Due Process in Third Country Removals

The State Department’s most recent annual human rights report for Equatorial Guinea identifies major concerns for those residing within that nation. In the past year, credible sources have reported torture, “cruel, inhuman, or degrading treatment or punishment,” and trafficking in persons, including by government officials. 

So it was surprising that last week, Secretary of State Marco Rubio signed a $7.5 million agreement with Equatorial Guinea according to which it will accept noncitizens removed from the United States. But the real twist is that these individuals will have no connection to the African nation.

This process, known as third country removal, subjects individuals to removal who may otherwise have protection from deportation to their country of origin. People who have won their cases and then remained for long periods in the United States, forming deep connections to their communities, are suddenly—and frequently without notice—detained by Immigration and Customs Enforcement (ICE) and put on a plane for removal to a land they have never known.

The details of the deal with Equatorial Guinea remain ill-defined, but it is far from the first of its kind. Indeed, the United States has attempted to seek third country removal agreements with at least 58 independent countries, though the details remain broadly opaque. Confirmation of the agreement with Equatorial Guinea, for example, was uncovered through investigative journalism, not through a press statement from the White House. Others have been produced only during litigation. 

In general, the U.S. government seems largely untroubled by the possibility that noncitizens subject to deportation may be likely to suffer persecution in the country, though it is bound by domestic law to evaluate whether such an outcome might occur. It sent eight men from Cuba, Laos, Mexico, and Vietnam (among other places) to South Sudan, where democratic elections have been delayed for the third time following the end of a civil war there in 2018. Indeed, UN reports indicate pervasive and ongoing extrajudicial killings and violence, warning that the nation may be at risk of returning to war. Administration officials seem unlikely to be swayed by such concerns given that they have attempted to coerce Ukraine into receiving removals from other countries despite it remaining an active warzone. Perhaps the most well known case is that of Kilmar Abrego Garcia, whom the government has tried to remove to Uganda, Eswatini, Ghana, and now, Liberia.

These increasingly expensive, secretive, and outrageous efforts beg the question of whether such maneuvers are permissible under the law. In many cases, they are not.

For all the chaos surrounding novel interpretations of immigration law and its implementation under the second Trump administration, well-established statutes and regulations spell out a clear procedure by which individuals can be removed from the United States. The government’s implementation of third country removals frequently eschews those standards for new versions of its own creation. What began as isolated instances has now morphed into a widespread trend.

The federal government, through its use of third country removals, has methodically introduced increasingly draconian applications of immigration policy that violate due process protections under the U.S. Constitution, as well as the statutory and regulatory framework of this nation’s immigration laws. For individuals who have not received due process protections, a clear solution is available—abiding by the legal processes required, as outlined below. However, even those protections would seem to subject individuals with certain forms of protection from removal to an endless cycle of detention and the ever-present specter of removal to an unknown nation.

The Removal Process

The practice of third country removal is far more widespread than any one case. The term “third country removal” has historically referred to the rare occasion when, due to political, diplomatic, or other circumstances, an individual’s country of origin cannot or will not accept them for removal after a deportation order had been issued by an immigration judge. In general, third country removal is permissible only when removal to one’s country of origin is “impracticable, inadvisable, or impossible.” For example, it has long been a challenge to execute removal orders to Cuba, as well as other places such as Russia, Iran, and Brazil, and even Afghanistan.

However, third country removals might also include individuals who have protection against removal to their country of origin, but whom the federal government is trying to remove elsewhere. Those individuals typically have received relief under withholding of removal or protection under the Convention Against Torture following the issuance of an order of removal by an immigration judge at the conclusion of a hearing. Traditionally, individuals can be removed from the United States only after they have had a chance to respond to the government’s deportation efforts with various claims for relief.

In general, removal proceedings commence with the issuance of a Notice to Appear, by which an individual (the respondent) is required to attend an immigration court hearing and assert any claims that bode in their favor. The Department of Homeland Security will identify a specific country for removal, and then the respondent will articulate whether the charges against them (unlawful entry, certain criminal convictions, etc.) are correct and contest (or admit) that these allegations subject them to removal. If found to be removable, the respondent can seek several forms of relief—these might include cancellation of removal, various waivers, or, frequently, some type of fear-based application.

