Title: Behind the Trump Administration Scenes on Abrego Garcia

[MUSIC]

Brian Lehrer: It's The Brian Lehrer Show on WNYC. Good morning, everyone. Did he just say at the end of the BBC there, lunchtime, London time? Isn't it like three o'clock there? Do they eat lunch at three o'clock in England? They're weird if they do. Good morning. Again today, we will lead with the tension between deportation and the Constitution. There was so much at stake. There is so much at stake, and not just for the deportees.

President Trump was elected in part on a promise that a large majority of Americans in polls said they support, agree with, that he would deport violent criminals who were in the country illegally back to their home country as his first immigration and deportation priority, right? He's gone so much further than that, as you know, deporting people who they identify as criminals or gang members who haven't been convicted of anything or, in many cases, haven't even been charged with anything in this country or their countries of origin.

They've been trying to deport young adults with student visas or even Green Cards based on their participation in pro-Palestinian protests, claiming those students impede the US from carrying out its foreign policy by organizing and expressing their views. There were significant developments yesterday in at least two of these cases in court. We'll get into details, but remember the underlying issues, which is why we keep coming back to this topic.

Do basic constitutional rights apply only to US Citizens or also to others who are here? If the government flouts court orders in cases like these, what about other cases not having to do with immigration? The concern about authoritarian rule, call it Viktor Orban-type rule, perhaps, is front and center in these cases. The judge in the Mohsen Mahdawi case that we'll talk about in a sec likened the government's actions to McCarthyism.

The judge called it that. Not a lawyer or an activist, or a politician. Again, that was in the case of Columbia student Mohsen Mahdawi, a Green Card holder for the last 10 years with no criminal record, and detained for deportation when? When he showed up as scheduled for an appointment he had last month as part of his application for citizenship. After his release yesterday, Mahdawi said this.

Mohsen Mahdawi: I am saying it clear and loud to President Trump and his cabinet, I am not afraid of you.

[shouting]

Brian Lehrer: Mohsen Mahdawi in front of supporters yesterday in Vermont, where he was released. There were developments in the Kilmar Abrego Garcia case, too. These are such important cases because to many Americans, Mahdawi and Abrego Garcia may not be very sympathetic figures. It depends on your point of view, but it's in cases like those where the rule of law gets tested and precedents that can affect everybody else get set. With me now on these developments and the bigger picture is Nick Miroff, staff writer at The Atlantic, who covers immigration, the Department of Homeland Security, and the US-Mexico border. Nick, thanks for coming on. Welcome to WNYC.

Nick Miroff: Thank you, Brian. It's good to be with you.

Brian Lehrer: Where would you start beyond what I already said about why the court yesterday ordered Mohsen Mahdawi released?

Nick Miroff: Well, it's a lot. We've seen these cases have been basically in the headlines every day, and I think one of the common themes that you really hinted at in your intro there is that the Trump administration has really tried to make this about the individuals and the merits of whether or not they're good people, bad people. You hear the president say that all the time, "Well, he was a bad person."

It almost gives them, in their view, an excuse to cut corners on the due process, but as the courts are saying to them, and as all show Americans, I think, agree with that this is really about judicial oversight, the ability of the judicial branch to be a check on executive authority, and the fact that even people who may have unsavory things in their past deserve some modicum of due process and a chance to contest whatever the government is claiming about them in court. Obviously, we have seen some very shocking and grave examples of what happens to people who never get that chance and who are not only deported but sent to a harsh megaprison in El Salvador.

Brian Lehrer: Right. I want to read a little bit for listeners who may not have heard it or may not have heard this many lines from US District Judge Geoffrey Crawford's opinion yesterday. His ruling, "Our nation has seen times like this before, especially during the Red Scare and Palmer Raids of 1919 to 1920 that led to the deportation of hundreds of people suspected of anarchist or communist views."

He added, "The wheel of history has come around again, but as before, these times of excess will pass." The judge wrote, "Similar themes were sounded during the McCarthy period in the 1950s when thousands of noncitizens were targeted for deportation due to their political views." From the bench. That's some historical context for this, Nick. How do you see that decision framing the stakes in a case like this, regardless of whether someone agrees or disagrees?

Nick Miroff: It's only one of several decisions that we have seen from justices who have been appointed by Democrats as well as Republicans, and they're saying that the administration needs to afford due process to people, that it can't retaliate against them based on their speech, that if the government is going to accuse them of being terrorists and criminals, that they deserve a chance to contest that in court, and that the government has to produce evidence of those things.

