Supreme Court Temporarily Shields DHS Third-Country Deportation Policy

The Supreme Court has temporarily cleared the Trump administration's third-country deportation policy, allowing the Department of Homeland Security (DHS) to continue the practice while the case is considered on its merits. The justices granted a stay against a lower court’s judgment that had restricted the policy.

DHS General Counsel James Percival is publicly defending the authority, which allows for the removal of individuals to a third country when they cannot be returned to their home country or that country refuses to accept them. Percival describes this as part of a broader strategy to revive existing immigration authorities that he argues have been underutilized by previous administrations.

"It’s in the statute expressly that we can do this," Percival stated. "If you go back and read most of the immigration laws, there's a lot of really good tools in there that people just haven't used."

The third-country removal provision was included in the Illegal Immigration Reform and Immigrant Responsibility Act (IIRIRA) of 1996. Percival likened the hesitation to use such authorities to owning fine china: "They're afraid if they ever actually use it, someone will take it away. And if you've ever owned fine china, it's like you can find yourself at the end of your life and you were so afraid you would break it you never used it."

Arguments are scheduled for December concerning whether the agency’s procedures comply with federal immigration law, due process, and safeguards against torture. The case does not directly challenge DHS’s authority to conduct third-country removals, but rather the specific procedures the agency must follow.

Percival has been highlighting cases through a social media series, "Daily Deportee," to illustrate the dilemmas DHS faces. He presented a scenario involving a criminal deportee: "If the person is a child rapist and serves 20 years, we have two choices: Find a third country — or let the child rapist go live in an American community."

Concerns have been raised by human rights advocates regarding the treatment of deportees in some third countries. One report mentioned allegations of beatings by authorities in Equatorial Guinea, which has an agreement with the U.S. to accept deportees in exchange for financial compensation.

Percival cited the case of a Burmese national whose home country would not accept his return. Another example involved a migrant who committed violent crimes, served time, was released, and allegedly reoffended after his release because his home country also refused to take him back.

As DHS continues to explore the use of these legal tools, Percival reiterated an alternative option for individuals facing removal: DHS is offering a $3,000 stipend and a flight home as an incentive for voluntary departure through the end of the year.