The most common of these is an asylum claim, which has recently been the subject of intense political scrutiny. In general, asylum claims require individuals to submit proof—witnesses and/or evidence in support of one’s claim—that they have a well-founded fear of persecution if returned to their country of origin. In many circumstances, due to criminal convictions or other bars, an individual is ineligible to apply for asylum. A more frequent issue is that an individual has resided in the United States for more than a year before applying for asylum. Such is the case with Abrego Garcia, who instead successfully claimed a form of relief known as withholding of removal. This application has a higher standard to satisfy, in which an immigration judge must find that the respondent is more likely than not (that is, with a greater than 50 percent chance) to suffer persecution in their home country.

A similar form of relief, known as protection under the Convention Against Torture (CAT), is also available; this requires proving that one is more likely than not to suffer harm, but in this case the harm must fall under the definition of “torture,” which is distinct from that of “persecution.” While CAT derives from an international law compact, it is itself codified in U.S. domestic law and must be considered in an application for relief if requested by the respondent.

While the standard removal process is relatively straightforward, many individuals have been funneled outside of the prescribed system via expedited removal. Historically, this designation has applied only to those apprehended within 100 miles of the border and within two weeks of their entry into the United States, but on its first day in office the Trump administration expanded both the temporal and geographic bounds so that it now applies anywhere within the United States and to anyone who cannot demonstrate that they have been present for more than two years.

Expedited removal immediately places an individual on their heels. They become ineligible for any form of relief except for those that are “fear-based,” including asylum, withholding of removal, and protection under CAT—whereas in standard removal proceedings, the respondent can pursue many other forms of relief. This preliminary process is important because it forms the foundation for how individuals can access their procedural and substantive due process rights after they have received an order of removal but been granted relief under withholding of removal or protection under CAT. 

If an individual is placed in expedited removal, they will receive a credible fear interview (CFI) if they have no prior unlawful entry or order of removal. In a CFI, the respondent must satisfy the “low screening standard” of a “substantial and realistic possibility” of success on a future asylum claim. More likely, because there is typically some bar that prevented them from originally applying for asylum, an individual subject to the possibility of third country removal will receive a reasonable fear interview (RFI) by articulating a fear of return to their country of origin or, in the case of third country removals, to the designated third country.

Importantly, one does not need to satisfy the higher “more likely than not” standard at this point. Rather, they need only prove to the asylum officer administering the interview that there is a “reasonable possibility” of persecution or torture, a higher standard than in a CFI. If an individual “passes” their CFI/RFI, then they will receive a Notice to Appear and have an opportunity for a full evidentiary hearing before an immigration judge. If they receive a “negative” CFI/RFI, they can still petition for review by an immigration judge. In that case, if the judge vacates the CFI/RFI decision, then the expedited removal order is also lifted. The individual will receive a Notice to Appear and be scheduled for a full evidentiary hearing in front of an immigration judge. However, if the CFI/RFI decision is not vacated, then the expedited removal order remains in place, and no review is available. Individuals will be removed quite quickly following such a decision. 

For those who are scheduled for a full evidentiary hearing, the road ahead remains long, but with the possibility of relief and release on the horizon. If an individual is eligible for a form of relief (as described above) and satisfactorily meets the standard for some fear-based relief, then an immigration judge will grant them asylum, withholding of removal, or protection under the Convention Against Torture. They can then be released from detention—if they were being held— and continue with their lives. Everyone who receives relief is able to remain in the United States with a work permit. Some will be placed on a pathway to legal permanent residence and, eventually, citizenship. Such is the case with asylum, and other forms of relief, including cancellation of removal (a separate non-fear-based form of relief).  Under these forms of relief, an individual cannot be removed to a third country. 

Still others may have opportunities to pursue relief that will not put them on a pathway to citizenship. This is the case with withholding of removal and protections under CAT, described above. In those cases, an individual will initially receive an order of removal but then will be afforded relief from that removal due to their fear of return to their country of origin. However, those with withholding of removal or protection under CAT might still find themselves being subjected to removal to a third country. 

The Rise in Third Country Removals

In a 2020 Indiana Law Review article, Sarah Sherman-Stokes of Boston University School of Law highlighted the fact that individuals with removal protections were being sent to third countries with which they had no affiliation, and with limited or no procedural protections. A report from 2017, the first year of the first Trump administration, found that a mere 21 people with withholding of removal had been removed to a third country. In the first 10 months of the second Trump administration, more than 7,500 individuals have been removed from the United States to a nation of which they are not a national or citizen. While this category is larger than just those who have been granted withholding of removal, it includes many others with lawful status, including recipients of Temporary Protected Status, refugees, and asylum-seekers whose claims were in process in immigration courts or asylum offices.^⁠ A letter from Sen. Elizabeth Warren (D-Mass.) and many other members of Congress expressed concern that “these operations appear to be, at least in part, an attempt to evade the statutory, regulatory, and constitutional due process requirements of the U.S. immigration adjudication process[.]”