We are seeing the judicial branch try to restrain Trump's very aggressive initial salvo in this mass deportation campaign, and I think that this is going to remain a source of tension going forward. We've seen from the White House as they're kind of trying to have it both ways and saying, "Oh, well, we're complying with all the federal courts and that we respect the Supreme Court," and then they go out and they say that the judges don't get to tell the executive what to do and that they're Marxist lunatics, even justices with conservative stories and credentials. This is going to remain a source of tension, and it will maybe even get bigger as the mass deportation campaign expands.

Brian Lehrer: Yes, the judge in this case was appointed by President Obama. I haven't seen the administration react politically like calling him an Obama judge or rogue judge or anything like that, as they sometimes do. Maybe I just haven't come across it.

Nick Miroff: Yes, that has been their playbook time and time again. What I've noticed is they've almost stopped responding to each individual decision at the White House level and just kind of dismissing any opinion against them as politically biased.

Brian Lehrer: We should say the Mahdawi case is not a criminal or suspicion of criminal activity case. The claim was from Secretary of State Marco Rubio that Mahdawi's continued presence in the country could adversely affect the government's ability to carry out its foreign policy with respect to the Middle East in fighting global antisemitism. Do you know if the judge ruled that the government failed to make a case for an actual impediment, like just because this guy is organizing students or stating the views that he's stating, that that doesn't actually stop the United States government from carrying out its foreign policy as opposed to just disagreeing with aspects of it?

Nick Miroff: I haven't read that particular decision, Brian, so I'm not sure, but that is the justification that they have used for several of these student cases, particularly when we saw it the first time, most prominently with Mahmoud Khalil, another Columbia student who was also a permanent resident, and he remains detained in Louisiana. His first child was just born, and he missed that occasion.

Again, this is them kind of reaching into this very obscure element of US law that has been seldom used in the past to claim that someone's presence and even the possibility that they could in the future say something that would harm or be detrimental to US foreign policy, that that is grounds for them to be expelled from the country.

Brian Lehrer: A different court has so far upheld the detention of that other Columbia student protest organizer, Mahmoud Khalil, also a Green Card holder. You've reported on that case. Do you know what the difference was seen to be legally, or is it just different judges have different opinions in similar cases?

Nick Miroff: I think what we're seeing is a very stark example of the kind of venue, forum difference that you get between a court in some of the southern districts and courts in the Northeast. This is an example of one of the reasons why I think the government is often in a hurry to get people, once they've been detained, into a more favorable venue, a more favorable forum.

Just as we've seen under previous administrations like the ACLU filing lawsuits in the Ninth Circuit in the hopes of getting a more favorable outcome, the government tries to go to the 5th Circuit, which has got the reputation for being the most conservative. They're in New Orleans to try to be in a court where they think they'll get the outcome they want.

Brian Lehrer: Nick Miroff, who covers immigration for The Atlantic, with us. 212-433-WNYC is our phone number. For any questions or comments or stories you have, call or text 212-433-9692. As we talk about the Mahdawi case, the Kilmar Abrego Garcia case, the Khalil case, and more, 212-433-9692, and the bigger picture of what's at stake for even people who are not involved in immigration policy disputes or legal disputes, and we should say that even how to fight antisemitism is an issue with multiple points of view.

As The New York Times reported during Passover week, a coalition of leading US Jewish groups across denominational lines issued a joint statement saying the president's campus crackdowns were making Jews less safe. They reported the coalition includes reform, conservative, and reconstructionist organizations, as well as HIAS, a nonprofit immigrant aid group founded by Jewish Americans. Here's Amy Spitalnick, CEO of the group called the Jewish Council on Public Affairs, speaking about that on Morning Edition earlier last month.

Amy Spitalnick: Multiple things are true at the same time, but this entire conversation over the last few months has been set up as this false choice, as we wrote in the statement. We know that antisemitism is real and it's rising, and our organizations in this coalition have been speaking out clearly against the alarming rise in antisemitism since October 7th and frankly, long before that as well.

At the same time, we've seen this escalating use of our legitimate concerns about antisemitism to undermine democratic norms and rights, to attack academic institutions, and to otherwise go after the core values of our democracy that have been so inherent to Jewish safety and the rights and safety of all.

