US Supreme Court Clears Way for Deporting Criminal Immigrants to Third Countries

The U.S. Supreme Court has effectively paved the way for the Trump administration's policy of sending criminal immigrants to third countries instead of their home countries. The Court stayed a lower-court ruling that had blocked the policy until the case is fully heard on the merits. 'Third-country removal' is a measure that sends immigrants to another country when they cannot be returned to their homeland or when their home country refuses to take them back, with its legal basis in the Immigration Act (IIRIRA) enacted in 1996.

James Percival, legal counsel for DHS, explained that third-country removals require considerable diplomatic effort. "Norway won't take a rapist from Cuba," he said.

The issue in this lawsuit is not DHS's fundamental authority to carry out third-country removals, but the procedures that must be followed in advance. Oral arguments are scheduled for December. Whether DHS's third-country removal procedures comply with federal immigration law, due process, and protections against torture will be decided in the upcoming trial.

There is also backlash against the policy. Human rights groups recently alleged that authorities in Equatorial Guinea assaulted deportees. The Atlantic coastal nation, ruled by President Teodoro Obiang since 1979, is reportedly receiving $7.5 million from Washington in exchange for accepting third-country deportees.

The dilemma the administration emphasizes lies in diplomatic realities. Its argument is that if both the home country and third countries refuse to accept deportees, criminal immigrants end up back in American society. Part of this framework stems from a 2001 Supreme Court ruling. In the case of Kestutis Zadvydas, a stateless lawful resident with a criminal record who had been ordered deported, the Court ruled that the government cannot indefinitely detain people with no country willing to take them.