The crux of this issue is the widespread removal of people who are longtime residents and who have protection, or at least a possibility of obtaining relief from removal, who are summarily expelled from the country. Because the federal government is not tracking this information, the exact number is unknown, though some preliminary research places it at near 1,000 and rising.^⁠ This number includes the more than 200 Venezuelans who were imprisoned in CECOT in El Salvador (along with Abrego Garcia) and the several hundred men, women, and children from Iran, Nepal, Pakistan, China, and Eritrea (among other countries) who were removed to Panama and Costa Rica in February 2025. Many of those individuals had pending asylum claims or were told that “President Trump had ended asylum.” These removals were so troubling that some observers have compared them to the extraordinary renditions of terrorism suspects in the wake of the Sept. 11, 2001, attacks.

Due Process Obligations in Third Country Removals 

To make sense of the United States’s due process obligations when it is seeking to remove an individual to a third country, it is important to understand that it is frequently doing so after an immigration judge has already rendered an opinion. In these cases, the judge’s order prevents deportation of an individual to their country of origin following a full evidentiary hearing. As described above, there are two different forms of this relief known as withholding of removal - one under the refugee definition and another under the Convention Against Torture definition. Both forms of withholding of removal have regulatory due process standards that must be satisfied before an individual can be removed to a third country. The same applies for those who have received a reinstatement of a prior removal order but have subsequently successfully satisfied the standard for withholding of removal.

However, there is also a form of relief known as “deferral” under CAT, which is typically sought only by those with substantial criminal records. This specific form of relief has its own (more permissive) set of standards by which removal to a third country might occur. Under deferral, the United States need only receive “diplomatic assurances” that the receiving country will not torture an individual removed there. If the secretary of state receives these assurances and passes them along to the attorney general, removal to the respective country (including the country from which they originally received relief) can occur without any federal court review. Moreover, regulation governing the removability of those who have received deferral of removal under CAT clearly states that removal to a third country is permissible.

But there is no clear procedure for how to conduct removals to third countries for those who have withholding of removal under the INA or CAT. This lack of clarity has created a vacuum that legal advocates have attempted to fill. For those with withholding of removal, lawyers have argued successfully that the procedure must not run afoul of the due procedure protections of the Fifth Amendment. Exactly how to do so has been the subject of some lawyerly and scholarly debate, but it is clear that the government’s protocol of mere hours of notice with no review by an immigration judge is insufficient.

Sherman-Stokes argues that the government should be required to submit a Motion to Reopen, which would permit a full evidentiary rehearing on whether removal to the new third country would result in persecution or torture. She relies on the fact that the U.S. courts of appeals for the Ninth Circuit and the Seventh Circuit have required sufficient notice to be given to the individual in removal proceedings when a third country is identified during the ongoing proceedings. Indeed, ICE itself acknowledges that the proper protocol for proceeding in cases where an affirmative fear of persecution or torture upon removal to a third country has been asserted would be for ICE attorneys to file a motion to reopen the case so that a full evidentiary hearing on the matter can be held.

In a July 9 memo, Acting Director of Immigration and Customs Enforcement Todd Lyon explained the agency’s revised procedures for third country removals in the wake of a Supreme Court decision. That decision refused to permit a federal district court judge’s due process requirements to be effectuated before a group of nine men could be sent to South Sudan. The memo requires an affirmative statement of fear within 6-24 hours after an individual has been notified of the third country to which they will be removed. Screening for a reasonable fear will then occur shortly thereafter (allegedly within 24 hours), at which U.S. Citizenship and Immigration Services (USCIS)—through an asylum officer—will determine if an individual is “more likely than not” to be persecuted or tortured. It then states that it will refer the individual for an evidentiary hearing only if an affirmative determination is made, contrary to the regulations which permit review of the initial decision by an immigration judge. ICE’s new policy also includes a loophole—finding that its officials may simply designate another country for removal if a successful claim of fear of persecution or torture is asserted.

