A Law and Order Government Ends Up Being Neither

On the deportation of suspected gang members to a mega-prison in El Salvador

Photo by Tingey Injury Law Firm on Unsplash

There’s no question that President Trump ran on the policy of mass deportations and the fear that immigrants, especially dark skinned immigrants were polluting our nation with filth and violence and ruining our greatness. Remember, this is one of the official images pushed out by the Trump campaign during the election:

At the time I wrote: “The warning here is that under Kamala, we will continue to have a historic border crisis and our country will turn into a ‘third world’ country crowded with black and brown people who will bring down our neighborhoods with crime and filth and drugs and their foreign cultures. We will lose our first world status.”

This logic still drives his policies today, like the recent invocation of the 18th century Alien Enemies Act, which had previously been used to imprison Japanese Americans during WWII. Today President Trump is using the Act and a designation of the Tren de Aragua gang as a “terrorist” organization to justify sending hundreds of suspected (that’s key) gang members from foreign countries to El Salvador’s Centro de Confinamiento del Terrorismo, a 40k-person prison for terrorists and violent gang members, known for torture and terrible conditions (for a description of the prison, see here). In exchange for taking these suspected gang members, we’re sending El Salvador $6 million a year.

Let me begin by stating the baseline moral objection to this policy and political arrangement. These gang members have not been (in every case) convicted of a crime or of being in the Tren de Aragua gang. They have been accused by ICE. Accused largely by tattoos and social media posts. And when journalists have pressed leaders about the lack of due process to ensure that we’re only sending convicted criminal gang members, well, here’s one official’s reply “what was Laken Riley's due process?” In other words, because a woman was horrifically killed by an illegal immigrant without “due process,” other “illegal” (that’s in question in some cases) immigrants can be convicted and sentenced to a brutal prison in El Salvador without due process. No court, no jury, no opportunity to explain your tattoos, just the ICE agent’s assessment of your status as a gang member and you’re shipped off to a foreign country’s prison (for a legal analysis of this, see here).

Just to be clear, this is Trump’s “Border Czar” saying that since one illegal immigrant did something horrific, we have the right to suspend due process to other illegal immigrants. How’s that for moral reasoning.

Secondly, I’m not comfortable with the idea of sending convicts (even if they were properly convicted) to a foreign maximum security prison which we are paying $6 million a year instead of to their country of origin. I understand that Venezuela was rejecting flights of deportees at the time President Trump sent these prisoners, but that seems to me a reason to negotiate and wait until Venezuela does agree to receive prisoners again, not to send them immediately to another country. Perhaps this is my naivete about foreign negotiations. I grant that’s a possibility. My discomfort remains.

But my biggest concern is with three reported cases of immigrants deported to this brutal El Salvador prison who were apparently misidentified as gang members. This is a horror story.¹

The first story is of a professional soccer player, Jerce Reyes Barrios, who apparently has a tattoo of his favorite football team, Real Madrid, which was identified as a “gang tattoo.” He allegedly has no criminal record. ICE found a picture of him on social media with a hand gesture that appears to be gang related. And based on these facts (as far as we can tell), ICE declared him a member of Tren de Aragua. ICE has reassured us that they are confident that he is a gang member and their evidence goes beyond a tattoo, but they haven’t given further evidence nor have they taken this evidence to a court where Barrios could plead his case. So they are essentially just asking us to trust them. That’s not how our legal system is supposed to work; he is owed due process even as a non-citizen. We shouldn’t just assume Barrios’s lawyer’s are telling the truth, of course. It’s possible he is a gang member. But without due process there’s no chance for him to plead his case and for us to ascertain the truth.

The second story is of a man named Andrys (his last name has been withheld by his lawyer out of fear of repercussions) who is a gay makeup artist from Venezuela who legally appealed for asylum but then was charged with being part of Tren de Aragua based on his tattoos. I want to be careful here and not judge a book by its cover. I suppose it’s technically possible that the gay makeup artist just happens to be a secret gang member. Stranger things have happened. But honestly, it seems more likely that ICE sent an innocent man seeking asylum to a terrible mega-prison filled with actual gang members and murderers.

