Fact Check: Can Trump Send Our Worst Criminals to El Salvador? According to This Law, The Answer Is Yes
El Salvador’s President Nayib Bukele has proposed a controversial plan too accept U.S. criminals into his country’s prison system, specifically targeting violent offenders and offering to house them in El Salvador’s mega-prison, CECOT. This offer was highlighted during U.S.Secretary of State Marco rubio’s visit to the country, where he noted that El Salvador would also receive deported criminals from any nationality, including members of notorious gangs like MS-13.
Bukele’s proposal involves charging the U.S. a fee for housing these convicted criminals, which he claims would be relatively low for the U.S. but important for El Salvador, thereby supporting the country’s prison system. He asserted that no other nation has made such an offer to the U.S., positioning it as an opportunity for cooperation.
However, U.S. officials have indicated that there are significant legal challenges to this plan, especially concerning U.S. citizens. The Eighth Amendment protects incarcerated individuals from cruel and unusual punishment, and there are concerns over the ability of El Salvador’s prison system to meet these standards.
The Trump administration has shown interest in expediting the removal of criminal illegal aliens, and while it could theoretically send criminals to El Salvador without violating federal law, current plans do not include implementing Bukele’s proposal. Instead, the administration is leaning toward utilizing facilities like Guantanamo Bay for detaining serious offenders.
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.
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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