Secretary of Homeland Security Kristi Noem has made clear in many cases—including that of Abrego Garcia—that she intends for individuals facing third country removal to “never walk the streets of America again.” This predetermination (or at least the narrative of a preordained outcome) suggests that the federal government seeks to expel these individuals one way or another, and it is simply a matter of time before they make that happen. Indeed, if a respondent is able to successfully win relief from removal to one country, there seems to be no end in sight beyond foreign diplomatic relations for where the government might send an individual. Withholding of removal simply prevents deportation to a singular place, as does protection under the Convention Against Torture—it does not apply to every place to which the government might try to deport an individual. (Though there seem to be some indications that Zadvydas v. Davis would potentially limit or restrict ongoing detention during the government’s efforts to effectuate removal elsewhere.)

Sherman-Stokes argues for new regulatory implementations and policy interpretations, safeguarding due process as it already exists. Indeed, individuals are already successfully pursuing alternative remedies in federal district courts, with notable success. Recent federal district court orders have offered a pathway forward for how to satisfy the legal requirements of the administrative process as it exists with regard to other immigration removal proceedings. In Cruz-Medina, Judge Adam Abelson of the District of Maryland enjoined the Department of Homeland Security from removal before providing Jose Cruz-Medina meaningful review of his negative reasonable fear determination in front of an immigration judge, finding that a lack of such review, which would result in Cruz-Medina’s removal to a third country, would violate due process.^⁠ Similarly, Judge Diana Saldaña of the Southern District of Texas enjoined the federal government from removing Israel Sagastizado without first permitting review of his reasonable fear denial by an immigration judge.^⁠ Both judges concluded that “there are no regulations under which USCIS is given the authority to conduct fear-based screening interviews without providing for independent review of that screening.”^⁠ Thus, review would be required even if not explicitly accounted for in the particular regulation under which someone is subject to removal proceedings.

It is clear, therefore, that those subjected to third country removals should have access to the same regime made available to those in expedited removal. This would require notice of a proposed country for removal, an opportunity to articulate fear of removal to the designated country, an RFI conducted within a reasonable amount of time, and review of that RFI decision by an immigration judge. As explained above, either a positive RFI or a positive decision by an immigration judge reviewing the RFI de novo would be sufficient to grant relief. Presently, the process outlined by DHS does not provide for such review, deviating from the regulatory standard.

Even with the implementation of these systemic protections, there seem to be two remaining issues that must be resolved with regard to the substantive due process obligations of the U.S. government. First, according to some attorneys and respondents, the RFI process appears to be cursory at best, and is not adhering to what would be expected of an asylum officer in conducting a full CFI or RFI (for which a transcript is made available and for which a respondent’s attorney can be present). Moreover, officers are using the higher “more likely than not” standard in place of the “reasonable possibility” standard.

Second, in many cases, the removals happen so quickly that there is no significant opportunity to intervene. Indeed, in the case of a Gambian man removed to Ghana (and quickly thereafter sent to Gambia), a federal judge found that she had no jurisdiction despite her ardent condemnation of the government’s seemingly unlawful maneuvers. The chaotic nature of these removals seems to cut in the government’s favor as federal judges find themselves unable to intervene. This is the case even when there are clear violations of regulation, such as when the government claims that it is unable to send someone to their home country despite the country of origin never being contacted. Assessments of a third country for removal must include a serious inquiry to confirm whether this is a risk of return of the individual to the place from which they had protection in the United States, a process known as chain refoulement. Such countries identified as possible third countries of removal should be required to abide by these U.S. determinations and should be prohibited from receiving additional deportees if they violate those understandings.

In order to fully satisfy the due process requirements, immigration officials and immigration judges must consider these two important matters to be inextricable from the protections of the Constitution. Moreover, with the Board of Immigration Appeals considering a similar matter in a separate case, they, too, can apply this due process standard. The administrative process should be clear and accessible through the immigration court system, and it should not require extraordinary lawyering in the federal court system.

Third, and finally, it is not clear that review by an immigration judge is meaningful, especially in these high-profile cases. In fact, the administration has now taken to calling them “deportation judges.” Immigration judges are supposed to be “neutral arbiters” who “act independently” in their review, but it seems quite clear now that immigration judges and the Board of Immigration Appeals, which reviews decisions by immigration judges, are under immense pressure from the Department of Justice. In turn, the current attorney general, who oversees the Justice Department, is explicitly taking direction from the president. There is no neutrality with the ever-present possibility of being fired hanging over one’s head, and there is no expectation of neutrality when the Board of Immigration Appeals and attorney general can revise immigration law on a whim. Indeed, this is the reason why many advocates have called for the creation of an independent immigration court system.

