problematic as the AEA deportations because these aliens did get due process. Still, the deportations are not without controversy.
First, transferring aliens to a prison in a foreign country could be illegal if an alien’s only crime was to violate U.S. immigration law. Second, because El Salvador’s giant terrorism detention center (CECOT) has a notorious reputation for human-rights violations that has been noted by the State Department, the Trump administration’s agreement that deportees be detained there could raise issues under federal laws and regulations regarding the treatment of prisoners, and under the Convention Against Torture and Other Cruel and Inhuman or Degrading Treatment or Punishment — as Justice Sotomayor noted in her partial dissent in the above-linked J.G.G. decision and in a statement she added to the Court’s April 10 ruling in Abrego Garcia’s case, Noem v. Abrego Garcia. (Both of these Sotomayor opinions were joined in full by Justices Elena Kagan and Ketanji Brown Jackson.)
Third, there is another potential problem: Were any of these aliens in a situation analogous to Abrego Garcia?
Remember, some of these aliens claim to have fled Venezuela because of fear of the Maduro regime. Is it possible that, in U.S. immigration proceedings, they were found to be removable (because they were illegally in the United States) but given withholding of removal to Venezuela (meaning: Like Abrego Garcia, they could still legally be deported but could not legally be repatriated to their native country)?
If that situation obtains for some of these Venezuelans, then it was probably legal for the Trump administration to deport them to El Salvador (whether it was legal to arrange for their imprisonment in CECOT is a different question). Yet, if any of these aliens had withholding of removal orders, it would not have been legal to deport them directly to Venezuela. Notably, it would be illegal for the Trump administration to do by indirection — i.e., by having Bukele send such aliens to Venezuela — what it could not lawfully do directly.
Obviously, Bukele’s offer to Maduro to repatriate to Venezuela 252 aliens deported to El Salvador by the Trump administration raises many concerns and potential legal pitfalls. To answer them, Congress and the courts hearing relevant cases must establish the terms under which the United States government has deported and plans to continue deporting aliens to El Salvador.
Is Bukele an independent actor in trying to cut a prisoner exchange deal with Maduro? If so, by what right is he dangling aliens who still have American due process rights that the Trump administration is obligated to enforce? And if not, is President Trump using Bukele as his agent in negotiations with the Maduro regime that the United States government does not recognize as legitimate?