‘We feel so sick’: Claims ‘gang members’ deported by the Trump administration without usual legal process are innocent

The Trump administration claimed all the people it deported to a brutal prison overseas were violent gang members. The facts are ... more complicated.

ANALYSIS

I wrote something yesterday about the Trump administration’s deportation of Venezuelan migrants, whom it alleged were gang members, to a prison in El Salvador.

There’s a particular case study, below, that illustrates my point further, but first let’s run through the context again.

These are the deportations that featured in a boastful sizzle reel published by the White House, and in separate photos and footage distributed by El Salvador’s government, which showed the prisoners being manhandled, abused and generally treated like scum on their way into a Central American jail.

pic.twitter.com/5CY3zktsfS

— Rapid Response 47 (@RapidResponse47) March 16, 2025

Yesterday’s piece was mainly about due process, and the rule of law, and how in any fully functioning democratic society those apply to everyone. Even people you don’t like, and even people who have been accused of serious crimes.

The core issue is this: all we have to go on in judging whether or not all the deportees were actually violent gang members is the Trump administration’s word. They have not been given a chance to defend themselves through any legal process, in part because President Trump ejected many of them using the Alien Enemies Act, an archaic law from 1798.

That law was designed to be used during wartime; indeed, it has only been invoked thrice before, during the War of 1812, World War I and World War II. It enables the President to deport nationals of an enemy country without following the usual processes.

How the deported Venezuelans were treated upon their arrival at a prison in El Salvador. Picture: El Salvador’s Presidency Press Office/AFP

Not a fun place to be. Picture: El Salvador’s Presidency Press Office/AFP

In this case, Mr Trump has designated the Venezuelan gang Tren de Aragua a foreign body conducting an “invasion or predatory incursion” on American territory. Thus, in his view, he can treat accused gang members the same way, say, a Nazi spy would have been treated during the Second World War.

So he feels he can deport anyone the government accuses of being involved with the gang without the usual due process.

There are two levels to this argument. First, is that all fine and dandy as a matter of law? We don’t have a resolution to that question yet; it’s before the courts. Second, are all the men who were deported and thrown in a notoriously brutal El Salvadoran prison yesterday actually who the Trump administration claims they are? Are they all gangsters?

Because you don’t want to be sending perfectly innocent people to endure the sort of treatment you can see in the images and footage above, do you.

(I wrote that as a statement, not a question because I assume, dear reader, you have a soul.)

Hmm. Picture: El Salvador’s Presidency Press Office/AFP

Lindsay Toczylowski is president of the Immigrant Defenders Law Centre, which represents migrants in the US legal system. She claims one of her organisation’s clients, who is among those just deported to El Salvador, is not even close to being a gang member.

This is her version of events: the client fled Venezuela last year and sought asylum in the United States. Upon reaching the border, he immediately turned himself in to the authorities to make his asylum claim. He was detained, because agents from ICE (Immigration and Customs Enforcement) thought his tattoos were gang-related.

“I can say without any hint of a doubt, these are not gang tattoos,” Ms Toczylowski told The Bulwark today.

She says the client, who is not being named for his own safety, worked in the arts before he left Venezuela and is a member of the LGBTQ community.

Having been initially held in San Diego, California, he was then transported to a facility in Texas. The government submitted photos of his tattoos – and nothing else – as evidence that he was involved with Tren de Agua. But before his lawyers could dispute that in a legal setting, he was deported.

“ICE did file evidence in his case that was simply pictures of the tattoos, alleging affiliation with a Venezuelan gang,” said Ms Toczylowski.

“Because of that, he remained in custody. We have not actually had a court hearing, yet, where we could refute that information, or where he could move forward with his asylum application. And instead, on the eve of that asylum hearing, our client was disappeared.

“We thought the claim was so baseless that it would not be an issue in terms of his case. However obviously, with the invocation of the Alien Enemies Act, which then removed people with no due process, and could with completely baseless accusations remove someone to a prison in El Salvador, this is just not something that we were expecting to happen without us even being able to refute the allegations in any sort of formal setting.”

Donald Trump. Picture: Pool via AP

The man’s lawyers didn’t immediately know what had happened to him. They perused the footage, from Mr Trump’s White House and from El Salvador, to see if he was visible, but couldn’t find him. It has since been confirmed, by the government, that he was among the cohort taken to El Salvador.

“You can imagine, for immigration lawyers – I mean, we sometimes fear for our clients’ safety in the United States, when they’re in detention centres, particularly when they are vulnerable clients like this,” said Ms Toczylowski.

“Having to watch that video, of people in a facility where we know grave human rights violations take place regularly, and know that I’m searching that video to see if our client is pictured in it, is just a feeling that left us feeling so sick and helpless.

“We are in uncharted waters. It’s extremely unclear what our avenues are for relief at this point. We have never had any situation even slightly similar to this.”

She said her “paramount concern” was for the safety of her client.

“All this is happening because our client, specifically, was not given any due process whatsoever, to be able to refute a baseless allegation made. And that, to me, should send a chill down every US citizen’s spine,” she argued.

“Down the spine of every immigrant in the United States. Because it really shows the brazenness with which the administration is willing to flout the law to move forward.

“Our team has been in contact with people who know our client, and those have been heartbreaking conversations. We are in a position, as lawyers, that we hate to be in, which is we don’t know the answers right now. And we don’t even have the ability to tell friends and family whether our client is safe or where he is. And that is a terrifying position to be in.”

The new arrivals. Picture: El Salvador’s Presidency Press Office/AFP

Maybe you don’t believe a word this woman says. Maybe you think she’s a bleeding heart lefty who has been hoodwinked by her client, who’s actually a gang veteran. Sure, that’s your prerogative. You and I cannot possibly know, any more than we can know, whether America’s government is being honest when it classifies all the deportees as hardened criminals without releasing any supporting evidence whatsoever.

But if what she is saying is true, the United States just sent an innocent LGBTQ Venezuelan, who sought asylum at the border through the proper process, to a notoriously savage prison in a foreign country where where alleged gangsters surround him and is already being treated like the worst of all human filth.

That indignity, that trauma, as punishment for seeking asylum in a country that still calls itself “the land of the free”.

Are you OK with that happening, without any due process? Do you think that is how a civilised country behaves?

And so we return to yesterday’s point. If these people are all violent criminals, detain them, provide the evidence in court, and then deport them in accordance with the law. Nobody with half a brain would oppose that.

Skipping the whole process betrays one of two motives, neither all that defensible: a hunger for speed at the expense of accuracy, or the sort of utter callousness that doesn’t care whether they’re actually criminals or not.

It’s a bit like the death penalty debate, isn’t it? How many innocent, falsely accused people are you willing to kill in the name of deterrence? How many lethally injected inmates, later exonerated, are an acceptable price for the broader principle of making the system scary?

Whichever of those two motives you pick, you are clearly willing to consign innocent people to a horrendous fate because it scratches that little politically charged itch behind your ear. You can square the morality of that with your maker.

Twitter: @SamClench

Originally published as ‘We feel so sick’: Claims ‘gang members’ deported by the Trump administration without usual legal process are innocent