Patricia hasn’t heard from her son Rafael since the U.S. deported him to El Salvador in the spring of last year.
The Salvadoran woman, who asked not to be fully identified out of fear of retribution in her own asylum case, said that as soon as Rafael’s deportation flight landed in El Salvador, officials there imprisoned him. The 24-year-old never had a hearing or the ability to speak with an attorney, Patricia said, and he had committed no crime.
“That is my sorrow, and it will continue to be,” Patricia said in Spanish. “He shouldn’t have been sent back.”
Rafael is one of many Salvadorans who have gone straight from U.S. Immigration and Customs Enforcement custody to the notorious prisons in El Salvador that hold people indefinitely under a “state of exception” that has suspended civil rights in the country’s judicial system. Under that rule, anyone suspected of being a gang member — which requires as little evidence as having any kind of tattoo, wearing clothing that gang members like to wear or someone claiming that a person is a gang member — can be held in prison indefinitely.
Many Salvadorans still in ICE custody fear they will meet the same fate if the agency deports them.
Human rights observers said the conditions in Salvadoran prisons amount to torture. Though the United States has a law that forbids officials to return people to places where they are likely to be tortured, many deportees still end up in Salvadoran custody.
“It’s my worst fear because I think I will be a victim or be tortured by the Salvadoran government. Psychologically, mentally, it’s depressing me a lot,” Elenilson Armando Coto Delgado said in Spanish, his voice growing quiet over the phone from the Otay Mesa Detention Center in San Diego. “I can’t even explain it. It’s a pain that I feel. I have so much fear that they’re going to torture me.”
ICE did not respond to a request for comment.
Coto Delgado and several other Salvadoran men held in one of the housing units at Otay Mesa called Capital & Main together to discuss the fear they felt about being deported.
Passing the phone back and forth among them, some said they had committed crimes in the U.S. and served their sentences before being transferred to ICE custody. All said they have tattoos. And while each said he had committed no crime in El Salvador, they believe that they will end up incarcerated there, too, the moment they step from the deportation plane and set foot on Salvadoran soil.
Coto Delgado quickly named four men who had been in the same housing unit with the group until they were deported, including Rafael. All of the men are now imprisoned in El Salvador, he said.
Under Salvadoran President Nayib Bukele, officials have imprisoned roughly 80,000 people under the state of exception, according to the Washington Office on Latin America, a human rights advocacy and research group.
Coto Delgado and the other men who spoke to Capital & Main wondered aloud why the U.S. would condemn them to indefinite incarceration in El Salvador to endure conditions that, by some accounts, have resulted in the deaths of around 200 people. They each said that they have already served their sentences for any crimes committed in the U.S.
Targeted for Tattoos
Patricia, who lives in Illinois, said that Salvadoran officials imprisoned her son because of his tattoos, even though they’re not gang tattoos, and because as a teen he was once caught with marijuana and was ordered to do community service work.
She said she fled El Salvador when Rafael was a teenager. A local gang wanted Rafael to join, but she said he declined. The gang threatened Patricia and told her that if she didn’t leave the country, she would be killed, she said.
Several years later, Rafael followed after he’d finished his community service, she said, because the gang’s pressure on him grew more extreme.
“They hit him,” Patricia said. “They tortured him many times, so he decided to come here, but unfortunately, everything turned out badly.”
He came to Tijuana, Mexico, and waited for an appointment through an official Customs and Border Protection phone app called CBP One to request protection at the San Ysidro Port of Entry, she said. Once he came onto U.S. soil, he never left custody.
He waited at Otay Mesa Detention Center for a judge to hear his asylum request. When his request was denied, Rafael ended up on a plane to El Salvador. Patricia said she still doesn’t understand why his request was denied. She said she wrote a letter to the judge as evidence for her son’s case since she couldn’t be there in person.
“The laws here are not for everyone,” Patricia said.
Imprisoned and Tortured
In 1988, the United States signed onto the United Nations Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, known as the Convention Against Torture, and agreed among other things not to return people to countries where they are likely to be tortured.
Though asylum has become a buzzword in U.S. political debate, U.S. immigration law actually offers three different kinds of protection.
