Third-Country Deportations: Legal and Ethical Problems

Executive Summary The UN Refugee Convention and Protocol, as well as the UN Convention Against Torture, impose upon states a duty to prevent refoulement . Yet, migrant destination states increasingly attempt to triangulate and circumvent this obligation by removing asylum seekers to third countries to which they have no prior connection. Third-country deportation—often with no due process—has been a favorite tactic of the second Trump administration in particular, in contravention of longstanding legal precedents. This paper explores some of the unique legal and ethical problems which arise in cases of third-country deportation, including disruption of migrants’ reasonable expectations; ignoring the historical responsibilities that arise out of particular bilateral or dyadic migration systems; derivatization of migrants in which cruelty is styled as deterrence; and, most troublingly, the specter of triangular refoulement (a risk which already has in fact been realized in numerous Trump-era third-country deportations). To the extent that a third-country deportation regime theoretically could be constructed without falling afoul of international and domestic law, it is clear no such regime has yet emerged in practice. Policy Recommendations The US Department of Homeland Security (DHS) should cease pursuing third-country deportations, except in very rare cases where second-country deportation is impossible and the government can show it has compelling reasons to pursue deportation to a credibly rights-respecting third country. In such cases, DHS must provide noncitizens with pre-removal notice and a meaningful opportunity to claim any relevant relief as to a particular proposed third country of deportation in an evidentiary hearing before an Immigration Judge (IJ).