The Volokh Conspiracy
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Most Migrants Deported to Imprisonment in El Salvador Under the Alien Enemies Act Had no Criminal Record and Many had Entered the US Legally
A new Cato Institute study by David Bier presents the most extensive available evidence on these points.
An important new study by my Cato Institute colleague David Bier shows that most of the Venezuelan migrants deported to imprisonment in El Salvador had no criminal records, and many (perhaps a majority) entered the US legally. This makes the Trump Administration's actions even more reprehensible. Here is an excerpt:
Shortly after the US government illegally and unconstitutionally transported about 240 Venezuelans to be imprisoned in El Salvador's horrific "terrorism" prison on March 15, CBS News published their names. A subsequent CBS News investigation found that 75 percent of the men on that list had no criminal record in the United States or abroad. Less attention has been paid to the fact that dozens of these men never violated immigration laws either…..
The US government not only denied these men due process; it has also generally failed to provide their families, their attorneys, or the public any information about what it alleges these men did to deserve incarceration in El Salvador…..
Moreover, in most cases, the men never knew the "evidence" against them or that they were being removed to El Salvador. Finally, the US and Salvadoran governments won't allow the men to talk to anyone, so there is no way to interview them directly.
Given the total lack of transparency by the federal government, we have compiled what the families of the men themselves are reporting about their entries and what likely triggered their incarceration in El Salvador….
Sadly, no information regarding one in three of the men could be found online. Maybe no one in their families knows they are missing, or maybe they are too afraid to speak up. For 48 percent of the 174 about whom we have some information, we have no information about their method of crossing into the United States. For many, the only information is Facebook or Instagram posts from their mothers pleading for information about their children…..
The government calls them all "illegal aliens." But of the 90 cases where the method of crossing is known, 50 men report that they came legally to the United States, with advanced US government permission, at an official border crossing point. A Reuters survey of 50 men also placed the proportion of those who entered legally at about half. This isn't surprising because about half of all the Venezuelans who have immigrated over the past two years came legally as well—either as refugees, parolees, or visa holders. The proportion isn't what matters the most: the astounding absolute numbers are. Dozens of legal immigrants were stripped of their status and imprisoned in El Salvador….
The men were workers—construction laborers, pipe installers, cooks, delivery drivers, a soccer coach, a makeup artist, a mechanic, a veterinarian, a musician, and an entrepreneur. Most of those who were released quickly found jobs in the United States.
A majority of the men are fathers. Altogether, the men were trying to support 44 children. The US government did not inform their families, lawyers, or anyone else of their impending imprisonment at US government expense in a Salvadoran prison known for torture and other abuses that would be illegal inside the United States. Agents simply disappeared them without charge or trial or even acknowledgment, which is rightly considered a crime against humanity….
The US government asserts that they are "criminal terrorists" who are "confirmed" members of a criminal organization known as Tren de Aragua (TdA). Investigations by the New York Times, Bloomberg, and CBS News have all found that few of the imprisoned men have any criminal record…
Most, at least 42, were labeled as gang members primarily based on their tattoos, which Venezuelan gangs do not use to identify members and are not reliable indicators of gang membership. According to court documents, DHS created a checklist to determine that heavily weights "dressing" like a gang member, using "gang signs," and, most critically, tattoos. No criminal conviction, arrest, or even witness testimony is required.
DHS's images of "TdA tattoos" include the Jordan logo, an AK-47, a train, a crown, "hijos," "HJ," a star, a clock, and a gas mask. But as the American Immigration Council's Aaron Reichlin Melnick has shown, all of these supposed TdA tattoos were not taken from Venezuelan gang members but rather stolen by DHS from social media accounts that have nothing to do with TdA or Venezuela….
Among the supposedly damning tattoos from the legal immigrants were several roses, multiple clocks, crowns over the names of family members, playing cards used to cover up an ugly scar from a childhood accident, a song lyric from a reggaeton artist from Puerto Rico, the Real Madrid logo on a professional soccer player, and a reference to the video game Call of Duty on a teenager.
For readers who may not know, Real Madrid is one of the most popular professional soccer teams in the Spanish-speaking world. A Real Madrid tattoo on a Hispanic immigrant is no more indicative of criminality than a Dallas Cowboys tattoo on an American.
Many of the reasons why the Trump's invocation of the Alien Enemies Act are unjust and illegal apply irrespective of the immigration status of the migrants targeted for deportation, or whether they have committed any crimes. As multiple federal courts have held, the AEA can only be used when there is a declared war, an "invasion," or a "predatory incursion" by a foreign government, and none of these prerequisites are present here.
In addition, even people who have committed crimes (or against whom there is strong evidence) cannot be deported to imprisonment without due process. Indeed, due process is required in large part in order to determine whether the person in question really is a criminal or not. The Administration's use of the AEA to deport people to imprisonment without due process is a blatant violation of the Due Process Clause of the Fifth Amendment, and would be so even if these Venezuelans really were TdA members.
Elsewhere, I have argued that the distinction between legal and illegal immigration is not as morally significant as many tend to think.
Nonetheless, the fact that most of the AEA deportees have no criminal records and many (perhaps a majority) entered the US legally makes the Trump Administration's actions even more odious than they would be otherwise. David Bier is right to call them a "crime against humanity."
It is always possible to claim that the deportees actually did commit crimes, just ones that were not recorded or detected. It's difficult to definitely prove otherwise! But that sort of reasoning could justify deporting or imprisoning virtually anyone. Can you definitively prove that you have never committed any crimes? Based on the sort of "evidence" cited by the government - tattoos, clothing, and the like - almost anyone can be labeled a criminal. Our legal system requires due process in large part precisely for the purpose of preventing such abuses.
