Venezuelan migrants deported by the US ended up in a Salvadoran prison. This is their legal status

SAN SALVADOR: The US government used an 18th-century wartime law to deport more than 200 Venezuelan immigrants to El Salvador, where they were immediately transferred to the country’s maximum-security gang prison.
And while a federal judge in Washington tries to determine whether the US government defied his order to return the migrants while they were in the air and insists that they must get an opportunity to challenge their designations as alleged members of a notorious gang, there has been no word from El Salvador’s president or judiciary about what the prisoners’ legal status is in that country.
That may change soon. On Monday, lawyers hired by the Venezuelan government took legal action on behalf of the Venezuelan prisoners seeking their release from the prison, which US Homeland Security Secretary Kristi Noem is scheduled to visit Wednesday.
The US says the Venezuelans were members of the Tren de Aragua gang, a criminal organization that US President Donald Trump declared an invading force, but has provided no evidence of their alleged membership. The Alien Enemies Act allows noncitizens to be deported without the opportunity to go before an immigration or federal court judge.
El Salvador hasn’t had diplomatic relations with Venezuela since 2019, so the Venezuelans imprisoned there do not have any consular support from their government either.
Even Salvadoran citizens have been living under a state of emergency that has suspended fundamental rights since 2022 and the country’s judiciary is not considered independent. All of which raises questions about the prisoners’ legal future in El Salvador.
What has El Salvador’s government said about the prisoners’ status in the country?
Nothing.
President Nayib Bukele announced Sunday that the United States had sent what he called “238 members of the Venezuelan criminal organization Tren de Aragua” to El Salvador and they were immediately sent to its maximum security gang prison. The US government would pay an annual fee for their incarceration, Bukele wrote in a post on X.
El Salvador’s Attorney General’s Office and Presidential Commissioner for Human Rights and Freedom of Expression did not respond to requests for comment about the status of the Venezuelan prisoners.
What do El Salvador’s laws say about the status of these prisoners?
Lawyer David Morales, legal director for the nongovernmental organization Cristosal, said there was no legal basis for the Venezuelans’ imprisonment in El Salvador. He said he knew of no Salvadoran law or international treaty that would support their imprisonment.
“They are illegal detentions because they haven’t been submitted to the jurisdiction of a Salvadoran judge, nor have they been prosecuted or convicted in El Salvador,” he said. As such, their imprisonment here is “arbitrary.”
He said El Salvador’s prosecutor’s office for human rights would have the authority to intervene, because it has a broad mandate when it comes to prisoners, “but we already know that it’s not playing its role because it is dominated, subjected to political power.”
What are lawyers doing?
Lawyers hired by the Venezuelan government filed a legal action Monday in El Salvador aimed at freeing 238 Venezuelans deported by the United States who are being held in a Salvadoran maximum-security prison.
Jaime Ortega, who says he represents 30 of the imprisoned Venezuelans, said his firm filed the habeas corpus petition with the Supreme Court’s Constitutional Chamber. He said that by extension they requested that it be applied to all Venezuelans detained in El Salvador.
Before it was filed, constitutional lawyer Enrique Anaya had suggested human rights organizations and the prisoners’ families should file habeas corpus petitions, essentially compelling the government to prove someone’s detention was justified “as a mechanism to denounce (the situation) as well as to pressure” the government.
Still, Anaya said the lack of judicial independence in El Salvador made success unlikely. Bukele’s party removed the justices of the Supreme Court’s Constitutional chamber in 2021 and replaced them with judges seen as more amenable to the administration.
“Who is going to decide these people’s freedom, US judges, Salvadoran judges?” Anaya asked. The habeas corpus petitions could at least “show the illegitimacy of this vacuum.”
How hard is it for Salvadorans to get out of prisons there?
El Salvador has lived under a state of emergency since March 2022, when Congress granted Bukele extraordinary powers to fight the country’s powerful street gangs.
Since then, some 84,000 people have been arrested, accused of gang ties. The state of emergency has allowed authorities to act without basic protections like access to a lawyer or even being told why they’re being arrested. They can be held for 15 days without seeing a judge.
Homicides have plummeted in El Salvador and the improved security has fueled Bukele’s popularity.
But while Bukele has said some 8,000 of those arrested have been freed for lack of evidence, many more have found no way out.
Last year, the Due Process Foundation published a report showing that the Constitutional Chamber of the Supreme Court had “systematically” rejected more than 6,000 habeas corpus petitions made by families of people arrested under the state of emergency.