The thing is, if ICE does have more compelling evidence that he’s a member of Tren de Aragua, we’ll never know, because they didn’t bring it to court. And he never got a chance to defend himself, which was his right.

The third story is of E.M. another Venezuela fleeing violence. In this case he and his girlfriend legally applied as refugees and were granted refugee status after thorough background checks. In other words, he was here legally. But once he landed in America, he was forced to show his tattoos (which he had already reported) and was quickly declared a member of Tren de Aragua. His girlfriend was deported back to Columbia and he was imprisoned. His family assumed he would be returned to Venezuela, but one day his data disappeared in the immigration database and his family realized he had been deported to El Salvador’s prison for terrorists. He apparently has no criminal convictions and his family earnestly denies that he’s a gang member.

As a fundamental matter of justice, this act by the Trump Administration was wrong. And it was terrifying. Imagine being arrested for your misidentified tattoos and sent to a mega-prison in a foreign country where you can’t even contact your lawyer. That appears to be Barrios’s fate, Andrys’s fate, and E.M’s fate. And maybe the fate of others. Even if they were gang members, is it just to send prisoners to a foreign prison with allegations of torture and other inhumane conditions? If not, why don’t we care? Outside of the National Review’s coverage of the deportations and their legal standings, I haven’t seen notable conservative commentary on this issue.

My deep fear is that something very rotten is growing in our country. A disgust and hatred of our fellow Image bearers. A willingness to condemn them to any suffering so long as they are out of our nation. A belief that if they are gang members, if they are even potential gang members, they are “animals” and should be treated as animals.

Consider the replies on Twitter to the lawyer defending Andrys, gleefully mocking his being deported regardless of the destination. Consider the image from the “Trump War Room” and its paranoia about the US becoming a third world country by “importing the third world.” I know it’s passé to talk in terms of “racism” in our quickly “vibe-shifting” culture, but it seems unavoidably true to me that for a non-trivial number of Americans, a racial animus drives their support for mass deportations. For this group, there is little-to-no concern for justice or human life, only a will to rid America of third-world foreigners, and these cases are a perfect example. If we suspect them of being gang members, all the better.

The Biden Administration’s failure to fix the border crisis (rather, their expansion of the crisis!) helped lead to this problem, it is worth noting. Nations can’t infinitely take in new immigrants without proper vetting and healthy systems in place to nationalize and acclimate the citizens. Europe is an example of this. I’ve written about the complexity of the immigration policy issue before. My point here is merely that this animosity toward immigrants didn’t fall out of the sky. Mass immigration and lack of proper vetting have contributed to it. And that could have been prevented.

But that’s no excuse for injustice or animosity today. Whatever mistakes the Biden Administration made are no excuses for suspending what is due (legally and according to Justice) a person today—their right to due process. We know of three plausible cases of mistaken gang identification. When I originally drafted this article, there were only two. The third one, E.M.’s story, popped up right after I finished! How many more of those hundreds sent to El Salvador were wrongfully “convicted” without an actual conviction? How many more stories are going to come out? Are we just going to sit by and allow our government to “disappear” people to a brutal prison simply because they have a different skin color or because they aren’t legal citizens yet or because we think there are “too many of them around here”? You see my fear. This is not just about three men potentially being wrongly punished by a broken justice system. It’s the fear that we don’t mind so long as it reduces the immigrant population, because we’re sick of their type poisoning the blood of our country. That’s the logic that scares me. It’s ungodly, it’s evil, and it will lead to violence.

We need immigration reform. We need to arrest and deport dangerous criminals who are here illegally. But we need to do so justly.

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1. I waited a week or so to write this article to see if these stories would implode, as many stories in the media seem to do. But so far, I have not seen any evidence discounting them. If I am made aware that these men are, in fact, gang members, I’ll edit the article to reflect that. But my general point will still stand: they deserved a chance to defend themselves before being sent to a brutal foreign prison. The only reason we are speculating about whether the Trump Administration got this wrong is because they didn’t take the time to use due process and allow each person to defend themselves. They opened the door to this speculation.