Earlier this month, the Trump Administration deported eight migrants to South Sudan, a country beset by conflict and extreme hunger. Only one of the men, who have all been convicted of violent crimes, is from South Sudan, and their families have reportedly not heard from them since their arrival in that country. The Supreme Court allowed their deportations to proceed, which has raised concerns from human-rights organizations that the Administration would begin deporting more people to third countries where they could be at risk of violence and torture. And indeed, last week, U.S. Immigration and Customs Enforcement released internal guidance explaining that when a foreign country has offered “credible diplomatic assurances” about keeping detainees from being tortured, deportations can move forward.
I recently spoke by phone with Cristina Rodríguez, a professor at Yale Law School who specializes in immigration law and the separation of powers. During our conversation, which has been edited for length and clarity, we discussed why these latest deportations are uniquely concerning, whether the Supreme Court is likely to step in once again and make a broader ruling on third-country removals, and how the courts should deal with an Administration that can’t be trusted.
As of now, what is legally stopping the Trump Administration from picking up non-citizens off the street, and sending them to any country that they want to, including countries that they’re not from?
The first thing that’s stopping them from doing that is the requirement that before someone is ordered removed, they get due process. I don’t think anything that the Supreme Court, or any other court, for that matter, has done has eliminated that basic protection, though the devil is certainly in the details with respect to what amounts to due process.
The question is whether the statute that governs third-country removals is still playing any kind of role in the way the Administration goes about determining whether to send people to a third country. That statute makes third-country removals a matter of last resort. There are other efforts that the Administration is supposed to make before removing someone to a country that they don’t have citizenship in, or haven’t lived in before, or have not designated as a place to which they’d like to be removed.
There’s so little that we know about what the Administration has negotiated with these countries that are third-country-removal locations that it’s hard to say whether they’re attempting to abide by the limits placed in the statute, or whether they’re circumventing them and just deciding to do whatever is easiest, and remove people to these third-country locations.
O.K., a two-part question then: What is the statute, and what should they be doing according to it? And secondly, what does “due process” mean in this context? Not what does it mean to the Trump Administration but what should it mean in this context?
The statute is 8 U.S.C., Section 1231 (b). It’s a provision of the Immigration and Nationality Act that lists the different countries that qualify as third countries to which an Administration can remove someone. So there is no prohibition on sending people to a third country if they can’t be sent back to their countries of origin. The statute starts out by listing the places to which the government could remove someone, which include the country from which the alien was admitted to the United States, the country in which they last resided, the country where they were born. And then it says that if removing someone to any of those places is “impracticable, inadvisable, or impossible,” then the government can remove someone to another country that will accept them.
That has been done in the past, but it is rare that the government will remove someone to a third country to which the person has no connection whatsoever. Not to mention that it’s unheard of to remove someone to a prison in a foreign country to which they have no connection, or to a war zone. So that’s what Congress contemplated on the theory that someone should be removed to a place to which they have a connection, but removal has to be effectuated at some point if those countries will not accept the non-citizen.
In this context, what “due process of law” ought to mean is that before someone is ordered removed to a place to which they have no connection, they ought to have notice of that fact, and then the opportunity to make a claim that such removal would violate rights that they hold under the immigration laws. Those rights include the right not to be sent to a place where there’s a possibility or likelihood that they will be tortured or subject to cruel, inhuman, or degrading treatment, and not to be removed to a country where they might be subject to persecution, which legally is a different concept.
So the second one would be sending a Uyghur to China, say, even if they weren’t from China?
Exactly.
The Administration seems to be claiming that they are going to get assurances from these third countries that these prisoners will be treated well. Clearly, there’s absolutely no reason to trust anything they say about this, but I assume this might be the type of thing that courts—and especially this Supreme Court—would give deference to.
The first thing I would say is that we should not talk about this in terms of transfers of prisoners. As far as I know, some of the people who have been removed or who the government seeks to remove to third countries are people who have served their sentences in the United States, and are therefore eligible for removal, and probably ought to be removed, but they are no longer prisoners in the conventional sense. The idea of removing someone to a prison for further punishment is very concerning.
Sorry, yes, that’s a good point. I didn’t mean to use language that had any sort of valence to it. I just meant anyone that they were removing.
Right. The reason, though, I think it is important to emphasize is because of things like the removals under the Alien Enemies Act to a Salvadoran prison. It wasn’t just a removal to El Salvador; it was people who had not been convicted of anything sent to a prison under an agreement by the United States.
As for South Sudan, some media coverage has said that officials in South Sudan have custody of the people who were removed there. Do we know if they’re in prison? Do we know if they’re living at large with some kind of status to work and move about? We don’t know.
But you’re absolutely right that there are serious limits to what courts will be able to do when the government decides to move people to a third country, because they will not want to peer behind the negotiations that the government has had with other countries. They certainly might wish to scrutinize them because this Administration has made a number of misrepresentations before courts, and does not seem to want to justify itself.
If the countries to which people are being removed are countries that the United States itself warns are unsafe, that might warrant scrutiny as well. If there is a basic claim that the Administration has negotiated diplomatically that there will be fair treatment, or that the countries are willing to take them, I’m not sure that the courts can stop them, short of requiring the procedures of notice and opportunity to be heard, to make claims about fear of torture, and the like.