Brian Lehrer: Amy Spitalnick from the Jewish Council on Public Affairs. Nick, is there a scenario, and I realize you're an immigration reporter, a Homeland Security reporter, you're not a legal analyst, but is there a scenario where that debate as framed there gets played out in court, or is that a policy dispute beyond the reach of the courts because it's not about what's constitutional or unconstitutional?

Nick Miroff: This is a little bit outside my area of expertise, Brian, but my sense is that all of this is headed for high-level litigation and the Supreme Court weighing in on this confluence of speech, foreign policy, immigration status, and security threats, right? Because the administration is claiming that these individuals either pose some sort of extraordinary security threat or that they're spreading hate in the United States, so it has the right to use these really extraordinary executive authorities that bypass a lot of the due process checks and give it the ability to deport people as they see fit. This seems to be headed in only one direction, and that would be a Supreme Court intervention.

Brian Lehrer: Would it matter legally if a protest organizer with a Green Card was found to have been supporting Hamas in particular? I'm not saying these were. Some people say they were, some people say they weren't these individuals, but would it matter legally if they did?

Nick Miroff: I think that if there was evidence that they had provided support, again, this comes down to material support for a terrorist organization, then that would make a difference. If you are inciting violence, specifically inciting violence, obviously that rises to the level of something beyond First Amendment protections. I think that it would have to look at the line. Well, in the case of the Colombian students, we did not see explicit rhetoric or activism on behalf of Hamas, the organization.

Brian Lehrer: We'll continue in a minute with Nick Miroff from The Atlantic. We'll get into the Kilmar Abrego Garcia case, one of the cases involving deportation of parents of a two-year-old that you may not have heard about yet, and his article in The Atlantic on what might come next in the mass deportation program. We did hear Trump, in his 100 Days rally and Cabinet meeting, say there's going to be a big phase 2 on the way. Stay with us. Brian Lehrer on WNYC.

[MUSIC]

Brian Lehrer on WNYC. We continue now on developments in the last day in the tension between deportation and the Constitution. There is so much at stake, and not just for the deportees. Our guest is Nick Miroff, staff writer at The Atlantic, who covers immigration, the Department of Homeland Security, and the US-Mexico border. For the record, his Atlantic bio page says he can be reached on Signal at NickMiroff.78. Nick, did you feel left out when only your boss, Jeffrey Goldberg, was included on the Yemen attack plan Signal chat?

Nick Miroff: Oh, I was happy to leave it to Jeff. I thought he handled it brilliantly, and wow, what a wild story that was.

Brian Lehrer: All right, just curious. Before we go on to the developments in the Kilmar Abrego Garcia case and some of your other writing, Richard in Brooklyn is calling in. He says he's an immigration lawyer and thinks he can explain more of the reason why Mahdawi, the Columbia student, was released, but Khalil, the Columbia student or recent Columbia student, is still being detained. Richard Durant, WNYC, thank you for calling in.

Richard Durant: Good morning, Brian. As I see, the difference between the case in Vermont and the case before an immigration judge in Louisiana is the immigration judge ruled that she doesn't have the right, she doesn't have jurisdiction to make a determination on the constitutionality of a federal law. That's the law that allows the secretary of state to just make this simple blanket statement that somebody is deportable, which means that they belong in immigration court. Essentially, she's saying, "I can't even reach this issue. This is an issue for a federal judge only."

Brian Lehrer: Oh, because she wasn't a federal judge. The judge in Vermont was a federal judge, is a federal judge.

Richard Durant: Correct.

Brian Lehrer: Aha. That's interesting. Why don't Khalil's lawyers just bring his case right away before a federal judge? We seem to have this Mahdawi precedent now.

Richard Durant: They are before a federal judge, I believe, in Newark.

Brian Lehrer: Interesting. You know what, since you're an actual immigration lawyer, can you hang on for a second? I'm going to take another caller who has an immigration law question. Maybe you can answer it, right? Hang on. Hang on for a second, Richard. Here's Maria in Morristown calling in. Maria, you're on WNYC. Hello.

Maria: Hi, Brian. I have a quick question for your panelists. What is the difference or what rights do students with visas have versus a Green Card holder versus a citizen in the freedom of speech right?

Brian Lehrer: Richard, do you have a take on that, as an immigration lawyer? Were you able to hear her question?

Richard Durant: Yes, I did. That's a great question, and that's the question that we're all discussing nowadays. People on my side are saying it doesn't matter if you're a permanent resident or a Green Card holder, or a citizen. You still have basic First Amendment rights, but as you know, this administration is willing to push that and any argument as far as they can. As far as students are concerned, I'm telling my student clients who have clean records, "Don't travel. It's not worth it."

