Immigration lawyers scramble as Trump pursues legally questionable deportations

The Trump administration wrongfully deported a Maryland resident to a notorious mega-prison in El Salvador and has now asked the Supreme Court to block attempts to return him to the U.S.

The dramatic case is raising alarm among lawyers representing migrants in the U.S. as they grapple with an administration that is removing their clients with little due process and refusing to address deportation errors. The Trump administration has so far deported approximately 250 men to a maximum-security prison in El Salvador despite serious questions about whether they have criminal records. It’s unclear whether any of these men will ever be free again. The deportees are now in the overcrowded mega-prison known as the Terrorism Confinement Center, CECOT, which is alleged to subject prisoners to torture, solitary confinement, and lack of adequate food and health care. The Salvadoran government has never released anyone from the prison alive.

Lawyers note that wrongful deportations are not uncommon. However, this is the first time an administration has refused to address errors it acknowledges.

“Wrongful deportations, of course, do happen. When they do, there are legal mechanisms in place to facilitate return,” said Jeremy McKinney, the former president of the American Immigration Lawyers Association, who previously worked on two cases during the first Trump administration in which individuals were wrongfully deported from the U.S. and later returned. “The United States provides the travel clearance necessary to facilitate the return. To say, ‘Oh, well, it’s out of our hands’ is absurd. There is a role and a responsibility of the United States government, especially when we triggered the action that resulted in this person being in this prison in El Salvador.”

In a court filing, the Trump administration argued that it couldn’t return Kilmar Armando Abrego Garcia—a Salvadoran national whose removal from the U.S. was halted by a judge due to his fear of persecution by gangs—to the United States because he is now in El Salvador and out of U.S. jurisdiction. A judge later ruled that Abrego Garcia should be returned to the U.S. within 24 hours, a ruling the Trump administration asked the Supreme Court to halt temporarily.

On Monday, Chief Justice John Roberts issued a stay of the deadline for the Trump administration to return Abrego Garcia. Meanwhile, the Justice Department placed the government attorney who admitted Abrego Garcia was wrongfully deported on administrative leave.

Immigration lawyers noted that the Trump administration is allegedly paying the government of Salvadoran President Nayib Bukele to hold migrants deported from the U.S. Bukele is a close ally of the Trump administration and would likely comply with a request to release an individual wrongfully deported.

The 43-year-old Salvadoran president and Bitcoin enthusiast plans to visit the White House on Monday for what a White House spokesperson described as an “official working visit.”

“[The administration] could quite easily go to Nayib Bukele and ask for him to return the person who was falsely deported there,” said Aaron Reichlin-Melnick, a senior fellow at the American Immigration Council. “Of course, there are the practical geopolitics of it. Bukele could say no, and I don’t think there’s anything a U.S. court could do to prevent Bukele from saying no. But at the very least, I think the United States is required to make a good-faith attempt to bring the person back.”

Reichlin-Melnick added that the case of migrant men being deported to El Salvador is unique because the individuals in question are also imprisoned at the United States's behest and are often not deported to their home countries.

“There is a long history of people being deported in error, and in those circumstances, normally what the government does is work with that person’s lawyer to have them returned,” he said. “This is an unusual circumstance because this person is in a Salvadoran prison. It’s not like a normal deportation where a person is back in their home country living a normal life. The United States, normally, once it’s deported somebody, washes its hands of that individual. In contrast here, these people are imprisoned, and they’re imprisoned, allegedly, at the U.S. request and through U.S. payment.”

The Trump administration is using the Alien Enemies Act of 1798 to deport alleged members of the Venezuelan gang Tren de Aragua, arguing that gang members have launched a criminal invasion on behalf of the Venezuelan government. Legal experts say that argument is flimsy at best. A federal judge ordered several of the planes carrying migrants, many of whom were Venezuelan men, not to depart for El Salvador until a court had reviewed each case. The aircraft left anyway, and a federal judge said he believes the administration violated a court order when it failed to halt the deportation.

Organizations suing on behalf of the Venezuelan migrants accused of belonging to the Tren de Aragua gang filed a request for the U.S. Supreme Court to uphold a temporary block on Trump’s use of the Alien Enemies Act to deport more migrants to El Salvador’s mega-prisons.

On Monday, however, the Supreme Court vacated the lower court’s order blocking the Trump administration from using the Alien Enemies Act as the legal basis for the deportation. The Court stated, however, that the Act can only be relied on in the future if the deportees are allowed to contest their deportation in court before being removed. The Court did not address the issue of what should happen to those already removed who never had the opportunity to contest their case.

In recent weeks, the Trump administration has ramped up the deportation of migrants, and also international students involved in protests. Many foreigners in the U.S. are now seeking legal advice and representation. That has left advocacy organizations and lawyers from white-shoe law firms that provide pro-bono work scrambling to formulate a response.

“We’ve been having a lot of really intentional meetings about how we respond to some of the things we anticipated coming,” said a lawyer who has represented wrongfully deported migrants, who asked to speak on background in order to talk freely. “In Project 2025, they had already laid out a road map of what they planned to do, which helped us think through those situations. We keep getting surprised by how far the administration will go.”

Meanwhile, McKinney said that many lawyers are dealing with an influx of requests from the family members of individuals who have vanished.

“Lately, we get calls every day from a family member who says, ‘My husband is gone,’” he said.

Lawyers say the United States is currently grabbing people off the streets and deporting them to El Salvador before their family members or law enforcement can determine what has happened. Often, lawyers have difficulties locating those individuals again.

“It’s a long-standing problem that our government’s immigration-enforcement system disappears people into the system. The specifics of that evolve and change, but it’s always been a system that can disappear people into black holes for a period of days, weeks, months, or people get removed and it’s hard to find out,” the lawyer who asked to remain anonymous added. “It’s always a real risk that someone gets removed from their home country and you can’t get in touch with them.”

But in the case of El Salvador’s CECOT, there’s even less information about what happens inside.

Ivania Cruz, a lawyer and human-rights defender from El Salvador, noted that many of the people in CECOT are gang members carrying out long prison sentences who were transferred to the mega-prison from other penitentiaries. The Bukele government built CECOT as recently as 2023. The facility can purportedly hold 40,000 people.

“No one has ever left CECOT,” Cruz said.

Reichlin-Melnick noted that little public information exists about the deal the Trump administration struck with El Salvador.

“Certainly, the appearance is that the United States is paying a foreign country to imprison people indefinitely, despite those people not having done anything that would normally permit a government to detain them,” said Reichlin-Melnick. “This seems, on its face, inherently arbitrary detention in direct violation of these people’s rights.”