The Path Forward

What might be done more broadly? First, adhering to the standard above would help to provide access to the due process that individuals in removal proceedings should be guaranteed as a status quo. A determination in the Abrego Garcia case would ring the bell loudly in favor of what is required of immigration officials before they can remove an individual to a third country. Second, it would help individuals who simply do not have access to the federal court system. Those who are unable to litigate their cases via habeas corpus petitions would now have notice (and case law to reference) in articulating their claims in the administrative process. Certainly, immigration judges and the Justice Department would have to take notice, since they are the active litigants in this case. Third, and perhaps most boldly, the Trump administration could affirmatively recognize its violation of law and return those it has removed without due process.

This conclusion may be dissatisfying in that it still subjects respondents to a system that is significantly stacked against them—immigration officers may violate their obligations for fear of reprisal from senior officials; immigration judges, fearful of their own firing, may summarily affirm all CFI/RFI denials; and senior officials within the Trump administration may continue to evade their obligations under the U.S. Constitution in order to gain political favor from the president.

The possibility of meaningful review by an independent and neutral arbiter must be maintained even if it feels like an artifice in the present moment. Staking this claim now will work to anchor against continued violations and slow down removals—subjecting the Department of Homeland Security to additional standards means they are more likely to be pulled into federal court where the law continues to crystalize in favor of due process obligations. Third country removals will become increasingly untenable because they so clearly violate U.S. statutes, regulations, and the Constitution. The benefit of these removals is not that they are efficient for the government—in fact, they are rather expensive and relatively infrequently used (in proportion to other forms of removal)—but that they can be used summarily and without review.

To respond to these concerns in the meantime, attorneys can continue to seek intervention by the federal courts. First, when review of negative Reasonable Fear Interviews by immigration judges is unsuccessful, respondents can seek review from the circuit court of appeals, which holds geographic jurisdiction over the immigration court where the initial hearing took place. In an additional challenge, separate motions to stay removal must be filed and granted lest the respondent be removed while the appeal proceeds. Moreover, these appeals are frequently limited in significant procedural and substantive ways—looking only for legal defects as opposed to alternative factual findings—and therefore are not a complete remedy.

Another option would be to continue to pursue federal district court litigation through individualized habeas petitions. While piecemeal, so far these efforts are being met by dynamic and meaningful responses within the federal judiciary, which has granted relief in several important cases. Indeed, as J. Michael Luttig, former judge on the U.S. Court of Appeals for the Fourth Circuit, has said, “Today, the last bastion of truth ... in America is the federal courts.” Finally, the Supreme Court has not foreclosed class-action litigation, and this issue may be ripe for just such an effort.

There also remains one boundless possibility—the Department of Homeland Security could engage in good-faith enforcement of the law. While Stephen Miller torments his inferiors with demands to participate in increasingly outlandish behavior in the pursuit of bombastic deportation numbers, there are inklings that at least some actors in the administration feel constrained by the rule of law. Indeed, despite its contorted messaging for why it did so, the government returned Abrego Garcia to the United States where he may yet still find relief and repose with his family in Maryland.

A more recent indication is the case of Alejandro Juarez, whom the Department of Homeland Security admits to having deported by error to Mexico. Juarez resided in the United States for 22 years and is potentially able to adjust through a process known as parole-in-place through a petition filed by his oldest son, who is an active member of the U.S. military. In discovering that Juarez had been removed without first participating in the administrative procedure guaranteed to him, department spokesperson Tricia McLaughlin contacted his attorneys to arrange his return to the U.S. so that he may avail himself of his due process rights. In another example, Reza Zavvar, a 52-year-old from Iran who also had withholding of removal, was released in mid-September from immigration custody, where he had been held for 77 days. This followed a prolonged and ultimately unsuccessful effort by the government to remove him to Romania or Australia.

In each of these cases, exceptional lawyering has resulted in positive outcomes. However, because immigrants in detention are very unlikely to have counsel, they must rely on the outcome of high-profile cases like that of Abrego Garcia, where federal district judges can intervene to make clear the obligations of the government under federal law and the U.S. Constitution.

The ever-present specter of banishment to an unknown locale is often enough to silence unrepresented individuals, separating them from their rights. This moment is an exceedingly important one for advocates and their clients, communities being subjected to unfettered immigration enforcement, and the families of those who are being swiftly and unexpectedly disappeared.