Brian Lehrer: Meaning they may stop you at the border when you try to come back in for the next semester.

Richard Durant: Yes, they're looking at people's cell phones, social media posts. I advised somebody the other day who doesn't make social media posts that are political, but her boyfriend does. I said, "Unfriend him." We have to be ultra, ultra conservative nowadays. I always was. We have to be far more conservative than we ever were. I'm sorry, I didn't answer the caller's question. My best answer to that is that I would say that students have the same First Amendment rights as Green Card holders and citizens and push that argument, and the government obviously will be on the other side of that.

Brian Lehrer: Yes. In fact, here's a text we got from another listener who writes, "We returned from a trip abroad earlier this week. Customs flagged my husband, who has a Green Card, to search his bags and would not allow our family to stay together during this search. Ordinarily, this would have been just an inconvenience, but given this climate, I, a US Citizen, was terrified."

Richard and Nick, I'm going to ask you, too, on Maria's basic question, "What are the rights of a Green Card holder when it comes to freedom of speech compared to that of a citizen?" It's incredible to me that over 250 years of US history that that question hasn't been settled.

Nick Miroff: Well, my understanding is it really comes into play at the moment of admissibility, right? Because if you're a US Citizen and Richard can please jump in to correct me here if I'm wrong, but you're if you're a US citizen, you have the right. You can't be denied entry into the United States. They can detain you for a thorough inspection. It's different when you're a Green Card holder or have some other status, and you re-enter the country, and the government gets to make a determination about whether you can be admitted to the United States.

If there is something that they can potentially use against you, it leaves you in a much more vulnerable position. While your speech rights would be the same here in the United States, those rights or whatever speech you make could then be used to make an admissibility determination as you try to re-enter the United States.

Brian Lehrer: Richard, thanks for the call. Go ahead.

Richard Durant: Can I answer, Nick?

Brian Lehrer: Go ahead, Richard. You can.

Richard Durant: Quickly. Nick, you're absolutely correct about the issue of admissibility being triggered when somebody comes into the country or actually applies for any kind or applies for citizenship, removability and admissibility kick in at those times, but what I think the government is doing and will continue to do is bootstrap this issue of admissibility with this blanket power of the Secretary of State to then find, "Well, this person can compromise or negatively affect the foreign policy of the United States." I think you're right, Nick, and I think they got to put the two together at the same time.

Nick Miroff: Yes, I know. This is consistent with what we've seen in terms of particular figures in this administration, namely Stephen Miller, who is the architect of the president's immigration policy, really digging deep into the dark recesses of US laws to find ways that they can exert executive authority over immigrants and in order to boost deportations, essentially.

Brian Lehrer: Richard, thanks for calling in. [crosstalk] Okay, go ahead. Keep going.

Richard Durant: I'm sorry, man.

Brian Lehrer: Tom Homan.

Richard Durant: Let's not leave out this guy, Tom Homan.

Brian Lehrer: Sure.

Richard Durant: They are fudging the truth. They're lying.

Brian Lehrer: The border czar is his title. Go ahead.

Richard Durant: Right. They're. They're lying about what due process even means. They're lying about Abrego Garcia already having had his due process rights. Yes, he had them, and a judge said he was more likely than not to be persecuted in El Salvador, and that's an order that they can't violate. If the government thought that he was no longer in danger, they had to go back to the same judge and provide proof that says he's no longer in danger. Thank you.

Brian Lehrer: Richard, thanks again for your call. Maria in Morristown, see what you started there?

Maria: Well, I think everybody has that question. I don't know. I just became a US Citizen, and I'm glad I did, and I'm telling all my friends, "Please do it as soon as you can."

Brian Lehrer: Thank you very much for your call. Call us again. Jack in Kearny, you're on WNYC. Hi, Jack.

Jack: Yes, hi, Brian. Listen, I live in the most densely populated county in the United States. I live in Hudson, but I'm also right next to Bergen, also next to Essex, Passaic. We have the largest number of illegal aliens in the state of New Jersey. Any of those towns, I don't feel any danger. I want to know the statistics about crime. They keep flaunting crime, crime, crime. Where? I live here. I see it every day. I've been a firefighter for 25 years.

