Running Afoul of Non-Refoulement: The Trump Administration’s Removals to El Salvador and the Convention Against Torture

Written by Ximena Itan Dehui Reyes Torres

Introduction

On March 15, 2025, President Trump issued a proclamation invoking the Alien Enemies Act¹ to facilitate the removal of “[a]lien enemies” to “any such location . . . consistent with applicable law.”² Pursuant to the proclamation, more than 230 noncitizens were removed to El Salvador and immediately transferred to the Centro de Confinamiento del Terrorismo (“CECOT”)³ despite a U.S. District Court order barring many of the deportations.⁴ The Trump administration’s removal of noncitizens to El Salvador raises concerns about compliance with domestically ratified international obligations under the United Nations Convention Against Torture and Other Cruel, Inhumane or Degrading Treatment or Punishment (“UNCAT” or the “Convention”).⁵

Background

In response to widespread documentation of torture practices throughout the world, especially the use of torture in Chile under the Pinochet regime, the U.N. General Assembly unanimously adopted UNCAT on December 10, 1984.⁶ As the first worldwide convention addressing torture, UNCAT requires that Member States criminalize torture within their territories, cooperate with each other to prosecute and extradite perpetrators, and prohibits the “refouler” or expulsion of a person to “another state where there are substantial grounds for believing the person would be in danger of being subjected to torture.”⁷

The U.S. signed the Convention on April 18, 1988, and the Senate ratified it with multiple reservations in 1990.⁸ In 1998, Congress codified domestic ratification of the Convention in the Foreign Affairs Reform and Restructuring Act (“FARRA”)⁹ which delegated implementation of regulations concerning U.S. obligations under the Convention to federal agencies.¹⁰ Accordingly, the U.S. maintains a legal obligation “not [to] expel, extradite, or otherwise effect the involuntary return of any person to a country in which there are substantial grounds for believing the person would be in danger of being subjected to torture, regardless of whether the person is physically present in the United States.”¹¹ The Immigration Nationality Act (“INA”)¹² incorporates these obligations in the Code of Federal Regulations¹³ which assign “substantial grounds for believing a person will be subjected to torture” when an applicant for asylum under the Convention proves they are “more likely than not” to be tortured if sent to the proposed country of removal.¹⁴

Violations of Non-Refoulement

Numerous human rights and civil society organizations have documented widespread use of torture and ill treatment by officials in El Salvador.¹⁵ Since 2009, the U.N. Committee Against Torture expressed concerns over reports of the widespread use of torture on children by the Salvadoran National Civil Police and prison personnel.¹⁶ Furthermore, in its Country Reports on Human Rights Practices, the U.S. State Department detailed numerous complaints of torture and cruel treatment used by Salvadoran officials.¹⁷ Considering the proliferation of past reports on the use of torture in El Salvador’s prisons, the Trump administration had substantial grounds to believe that noncitizens facing removal to El Salvador were more likely than not to be subjected to torture and inhuman treatment in CECOT. Therefore, removal of noncitizens to El Salvador likely violated U.S. non-refoulement obligations under UNCAT and FARRA.

Although Salvadoran officials routinely deny reports of torture in CECOT, in a social media post made on March 16, 2025, President Bukele detailed the financial arrangement between the American and the Salvadoran governments to incarcerate U.S. detainees in CECOT.¹⁸ The three-minute video accompanying Bukele’s post showed deportees in chains dragged by armed members of the Salvadoran Directorate General of Prisons, stripped of their clothing, forcefully shaved, and thrown into metal cells in CECOT.¹⁹ This indicates that the Trump administration not only knew of the reports of torture in El Salvador’s prions, but approved and coordinated the transfer of noncitizens to CECOT. Evidently, human rights organizations and Special Rapporteurs appointed by the U.N. Human Rights Council denounced the deportations to El Salvador, citing numerous reports of torture, enforced disappearances, arbitrary detentions, and other human rights abuses.²⁰ Additionally, in a recently filed lawsuit, Kilmar Ábrego García, a Salvadoran national taken to CECOT,²¹ claimed he was tortured during his two and a half month unlawful imprisonment.²² In 2019, Ábrego García was granted withholding of removal under UNCAT after establishing substantial grounds to believe he would be tortured if he returned to El Salvador.²³ Other detainees such as Andry Hernandez, a Venezuelan national recently released from CECOT as part of a prisoner exchange, also endured beatings, solitary confinement, and food deprivation.²⁴ The illegal refouler of these men to El Salvador and the torture they endured constitute serious breaches of U.S. obligations with respect to UNCAT.

Conclusion

U.S. courts hearing UNCAT claims like those in Ábrego García’s lawsuit should address violations of non-refoulement by U.S. officials and enforce UNCAT imposed obligations under FARRA and the INA by granting relief either through withholding of removal or by facilitating the return of wrongfully removed individuals to the United States.²⁵ Member States, especially those whose citizens were illegally refouled to El Salvador should also exercise their universal jurisdiction to prosecute perpetrators in domestic tribunals and hold Salvadoran officials accountable for breaches of their international and domestic obligations under UNCAT.

Posted in Blog

Written by Ximena Itan Dehui Reyes Torres

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