DHS Defends Third-Country Deportations as Supreme Court Weighs Case

The Supreme Court this week temporarily cleared the Trump administration to continue its third-country deportation policy, staying a lower-court judgment that had restricted the practice while the justices consider the case on its merits. Arguments are set for December on whether the Department of Homeland Security's procedures comply with federal immigration law, due process guarantees and safeguards against torture.

The case does not directly challenge DHS's underlying authority to carry out third-country removals, but rather the procedures the agency must follow beforehand. The policy allows the government to deport removable immigrants to a country other than their own when their home nation will not accept them or cannot be returned to.

James Percival, the agency's general counsel, has mounted a public defense of the authority, describing it as part of a broader Trump strategy of reviving immigration tools already on the books. He pointed to the Illegal Immigration Reform and Immigrant Responsibility Act, a major reform package passed by Congress and signed by President Bill Clinton in 1996, which expressly includes the third-country provision.

«It's in the statute expressly that we can do this,» Percival said. «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.» He compared unused government authority to fine china that owners are too afraid to use for fear of breaking it.

Percival acknowledged the diplomatic difficulty of the effort, noting that third countries are not always eager to accept deportees with criminal records. «Imagine going to a country and saying, hey, we've got a guy, he's not your guy, and he's a rapist, but can he please live there?» he said. «That's not an easy ask. It requires significant diplomatic energy… Norway is not taking a rapist from Cuba.»

The policy has drawn criticism from human rights advocates, who pointed most recently to allegations that deportees were beaten by authorities in Equatorial Guinea, a small nation on Africa's Atlantic coast under President Teodoro Obiang's control since 1979. Obiang's government received $7.5 million from Washington as part of an agreement to accept third-country deportations. Percival responded: «I'd rather live in the United States than Equatorial Guinea too, but I'm an American citizen and I haven't killed anybody.»

The detention question traces in part to the Supreme Court's 2001 decision in the case of Kestutis Zadvydas, a stateless legal resident born to Lithuanian parents in a German displaced-persons camp. Neither Lithuania nor Germany would accept him. The court held that six months of post-removal detention is presumptively reasonable, after which continued detention can be challenged if removal is not reasonably foreseeable.

Percival is making his case publicly through a «Daily Deportee» series on X, highlighting criminal deportees whose home countries will not accept them. He cited Kyaw Mya, a Burmese national whose home country won't take him back, and described another planned case involving a migrant who committed a violent crime, was not removed by the Bush administration after serving time and allegedly reoffended after release.

«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,» Percival said, adding that the effort is intended to shape public understanding of the issue and highlight its stakes.

As DHS continues seeking to use underutilized tools in the 1996 law and other statutes, Percival pointed to another option that Homeland Security Secretary Markwayne Mullin continues to keep on the table: «It's not too late to get $3,000 and a flight home.»

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Evan Emerson

Political Correspondent

Evan Emerson covers public affairs, politics, business, culture and daily news for Cronkite. The role focuses on verification, context, and clear explanations for readers.

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