By: Jane Genske, Volume 43 Staff Member

View/Download PDF Version: The Deportation Marketplace (Genske)

The outsourcing of asylum responsibilities by wealthier nations through financial incentives—often termed “the commodification of refugees”—is not a new phenomenon. Countries have long paid others to accept and detain migrants, effectively shifting their obligations elsewhere. A recent agreement between the United States and El Salvador exemplifies this troubling practice, as the United States will reportedly pay El Salvador to detain immigrants in its notorious mega-prison, “Centro de Confinamiento de Terroristas” (CECOT). While framed as a solution for handling deportees with criminal records, the arrangement raises serious legal and ethical concerns, particularly regarding human rights violations, due process, and compliance with international refugee protections. This blog post examines the broader implications of this transactional approach to immigration policy, questioning the legality and morality of treating migrants as livestock shipped from one country to another.

In early February, El Salvador’s President Nayib Bukele confirmed the agreement to accept immigrants into the country’s mega-prison, CECOT, in exchange for a fee to sustain its prison system. While Bukele has been credited with reducing gang violence through mass incarcerations, human rights organizations have condemned the country’s harsh prison conditions, citing overcrowding and lack of due process. What’s particularly concerning, is that the United States will be paying El Salvador to detain immigrants. Critics of this agreement say it is both illegal and unethical, stating “it is a bizarre and unprecedented proposal being made potentially between two authoritarian, populist, right wing leaders seeking a transactional relationship.” This transactional arrangement has no legal basis and likely breaches multiple international laws protecting migrants’ rights.

Immigration detention is the United States government’s practice of holding individuals in custody while determining their immigration status, with facilities often run by private prison companies. Not all of the people detained by ICE came to the United States with criminal backgrounds, however. Some came as asylum-seekers and ended up in ICE detention as a result of a DUI, drug possession and traffic offenses. As a result, some of the deportees headed to CECOT could have non-violent criminal backgrounds and be sharing a prison with members of MS-13. This agreement only specifically mentions convicted criminals, but we know the Trump administration has already relocated nonviolent, “low-risk” migrant detainees with little or no criminal history to Guantanamo Bay.  Therefore, those potentially impacted include long-term residents, recent arrivals and vulnerable individuals such as pregnant women, survivors of domestic violence, and unaccompanied minors when they turn 18.

Although many of the immigrants getting deported to El Salvador have criminal convictions, many also came to the United States as asylum-seekers. Asylum is granted to individuals in the United States seeking protection because they have suffered past persecution or fear that they will suffer future persecution due to their race, religion, nationality, political opinion or membership in a particular social group. In other words, some of the detained individuals who may fall victim to this new arrangement and American politics broadly, may have attempted asylum, but were denied because they did not meet the legal threshold or fall into one of these protected classes. For instance, an individual fleeing gang violence, domestic violence, or general instances of persecution could wind up detained in an El Salvadorian prison.

Typically, if an immigration judge orders an individual removed, they must be removed to their country of origin. This agreement, however, between the United States and El Salvador ignores this protocol, essentially shuttling immigrants from one place to another regardless of their due process rights.

Domestic law may not be useful in putting a stop to this arrangement, but international law, specifically, the principle of non-refoulment under the 1951 Refugee Convention and the Covenant on Civil and Political Rights (ICCPR) may be violated if the deportation plan proceeds. Under non-refoulment, a party to the 1951 Convention shall not deport a person to a country where there are strong reasons to believe they may face torture. Factors to be considered include evidence of widespread human rights violations and instances of ill-treatment. The ICCPR, when ratified by the United States became “the supreme law of the land” under the Supremacy Clause, giving the treaty federal law status. Under the ICCPR, parties are obligated to protect fundamental human rights, including protection from torture, ill-treatment, and arbitrary detention.

In CECOT, the prisoners do not receive visits, there are no programs, no workshops, no educational programs, and they are not allowed outside. There is no meat served in CECOT and drinking water is sparingly provided. There is no medical treatment for detainees with chronic illness or injuries, and the conditions are exceedingly unsanitary. Last summer, at least 261 people died in CECOT. As a signatory to the 1951 Convention, the United States would be breaching its international commitments by transferring immigrants, especially those with minimal criminal backgrounds, to CECOT, where overcrowding, sanitation issues, and inhumane practices are well-documented.

Immigrants are therefore becoming the economic and political pawn of the United States—offering money, threatening to take back the Panama Canal or impose tariffs if countries refuse to accept the countless numbers of deportees. While the fee may go towards sustaining the prison system and actually be legal, this arrangement essentially treats immigrants like commodities, who can be transported from one country to another in exchange for money.