Brian Lehrer: Right. You're saying there's a lot of immigrants in Hudson County and thereabouts.

Jack: Yes.

Brian Lehrer: And you don't feel unsafe?

Jack: No, and illegal immigrants would come to my firehouse, ring the doorbell for EMS calls because they knew we wouldn't turn them on to ICE, we wouldn't try to get them deported.

Brian Lehrer: You're a firefighter. j

Jack: Yes. We became the local medical personnel for illegal aliens because they knew firefighters would just help them and not turn them in to ICE. Where's the statistics? I don't see any crime. I walk the streets day and night. I have no problem. [crosstalk]

Brian Lehrer: Jack, thank you for that question. This is something, Nick Miroff from The Atlantic, that I've talked about before on the show. I've looked up the overall statistics that various government entities have been keeping for years and for decades, violent crime rates among immigrants, including undocumented immigrants, compared to people born in the United States.

Study after study that I see shows that immigrants, including undocumented immigrants, people here illegally, commit crimes at a somewhat lower rate than native born Americans. I don't know if you've looked at those stats. If you have anything different, say so. What I see the administration doing successfully, because people don't talk about the question that Jack is asking all that much, is spotlighting, and some media carry it and make it the story, individual crimes that are committed.

They are committed by people here illegally, and some of them are horrible, heinous, violent crimes, but then that becomes the face of immigration or of people here illegally, when there should be context, and what are the actual rates, right? What does an individual crime mean? What should it mean for immigration policy overall? I think that gets lost way, way, way too often.

Nick Miroff: Yes, Brian, you're exactly right. The president wielded that political tactic very powerfully on the campaign trail, and his administration continues to do it. Look at the focus on the Lincoln Riley case in which a Venezuelan migrant murdered a Georgia student who was out jogging, and a really shocking, tragic case, but this really became a major focus of the president's campaign and rhetoric.

What we've seen, they just yesterday, Immigration and Customs Enforcement, ICE, released their 100 Day statistics showing that they have arrested and deported about 65,000 immigrants during Trump's first 100 days, and one of the things you'll notice, they say that three quarters of them had criminal convictions or pending charges, and that sounds like they're going after criminals.

When you really dig into ICE statistics, what you see is that the major criminal categories are immigration violations, typically crossing the border illegally or remaining in the country, or repeat attempts to entry, that type of thing, or other traffic violations, nonviolent crimes, so you're right. The academic studies that are out there, and there haven't been enough to really, I think, conclusively settle this, but the studies that are out there have found that immigrants are incarcerated, lower rates, and that they commit violent crimes and once you take out immigration crimes, they offend at lower rates than than US-born offenders.

Brian Lehrer: Let's get to the Kilmar Abrego Garcia case, which is relevant to this conversation, the man who the administration said was deported mistakenly to El Salvador, but they've been defying or borderline defying a nine-to-nothing Supreme Court order to facilitate his return. You have an article called "How the Trump Administration Flipped on Kilmar Abrego Garcia." What do you mean by "flipped"?

Nick Miroff: That's right. Well, what we revealed for the first time is that in the days after Abrego Garcia's family sued the US Government over his wrongful deportation, that Trump administration attorneys, attorneys at the Justice Department, the Department of Homeland Security, the State Department, began discussing a plan to fix the problem and bring him back. This wasn't being treated as a major political wedge issue.

They were simply trying to undo what they would then call in court an administrative error, and a lot of these conversations centered around how they could keep Abrego Garcia safe in El Salvador, knowing that they had violated the judge's orders, the 2019 order that had granted him this legal status called withholding of removal, that basically meant that he didn't qualify for permanent residency in the United States or asylum, but he couldn't be sent back to El Salvador because the judge had determined that the threat to his life was real and significant and that he deserved to not be sent there.

That is what the Trump administration violated when they arrested him and sent him to El Salvador and into that prison. These Trump administration officials were all discussing, "Well, how do we keep him safe, and even how do we start to approach the President of El Salvador through the US Ambassador to try to negotiate his release and return to the United States?"

Brian Lehrer: Here's an exchange about a lot of that that made news after President Trump did a first 100 Days interview with ABC News anchor Terry Moran. This starts with Moran.

Terry Moran: Your government sent him back to El Salvador and acknowledged in court that was a mistake, and now the Supreme Court has upheld an order that you must return him to facilitate his return to the United States. What are you doing to comply?

