The New Transparency Rules and the El Salvador Detention Agreement

[Nevilledog]

https://www.lawfaremedia.org/article/the-new-transparency-rules-and-the-el-salvador-detention-agreement

Congress in December 2022 enacted a sweeping new transparency statute for international agreements made by the executive branch. (We previously discussed the statute here and here.) This law imposes on the executive branch a duty to disclose to Congress and to publish certain binding and nonbinding executive agreements within specified time periods. This post explains the potential relevance of this law to the dispute over the mistaken deportation of Kilmar Abrego Garcia.

The Trump administration has stated in litigation that Abrego Garcia, an El Salvadoran national, was accidentally included in a group of over 200 migrants transferred to El Salvador, where they are being held in a large prison known as the Terrorism Confinement Center. Abrego Garcia should not have been removed because an immigration judge years earlier had granted him a withholding of removal to El Salvador due to a danger of persecution, and the government never appealed that decision.

Lawyers for Abrego Garcia have been seeking to have him returned to the United States, and the Supreme Court has said that the government is obligated to take steps to “facilitate” his release from El Salvador’s custody. To date, however, the executive branch has taken no apparent steps to comply with the directive, contending that Abrego Garcia is now subject to El Salvador’s sovereignty and is out of U.S. control.

The 2022 statute could play a role in the dispute because it might be a mechanism to force disclosure of any U.S.-El Salvador agreements connected to the detention facility and its operation in El Salvador. In exchange for housing the immigrants for a year, the administration has reportedly paid El Salvador $6 million. There is almost certainly some sort of written agreement between the two countries memorializing this arrangement, but the details of the agreement have not been disclosed by the administration. It is possible that these details will be disclosed in the Abrego Garcia litigation (the judge has allowed Abrego Garcia’s lawyers to engage in discovery), but that is far from certain.

*snip*

[Ms. Toad]

1. Excellent! n/t

[Solly Mack]

2. K&R

[Deuxcents]

3. We have every right to know what this agreement is..we're paying for this