The Trump administration would appear to have the authority to send illegal immigrants convicted of other crimes to prison in El Salvador, based on a key provision in federal law.
Following Secretary of State Marco Rubio’s visit to El Salvador on Monday, the nation’s president Nayib Bukele posted on X, “We have offered the United States of America the opportunity to outsource part of its prison system.
“We are willing to take in only convicted criminals (including convicted U.S. citizens) into our mega-prison (CECOT) in exchange for a fee. The fee would be relatively low for the U.S. but significant for us, making our entire prison system sustainable,” he added.
We have offered the United States of America the opportunity to outsource part of its prison system.
We are willing to take in only convicted criminals (including convicted U.S. citizens) into our mega-prison (CECOT) in exchange for a fee.
The fee would be relatively low for… pic.twitter.com/HTNwtp35Aq
— Nayib Bukele (@nayibbukele) February 4, 2025
Rubio told reporters Monday that El Salvador will “accept for deportation any illegal alien in the United States who is a criminal from any nationality, be they MS-13 or Tren de Aragua, and house them in his jails,” the secretary noted.
And “he has offered to house in his jails dangerous American criminals in custody in our country, including those of U.S. citizenship and legal residence. No country has ever made an offer of friendship such as this,” Rubio said.
A U.S. official told CBS News afterward that the Trump administration has no plans to take Bukele up on his offer to jail U.S. citizens. CBS pointed out such a move would face serious legal challenges.
Would you support sending the most dangerous American prisoners to offshore prisons, possibly in other countries?
For one, U.S. citizens are protected by the Eighth Amendment’s prohibition against cruel and unusual punishment. “These rights extend to the existence of humane living conditions, adequate medical care, and protection from violence by other inmates,” the Justice Department explains on its website.
None of this could be guaranteed in El Salvador.
“No country has ever made an offer of friendship such as this.” — @SecRubio on President @nayibbukele’s historic proposal to the United States. 🇸🇻🇺🇸pic.twitter.com/IQqlbSBWXs
— Herbert Esmahan (@HerbertEsmahan) February 4, 2025
However, President Donald Trump has made it a top priority to remove members of the MS-13 and Tren de Argua gangs from U.S. soil.
On his first day in office, he issued an executive order designating both as foreign terrorist organizations and directing the expedited removal of their members.
Bukele is famous for locking up tens of thousands of gang members in his country and seeing the crime rate drop dramatically afterward to among the lowest in Latin America, according to The New York Times.
Some may argue that federal law prohibits sending those convicted of federal crimes to overseas prisons.
For example, 18 U.S. Code § 3621 clearly states the standard is “to the extent practicable,” prisoners are to be jailed 500 miles from their residence.
But the Trump administration can determine it’s not practical or in the best interest of the country to have noncitizens filling U.S. jails and send them on their way to El Salvador or wherever.
Last week, Trump announced plans to use the American military installation at Guantanamo Bay, Cuba, to house the “worst” criminal illegal aliens.
At a bill-signing ceremony at the White House for the Laken Riley Act, Trump said, “I’m also signing an executive order to instruct the Departments of Defense and Homeland Security to begin preparing the 30,000-person migrant facility at Guantanamo Bay. Most people don’t even know about it.”
He continued, saying the facility would be used “to detain the worst criminal illegal aliens threatening the American people.”
El Salvador would just be another alternative to Guantanamo, and no doubt cheaper.
So, yes, Trump can send criminal illegal immigrants to El Salvador without running afoul of federal law regarding where they should be imprisoned.
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