President Trump: Well, the lawyer that said it was a mistake was here a long time, was not appointed by us. We should not have said that. We should not have said that, and just so you understand, [crosstalk] the person that you're talking about, you're making this person sound-- this is an MS-13 gang member, a tough cookie, been in lots of skirmishes, beat the hell out of his wife, and the wife was petrified to even talk about him, okay? This is not an innocent, wonderful gentleman from Maryland.

Terry Moran: I'm not saying he's a good guy. It's about the rule of law. The order from the Supreme Court stands, sir.

President Trump: But came into our country illegally.

Terry Moran: You could get him back. There's a phone on this desk.

President Trump: I could.

Terry Moran: You could pick it up. With all the power of the presidency, you could call up the president of El Salvador and say, "Send him back right now."

President Trump: If he were the gentleman that you say he is, I would do that, but he's not.

Terry Moran: The court has ordered you to facilitate that.

President Trump: I'm not the one making this decision. We have lawyers who want to do this.

Terry Moran: You're the President. The buck stops in his office.

President Trump: No, no, no, no. I follow the law. You want me to follow the law. If I were the president that just wanted to do anything, I'd probably keep him right where he is.

Terry Moran: The Supreme Court says what the law is.

Brian Lehrer: There's that Trump Terry Moran moment on ABC, and the news that came out of that, besides the contentiousness of the exchange for many people, Nick, was that Trump said he could get him back from El Salvador. Why was that newsworthy?

Nick Miroff: Well, Brian, there's so much to unpack there, and first, credit to Terry Moran for this line of tough questioning. One thing I want to point out off the top is that when the President said that it was the lawyer that had made a mistake, and that I guess he was saying that this career attorney wasn't appointed by us, was an odd line because the admission of an administrative error was made by a senior ICE official, the ICE official who had to sign off on Abrego Garcia's deportation.

He testified under oath that this was an administrative error. He said it was done in good faith. It wasn't on purpose or anything, but that is the origin of the error claim, not from the attorney that the Trump administration later fired. Beyond that, they've been trying to have it both ways, right? They're saying that they can't bring him back because he's no longer subject to US jurisdiction, that a court can't order him back, that it's out of their hands, and then you see the President there in that interview with ABC saying that he could bring him back.

Everyone knows that the President has the power to do that, has the influence over El Salvador. The US government is paying El Salvador $15 million, according to Senator Chris Van Hollen, who went down to El Salvador this month, paying the Salvadoran government to detain Abrego Garcia and the others that the Trump administration has sent down. They're trying to have it both ways.

What we see really there is the President wanting to be the judge of character, right? It's "Is he a bad guy? Is he a good guy? We're going to tell you all the terrible things he's done." None of it can be addressed in court. This is all happening in the media, and they're on social media and in their public statements. What the US District Court has said and what the Supreme Court has upheld is that these claims need to be aired in court and that Abrego Garcia needs to get the due process rights that were denied.

Brian Lehrer: There was a New York Times story after that interview that said the Trump administration asked to get Abrego Garcia back, and President Bukele of El Salvador said no. It's disputed whether that actually happened, but do you have any take on that and President Bukele's emerging role in all this?

Nick Miroff: Yes, they're in this sort of Schrodinger space, right? Where it's like, "Well, it's out of our hands. It's up to the President of El Salvador," and then the President of El Salvador, who has said that if the US asks for him back, he could give him back. It's sort of no one's responsibility at this point. I think what they're trying to do there, they could potentially say that they have complied with the sort of bare minimum of what the Supreme Court upheld, which was that they had to try to take steps to facilitate his release.

Of course, the US Judiciary cannot order a foreign government to release an individual. If the Trump administration is saying, "Well, we're going to comply with this," but then back-channeling to El Salvador that it doesn't really want Abrego Garcia back because the president has said he's not coming back, well, then there's very little that the judicial system can do to actually make it happen.

Brian Lehrer: I also saw it reported by The Times that Bukele is now saying he only wants convicted criminals sent there for imprisonment at the notorious CECOT prison. I'll read a little from that. Again, this is in The New York Times. "El Salvador's president pressed the US for assurances that the deportees had gang ties. President Bukele of El Salvador has championed President Trump and his immigration agenda and publicly celebrated the arrival of the deportees from the United States, but behind the scenes, Mr. Bukele expressed concern about whom the United States sent to be imprisoned, according to people familiar with the situation and documents obtained by The Times."