Asylum offers the most benefits, including a green card and a path to citizenship, but it is discretionary. That means the United States can decide whether to grant it based on factors including whether a judge believes an asylum seeker is of “good moral character.”
Among the two lesser known ways to win refuge in the U.S. is protection under the Convention Against Torture. While people seeking protection have to show, according to U.S. immigration law, that “more likely than not” — essentially, more than a 50% chance — that they will be tortured if returned, the protection is not discretionary. If someone qualifies, the judge has to grant it.
For asylum seekers with criminal histories, qualifying under this law is one of the only ways to stay in the U.S.
Elizabeth G. Kennedy, a social scientist and researcher, documents human rights conditions in El Salvador and sometimes serves as an expert witness in immigration cases to testify about those conditions.
“Cases I’m testifying in are being granted,” she said. “If you have a lawyer and the expert, these are winning cases.”
She said people held in detention centers who have been unable to find attorneys have a much harder time proving to an immigration judge the extent of the current human rights violations in Salvadoran prisons. She said anyone with tattoos or any kind of criminal history in either country is likely to end up incarcerated, as are people from low-income neighborhoods.
“They definitely would be very much at risk of immediate detention and being indefinitely detained,” Kennedy said. “There’s no access to legal representation. There are no individual trials. The conditions in the prisons are really bad, even more inhumane than in the past.”
Salvadoran officials did not respond to a request for comment.
Kennedy said that prisoners don’t get medical care and that guards often torture them. Families have to pay for their loved ones to have a survivable amount of food to eat while locked up, she said.
“I’ve heard of multiple people who went into prison and have now lost 50 pounds and are near death because of starvation,” she said.
A recent news report from Salvadoran outlet El Faro details the case of an innocent man in his early 30s who, after spending years in prison under the state of exception, was returned to his family barely alive. He’d lost so much weight that the journalist described him as a “collection of bones.” The man died less than two weeks later, the story said.
The Inter-American Commission on Human Rights published a report in September that documented human rights abuses on the part of Salvadoran President Bukele’s government. It said that most people swept up in the state of exception were held in pretrial detention, that law enforcement used excessive force and that children were imprisoned as adults.
Already Tortured
Coto Delgado said that he already knows what it feels like to be tortured by Salvadoran officials.
He said he first came to the United States as a child fleeing the war in El Salvador in the late 1980s. He grew up in the Los Angeles area and made a career in construction.
In 2005, he said he moved to New Orleans to help rebuild after Hurricane Katrina. While there, he said, someone robbed him. When that person came back to rob him a second time, he said he fought with the person, who later called the police. Coto Delgado was charged with second-degree battery.
“I pleaded guilty,” he said. “It was the worst mistake that I made.”
He said he didn’t realize that plea could affect his ability to stay in the U.S.
ICE deported him to El Salvador in 2013. While he was there, police mistook him for a gang member because of the tattoos on his arms and stomach, and officers tortured him, he said.
“I was unconscious. They went to throw me in a river far from where they caught me,” he said. “They thought I was dead. They wanted it to look like I was killed by a gang member.”
A woman found his body by the river and helped him recover, he said. He fled again as soon as he could.
He was kidnapped and tortured in Mexico, he said. In 2019, he asked for asylum at the San Ysidro Port of Entry and ended up at Otay Mesa Detention Center. He initially lost his case, and an attorney is fighting in the 9th U.S. Circuit Court of Appeals to help him reopen it now based on new evidence about country conditions under the state of exception. He was recently transferred to a facility in the state of Washington.
Meanwhile, his mother recently visited family in El Salvador. She spent a couple of weeks there. A few days after she came back to the U.S., police came to her family’s home in El Salvador looking for her and her son, she said.
Even though she already has a green card, she asked not to be named out of fear of what’s happening in her home country.
“They came to look for me, and I’ve never done anything,” she said in Spanish. “I don’t owe anything, and I’ve never done anything wrong.”
She said she feels she can no longer go back and visit her family even though her father is sick and in his 80s.
“What I’m looking for is help for my son,” she said. “It’s dreadful what they’re doing there.”
While she was in El Salvador, she said, police came for a boy after a woman lied and said he’d mistreated her. Police charged him as a gang member and sent him to prison, she said.
