On January 26, Jose Luis was on his way to work in southern Texas when his life changed instantly.

He was suddenly surrounded by dark SUVs when he stopped at a gas station. Within moments, Immigration and Customs Enforcement (ICE) agents had him in handcuffs, and he was taken away.

The 33-year-old father of five—who had lived in the US since arriving from Mexico in 2010 as a teenager—disappeared into the machinery of President Donald Trump’s revived immigration crackdown.

His case is far from isolated. Under Trump’s expanded deportation policies, ICE has nearly doubled its daily arrest rate, with more than 10,000 migrants already deported via military flights, marketed as a deterrent.

Even more alarming is Trump’s plan to revive Guantánamo Bay as a detention centre for undocumented migrants—a facility notorious for its history of extrajudicial detention.

This move echoes a dark chapter in US history, where legal loopholes were exploited to suspend constitutional protections in the name of national security. It is part of a broader strategy, one that includes retroactive restrictions on birthright citizenship and outsourcing migrant detention to El Salvador that challenges established constitutional norms and international legal obligations.

A retroactive assault on citizenship

Among Trump’s most contentious policies is an executive order retroactively stripping birthright citizenship from children born to undocumented immigrants or temporary visa holders (H1B, F1) after February 19.

Although a federal judge in Seattle has temporarily stayed the order, its legal and constitutional ramifications remain profound.

Critics argue this policy blatantly violates the seminal precedent set in United States v. Wong Kim Ark (1898), where the Supreme Court unequivocally held that the Fourteenth Amendment guarantees citizenship to all persons on US soil, except those born to foreign diplomats or occupying forces.

This interpretation has underpinned American citizenship law for over 125 years, forming the cornerstone of the constitutional commitment to equal protection and due process.

By attempting to revoke citizenship retroactively, the administration is not only undermining this foundational precedent but also creating a dangerous legal uncertainty about the status of millions of individuals.

Beyond citizenship, Trump’s immigration agenda has systematically dismantled humanitarian parole programmes, further criminalising asylum seekers rather than protecting them. These actions contravene domestic legal norms and international obligations under the Refugee Convention, prohibiting analysing individuals seeking refuge.

Guantanamo Bay: Resurrecting a legal black hole

Guantanamo Bay has been a juridical anomaly – a facility where detainees are held outside both US law and the international human rights framework. Established initially to detain terrorism suspects post-9/11, its indefinite detention practices were widely condemned for violating due process rights. The Bush administration argued that by situating detainees offshore, it could evade constitutional safeguards such as habeas corpus.

Now, Trump’s proposed use of Guantanamo for immigration detainees marks a chilling return to these legal excesses. The facility is being repurposed to hold thousands of undocumented migrants, effectively creating a detention system where due process protections are suspended, and human dignity is subordinated to political expediency.

Under international law, indefinite detention without trial violates human rights treaties such as the United Nations Convention Against Torture (CAT) and Article 9 of the International Covenant on Civil and Political Rights (ICCPR), which categorically condemn such practices.

By resorting to Guantanamo, the US is effectively reintroducing a regime where due process under Article 14 of ICCPR is suspended and human dignity is trampled.

Outsourcing detention: El Salvador’s controversial proposal

As part of its immigration crackdown, the Trump administration is exploring a controversial deal with El Salvador President Nayib Bukele to use his country’s notorious mega-prison, known as the Terrorism Confinement Center (CECOT), for US deportees, including both criminals and immigrants.

This prison, located on the outskirts of Tecoluca and designed to hold up to 40,000 individuals, is already infamous for being overcrowded and its rampant human rights abuses. Some are hailing Bukele's offer as a practical solution to the US immigration crisis. Still, it raises serious questions about the ethics, legality, and long-term consequences of outsourcing detention.

Under the principle of non-refoulement—an established tenet of international refugee law that prohibits sending individuals to countries where they risk torture or inhumane treatment—the US would be in direct violation by transferring detainees to a system known for its brutality.

The Eighth Amendment of the US Constitution also prohibits cruel and unusual punishment, a safeguard that would be fundamentally undermined if individuals were sent to detention centres with well-documented abuses.

Moreover, by transferring detainees outside US jurisdiction, the administration is engaging in legal outsourcing, evading accountability while placing the burden of detention on foreign governments.

The ICCPR, to which both the US and El Salvador are signatories, obliges states to uphold du- process rights. Both governments effectively endorse a system where human rights can be subverted for political expediency by permitting such facilities.

The erosion of American ideals

Trump’s immigration policies strike at the heart of American constitutionalism and legal tradition. The US has long prided itself on inalienable rights, due process, and legal fairness rooted in Lockean liberalism and constitutional jurisprudence.

John Rawls’ “veil of ignorance” reminds us that a just society must uphold fairness irrespective of an individual’s birthplace or legal status.

Similarly, the deontological ethics of Immanuel Kant assert that human dignity must never be compromised for political ends. Yet, the current trajectory of US immigration policy erodes these ideals, treating migrants as disposable rather than right-bearing individuals.

The combination of Guantanamo’s revival, the retroactive assault on birthright citizenship, and the outsourcing of migrant detention represent not just an administrative policy shift but a fundamental legal crisis.

Reasserting judicial and legal oversight

At this pivotal moment, the US judiciary must serve as the ultimate safeguard against these overreaches. Courts have historically acted as a check on executive overreach, and they must do so now—whether through judicial review, habeas corpus challenges, or constitutional litigation.

This is not merely about immigration policy but a test of America's constitutional integrity. As a common law nation, the US must reaffirm that constitutional rights are inviolable and that no executive order or policy manoeuvre can override fundamental legal protections.

As Hannah Arendt warned, “The most radical evil is not what is being done, but that we have grown accustomed to it.”

Today, the US faces a stark choice: either normalise legal subversions for political expediency or reaffirm its commitment to the rule of law. The outcome will not just define immigration policy—it will shape the very foundations of American democracy.