It says, "During the negotiations, Mr. Bekele told US officials he would take only what he described as convicted criminals from other countries. He made it clear that he did not want migrants from other nations whose only crime was being in the United States illegally." Nick, assuming that's all accurate, why might Bukele draw the line there rather than bond with Trump over making a tough guy show, which Bukele likes to make in general, of taking people into his prison system?

Nick Miroff: Well, I can't speak to that myself. I don't know that that is, in fact, the case. We know that Bukele is taking millions of dollars from the Trump administration to detain these folks. We know that the president, when he met with Bukele earlier this month, said that "We want you to expand your facilities fivefold so that even the United States would be able to send what Trump called homegrown criminals, right? US Citizens to El Salvador," and Bukele didn't appear to be pushing back on any of that.

Now, whether he has some private concerns about the country's image, if he starts just taking in all kinds of people into his prisons who don't have actual criminal convictions, I'm not sure if that's a factor for him. What we have seen is that other Latin American countries don't necessarily want to take in large numbers of citizens from other nations. Over the last decade, various US administrations have tried to negotiate these deals to get countries to take back deportees from other countries and with varying degrees of success.

He may have been talking to that, but we also know that in these conversations that we described and revealed in The Atlantic that even the US officials who were behind the scenes dealing with the aftermath of the Abrego Garcia lawsuit were privately expressing doubts about the evidence that he was a gang member, and they were asking Immigration and Customs Enforcement for specific evidence that had been used to make the determination that he was this MS-13 leader. He wasn't. He wasn't on the initial list of MS-13 members that Bukele had asked for.

Brian Lehrer: This also relates to the other story I said we were going to talk about, and we don't have as much time to do that. I know you got to go in a couple of minutes, as I first hoped we might, but this one involving family separation and deportation of people who haven't been convicted of anything to El Salvador, to that prison. An ABC News story on this as he was sent to El Salvador, she was sent to Venezuela, their two year old is still in the US.

The government says that they were in one of the parents' case, part of Tren de Aragua, the gang, the other one, the mother, allegedly for drug smuggling and prostitution, but they never showed it, and the child has been kept in the United States in foster care. I guess my question about this is sort of political, and it relates to all of these. If they were just deporting actual convicted violent criminals like the ones they've highlighted in some of the events, they totally have the public on their side, I think. These cases involving political dissent, family separation, and we see in the 100 Day polls people like what Trump is doing at the border, and yet they say they don't like what he's doing on immigration, which presumably refers to all this other stuff. Why do it?

Nick Miroff: Well, I think they want to assert executive authority in very aggressive ways. That's why we're seeing them use things like the Alien Enemies Act of 1798, and specifically, I'm talking about Stephen Miller's sort of grand plan for the arc of the Trump administration's immigration enforcement campaign. They're using things like the Alien Enemies Act, the foreign terrorist organization designation, right?

Now these Tren de Aragua alleged members are foreign terrorists, so that is the basis on which they're saying that they cannot show the evidence, that they don't have to show the evidence, and that the threat is so extraordinary that they have to take these kinds of extreme measures to to send them to this prison in El Salvador. The reporting shows that the vast majority, I believe 90% in a couple of assessments, of the people that they accused of being Tren de Aragua members and sent to El Salvador don't actually have criminal convictions in the United States.

As we know, a lot of these determinations appear to derive from their tattoos, from the people they associated with, so all of this is very thin evidence to send people to a prison facility whose reputation is that no one ever is released from. The United States is paying the government of El Salvador to hold people there, and this is, I think, their playbook for how they want to really scale up the mass deportation campaign as Congress debates the reconciliation bill, and Republicans are planning to give tens of billions of dollars in additional funding for this enforcement campaign to the Department of Homeland Security.

Brian Lehrer: Right. That's the next phase. That's why you wrote the article in The Atlantic called "We're About to Find Out What Mass Deportation Really Looks Like," because this campaign could soon, as your article put it, be supercharged by Congress. Nick Miroff covers immigration and the Department of Homeland Security as well as the US-Mexico border for The Atlantic. Thank you so much for coming on with us.

Nick Miroff: My pleasure, Brian. Anytime.

 

Copyright © 2025 New York Public Radio. All rights reserved. Visit our website terms of use at www.wnyc.org for further information.

New York Public Radio transcripts are created on a rush deadline, often by contractors. This text may not be in its final form and may be updated or revised in the future. Accuracy and availability may vary. The authoritative record of New York Public Radio’s programming is the audio record.