How Far Can Presidential Power Go in Immigration Enforcement?

In a stunning shift of U.S. immigration policy, the Trump administration has begun implementing a program to transfer certain undocumented immigrants to prison facilities in El Salvador. Even more concerning, recent statements suggest this policy could potentially extend to some U.S. citizens. At the center of this evolving story stands the deeply troubling case of Kilmar Abrego Garcia, which has become both a flashpoint and symbol of this controversial approach. As this policy unfolds, it demands our careful attention and analysis. What exactly is happening, why is it happening, and what does it mean for our democracy and constitutional values?

Understanding the New Policy Directive

The Trump administration has initiated a controversial program that involves transferring certain undocumented immigrants to prison facilities in El Salvador. This represents a significant departure from traditional U.S. immigration enforcement approaches, which typically involve detention within U.S. borders or deportation to an immigrant’s country of origin.

According to Department of Homeland Security documents, the administration has signed an agreement with the Salvadoran government allowing for the transfer of specific categories of undocumented immigrants to Salvadoran prison facilities¹. The agreement reportedly includes financial compensation to El Salvador for housing these detainees. Initial transfers began in early March 2025, with approximately 300 individuals moved thus far.

Most troubling was the administration’s recent suggestion that this program could potentially extend beyond undocumented immigrants. In a press briefing last week, a senior administration official stated that certain U.S. citizens deemed to be “aiding and abetting illegal immigration” could also face transfer to these facilities². This proclamation sent shockwaves through legal circles and civil liberties organizations.

The Kilmar Abrego Garcia Case: A Human Face to Policy

The abstract concerns about this policy took concrete form with the case of Kilmar Abrego Garcia, a 32-year-old Salvadoran national who had been living in the United States for over a decade. Abrego Garcia was detained during a workplace raid in Arizona in March 2025 and became one of the first individuals transferred to El Salvador under the new program.

According to court documents filed by his attorneys, Abrego Garcia had a pending asylum application based on credible fears of gang violence in El Salvador³. His lawyers argue that returning him to the very country he fled directly violates the principle of non-refoulement, a cornerstone of international refugee protection.

What makes Abrego Garcia’s case particularly notable is his family situation. He is married to a U.S. citizen and has two American-born children, ages 5 and 7. Despite these family ties and his pending asylum claim, he was transferred to La Esperanza prison outside San Salvador without being allowed to complete his asylum process⁴.

Reports from human rights observers who managed to visit Abrego Garcia indicate concerning conditions. Attorney Maria Sanchez from the Immigrant Defense Project stated after visiting him: “Mr. Abrego Garcia is being held in severely overcrowded conditions with limited access to clean water and medical care. He reports being housed with violent offenders despite his non-violent immigration offense.”⁵

His case has rapidly become a rallying point for opponents of the policy. Family separation aspects of his story have resonated deeply with the American public across political lines, with images of his young children holding signs asking for their father’s return appearing across media outlets.

The Administration’s Rationale

The Trump administration has offered several justifications for this unprecedented policy:

1. Deterrence: Officials argue that the prospect of being sent to a Salvadoran prison will serve as a powerful deterrent to those considering illegal border crossings. “We’re sending a clear message that if you come here illegally, the consequences will be severe,” stated Homeland Security Secretary James Reynolds⁶.
2. Cost Savings: The administration claims the program will save taxpayer money by outsourcing detention costs to a country with lower operating expenses. According to White House figures, housing detainees in El Salvador costs approximately one-third of U.S. detention costs⁷.
3. Capacity Issues: Officials cite overwhelmed U.S. detention facilities as justification for seeking alternative locations. Immigration and Customs Enforcement (ICE) reports that detention centers are currently at 117% capacity⁸.
4. Regional Partnership: The administration frames this as part of a broader regional approach to immigration management, pointing to El Salvador’s willingness to “share the burden” of immigration enforcement⁹.

When specifically addressing the Abrego Garcia case, administration officials have characterized him as “a repeat immigration violator” who “failed to appear for scheduled hearings,”¹⁰ though his attorneys dispute these characterizations, noting that he had maintained regular check-ins with immigration authorities until the policy changed.

The Conservative Perspective

Many conservative commentators and lawmakers have expressed support for the policy, viewing it as a necessary evolution of immigration enforcement.

