Where does the United States send someone who is being deported? One would think that the question of “country of removal” would be a central point of an immigration court removal proceeding. However, country of removal is frequently decided in seconds during one of the first preliminary hearings. Although noncitizens have the first opportunity to designate a country of removal, standard practice in asylum and fear-based relief cases has been to “decline to designate” lest Immigration and Customs Enforcement (ICE) attorneys argue that the designation of a country of removal waives the fear-based applications.

Furthermore, in the first year of the second Trump administration, the Department of Homeland Security’s (DHS) policy on “third country removals” changed dramatically as DHS sought to detain and deport as many noncitizens as possible with maximum cruelty and little-to-no process. Third country removals have gone from a theoretical possibility to a significant probability and risk for noncitizens granted protection under the Convention Against Torture or withholding of removal, as well as noncitizens with unexecuted removal orders whose countries will not accept them. As immigration lawyers and advocates respond to the increased risk of third country removals, most strategies are defensive in nature and involve complex and time-consuming federal litigation and motions to reopen immigration court proceedings. The current system leaves noncitizens subject to the whims of DHS enforcement interests, dependent on lawyers with federal litigation experience, and at risk of removal to war-torn countries where they have no family and no connections.

This article argues that immigration lawyers should use the administrative process to create a record that protects noncitizens against third country removals. Noncitizens and immigration lawyers should use two processes to increase control and transparency over the designation of a country of removal. First, on a case-by-case basis, immigration lawyers should advise clients about their right to designate a country of removal. Should a client decide to designate a country of removal, and not decline, then the immigration lawyer should also state on the record why the designation does not waive any fear-based claims. This designation will create an administrative record that DHS would have to address should a noncitizen face third country removal. Second, noncitizens and lawyers should argue for the immigration court to revisit the country of removal question at the end of removal proceedings, particularly after an Immigration Judge has either denied all relief or granted protection under the Convention Against Torture or withholding of removal. Finalizing the question of removal at the end of the proceedings, as opposed to the very start, provides greater transparency, notice, and judicial efficiency by asking ICE to state its intention to pursue third country removal. Revisiting the country of removal at the end of proceedings also provides an opportunity for noncitizens to express any fears about returning to the proposed third country.

Continue reading Deportations to Perilous Places: Protecting Against Third Country Removal in Immigration Court