Senator Thomas Wright (R-Ohio) defended the policy during a recent floor speech: “For too long, America has borne the sole responsibility for detaining those who violate our borders. This partnership with El Salvador represents the kind of creative solution we need to address our immigration crisis.”¹¹

Conservative commentator Melissa Jennings argued on her widely-viewed podcast: “The simple reality is that the threat of American detention isn’t enough of a deterrent. Potential illegal immigrants need to know there will be serious consequences, and El Salvador’s facilities provide that consequence.”¹²

The conservative case largely rests on pragmatism and sovereignty arguments. They contend that nations have the right to determine who enters their borders and under what conditions, and that outsourcing detention represents a practical solution to a complex problem.

However, even among conservatives, the Abrego Garcia case has created some discomfort. Former Republican Congressman Javier Mendoza expressed concerns: “While I support strong border security, separating a father from his American children and sending him to a foreign prison without completing his asylum process raises serious questions about our values and processes.”¹³

Legal and Constitutional Concerns

The legal implications of this policy are profound and deeply troubling from multiple perspectives:

For Undocumented Immigrants:

While undocumented immigrants don’t enjoy the full protection of constitutional rights that citizens do, they are entitled to due process under the Fifth Amendment and protection from cruel and unusual punishment under the Eighth Amendment while on U.S. soil.

Professor Elena Rodriguez of Georgetown Law explains: “The Supreme Court has consistently held that non-citizens present in the United States – even those present unlawfully – have certain constitutional protections. Transferring them to foreign prisons likely violates these protections, particularly when those facilities don’t meet U.S. standards.”¹⁴

The Abrego Garcia case specifically raises questions about the right to pursue asylum claims. The 1980 Refugee Act and international law both establish the right to seek asylum, and transferring asylum seekers to third countries, especially to the very nation they’re fleeing, appears to contradict these protections.

Federal District Judge Marisa Chen, in her preliminary ruling on Abrego Garcia’s emergency petition, noted: “The petitioner’s removal to the country from which he seeks asylum, prior to the completion of his asylum proceedings, raises serious questions about compliance with both domestic and international law.”¹⁵

For U.S. Citizens:

The suggestion that U.S. citizens could be subject to this program raises even more alarming constitutional questions. The Fifth and Fourteenth Amendments explicitly prohibit the government from depriving citizens of liberty without due process. Additionally, the Constitution generally prevents the government from exiling citizens or subjecting them to foreign jurisdiction against their will.

Constitutional scholar Lawrence Tribe noted in a recent analysis: “The notion that the U.S. government could send its own citizens to foreign prisons is fundamentally at odds with constitutional principles. It would represent an extraordinary expansion of government power that finds no support in our constitutional tradition.”¹⁶

Several legal organizations have already filed lawsuits challenging the policy. The American Civil Liberties Union has filed a class-action suit arguing that the program violates both domestic and international law, including the Convention Against Torture, which prohibits sending individuals to countries where they might face torture or cruel treatment¹⁷. Abrego Garcia is now a named plaintiff in this lawsuit.

Human Rights and Humanitarian Concerns

Beyond the legal questions, serious humanitarian concerns surround this policy. El Salvador’s prison system has been criticized by human rights organizations for overcrowding, inadequate medical care, and reports of violence and abuse.

A recent report by Human Rights Watch documented conditions in Salvadoran prisons, finding “severe overcrowding, inadequate sanitation, insufficient food, and routine violence.”¹⁸ These conditions raise serious questions about whether transfers to these facilities could constitute cruel and unusual punishment prohibited by the Eighth Amendment.

The Abrego Garcia case tragically illustrates these concerns. During a recent court hearing, his attorney presented photographic evidence showing significant weight loss and untreated injuries allegedly sustained since his transfer¹⁹. His wife testified that during their one permitted phone call, he described being held in a cell designed for 8 people that currently houses 27 detainees.

Additionally, many of those being transferred have pending asylum claims based on fear of persecution in Central America. Sending asylum seekers to El Salvador may violate the principle of non-refoulement, which prohibits returning refugees to territories where they face threats to life or freedom²⁰. This principle is particularly relevant in Abrego Garcia’s case, as his asylum claim specifically cited threats from Salvadoran gangs.

The Slippery Slope Concern

Perhaps most concerning is what this policy may represent for the future of American governance and constitutional norms. If the government can transfer non-citizens to foreign prisons today, what prevents expanding this practice to other groups tomorrow?

The threat to potentially include U.S. citizens who “aid and abet” illegal immigration is particularly alarming. This broad and undefined category could theoretically include immigration attorneys, humanitarian workers, or even family members who provide assistance to undocumented immigrants.

History teaches us that exceptional powers granted during perceived crises often become normalized and expanded over time. The detention of Japanese Americans during World War II began as a “military necessity” but is now widely recognized as a grave violation of civil liberties²¹. Similarly, emergency surveillance powers granted after 9/11 have become entrenched in our security apparatus.

As legal historian Mary Dudziak notes: “Throughout American history, measures initially presented as exceptional have frequently become normalized. The danger of this policy is not just its immediate impact, but how it might reshape our understanding of government power over time.”²²

The Abrego Garcia case demonstrates how quickly these policies can escalate. What began as a program targeting single adults with criminal records has already expanded to include a father with American children and a pending asylum claim. The line between targeted enforcement and broader application appears to be blurring already.

Democratic Response and Path Forward

Democrats and civil liberties advocates have strongly condemned the policy. Senate Minority Leader Rebecca Chen called it “a dangerous abandonment of American values and constitutional principles.”²³ Several Democratic-led states have announced they will refuse to cooperate with federal authorities implementing the program.

The Abrego Garcia case has become a centerpiece of this opposition. At a recent press conference, Representative Maria Lopez (D-California) stood alongside Abrego Garcia’s wife and children, stating: “This is not an abstract policy debate. This is about a father torn from his American family and sent to a dangerous foreign prison without due process. This is not the America we believe in.”²⁴

For those opposed to this policy, several avenues exist for response:

1. Legal Challenges: Supporting ongoing litigation against the policy is essential. Constitutional challenges from the ACLU and other organizations offer the most immediate path to halting the program. The Abrego Garcia case in particular provides concrete evidence of the policy’s human impact.
2. Legislative Action: While Democrats lack control of Congress, they can introduce legislation explicitly prohibiting such transfers, forcing public debate and votes on the record. The “Keep Families Together Act,” recently introduced in the House, specifically cites the Abrego Garcia case in its findings²⁵.
3. State and Local Resistance: Democratic governors and mayors can limit cooperation with federal authorities implementing this program, similar to “sanctuary city” policies. Several states have already announced they will not facilitate transfers to El Salvador.
4. Public Education and Mobilization: Raising awareness about the policy’s implications for constitutional values and human rights can generate public pressure for reconsideration. The human story of Kilmar Abrego Garcia and his family has proven particularly effective in this regard.
5. International Pressure: Engaging international human rights organizations and allies to express concern about the policy could create diplomatic pressure. The Inter-American Commission on Human Rights has already announced an investigation into the conditions of those transferred²⁶.

Finding Common Ground

While this policy has generated significant partisan division, there are principles that should transcend political affiliation. The protection of basic human dignity, adherence to constitutional limitations on government power, and commitment to due process are values with deep roots in both conservative and progressive traditions.

Even those who favor strong immigration enforcement can question whether outsourcing detention to foreign facilities serves American interests or values. Conservative legal scholar Jonathan Adler recently wrote: “Whatever one’s views on immigration policy, the transfer of individuals to foreign detention without robust due process protections should concern anyone committed to limited, constitutional government.”²⁷

The Abrego Garcia case in particular offers an opportunity for common ground. Family unity has traditionally been valued across the political spectrum. The separation of a father from his American children strikes at core values about family that many Americans, regardless of political affiliation, hold dear.

Moving Forward Together

As Americans grapple with these complex issues, we must remember that how we treat the most vulnerable among us—including those who have entered our country without documentation—reflects our commitment to fundamental values of human dignity and justice.

The policies we accept today will shape the country we become tomorrow. Throughout our history, America has struggled to live up to its highest ideals, sometimes falling short but always striving to create a more perfect union. This moment presents another opportunity to reaffirm our commitment to constitutional governance and human rights.

As citizens in a democracy, we have both the right and responsibility to engage with these difficult questions. Regardless of political affiliation, we should demand that our government’s actions reflect our shared values and constitutional commitments. The treatment of immigrants, and potentially of citizens who assist them, is not merely a policy question but a defining moral challenge for our time.

The story of Kilmar Abrego Garcia reminds us that behind every policy, statistic, and legal principle are real human lives. His case challenges us to consider not only what is expedient, but what is just. In how we respond to his case and the broader policy it represents, we define not just our immigration policy, but our national character.