Commentary. This article sets out the text of the removal regulations and what three courts have recorded. It reports what the documents say. It is not advice, and nothing in it should be read as telling anyone what to do in their own case.
Officials call it third-country removal. When a person holds protection against being returned to one country, is sent instead to another, and that second country sends him on to the first, the conduct has an older and more exact name: refoulement, and where it happens in two steps, indirect refoulement or chain refoulement. This article is about a narrow question inside that: which countries the rules require to be named out loud, in front of the person, before anyone is removed anywhere.
What the rules say
Two provisions of title 8 of the Code of Federal Regulations carry the requirement. Both are set out below in full, as they stand in the electronic Code of Federal Regulations at 1 September 2026. Only the bracketed amendment history at the end of each section has been left off.
8 C.F.R. 1240.10(f) is about identifying the country.
“(f) Country of removal. With respect to an arriving alien covered by section 241(b)(1) of the Act, the country, or countries in the alternative, to which the alien may be removed will be determined pursuant to section 241(b)(1) of the Act. In any other case, the immigration judge shall notify the respondent that if he or she is finally ordered removed, the country of removal will in the first instance be the country designated by the respondent, except as otherwise provided under section 241(b)(2) of the Act, and shall afford him or her an opportunity then and there to make such designation. The immigration judge shall also identify for the record a country, or countries in the alternative, to which the alien’s removal may be made pursuant to section 241(b)(2) of the Act if the country of the alien’s designation will not accept him or her into its territory, or fails to furnish timely notice of acceptance, or if the alien declines to designate a country. In considering alternative countries of removal, acceptance or the existence of a functioning government is not required with respect to an alternative country described in section 241(b)(1)(C)(i)-(iii) of the Act or a removal country described in section 241(b)(2)(E)(i)-(iv) of the Act. See 8 CFR 241.15.”
Two things in that text deserve to be read twice. The duty to identify an alternative country arises not only when the designated country refuses the person, but also, in the regulation’s own words, “if the alien declines to designate a country.” And in considering those alternative countries, the regulation provides that “acceptance or the existence of a functioning government is not required” for the categories it goes on to name by cross-reference.
8 C.F.R. 1240.11(c)(1) is about what follows if the person is afraid of one of those countries.
“(c) Applications for asylum and withholding of removal. (1) If the alien expresses fear of persecution or harm upon return to any of the countries to which the alien might be removed pursuant to § 1240.10(f), and the alien has not previously filed an application for asylum or withholding of removal that has been referred to the immigration judge by an asylum officer in accordance with § 1208.14 of this chapter, the immigration judge shall: (i) Advise the alien that he or she may apply for asylum in the United States or withholding of removal to those countries; (ii) Make available the appropriate application forms; and (iii) Advise the alien of the privilege of being represented by counsel at no expense to the government and of the consequences, pursuant to section 208(d)(6) of the Act, of knowingly filing a frivolous application for asylum. The immigration judge shall provide to the alien a list of persons who have indicated their availability to represent aliens in asylum proceedings on a pro bono basis.”
Taken together the two provisions describe a hearing in which the alternative countries are said out loud and entered on the record, and in which a person who is afraid of any of them is told that he may apply for protection against being sent there.
The hearing O.C.G. was in was a narrower kind
O.C.G. was in a withholding-only proceeding. The rule for those is 8 C.F.R. 1208.2(c)(3)(i), and it says two things that pull against each other.
“Except as provided in this section, proceedings falling under the jurisdiction of the immigration judge pursuant to paragraph (c)(1) or (2) of this section shall be conducted in accordance with the same rules of procedure as proceedings conducted under 8 CFR part 1240, subpart A. The scope of review in proceedings conducted pursuant to paragraph (c)(1) of this section shall be limited to a determination of whether the alien is eligible for asylum or withholding or deferral of removal, and whether asylum shall be granted in the exercise of discretion. The scope of review in proceedings conducted pursuant to paragraph (c)(2) of this section shall be limited to a determination of whether the alien is eligible for withholding or deferral of removal. During such proceedings, all parties are prohibited from raising or considering any other issues, including but not limited to issues of admissibility, deportability, eligibility for waivers, and eligibility for any other form of relief.”
The same rules of procedure, and a scope limited to eligibility for withholding or deferral. The Coalition sets out both sentences because both are in the regulation.
What happened in the hearing
The United States District Court for the District of Massachusetts set the hearing record out in its order of 23 May 2025, published at 784 F. Supp. 3d 401, 407, and quoted it again in its memorandum and order of 25 February 2026. It is reproduced below as that later decision prints it. The court notes there that it has left out a footnote and the internal citations to the withholding-only transcript.
“During the withholding-only proceedings, O.C.G. asked if he might be sent to Mexico—because he was afraid of being sent to Mexico—and the immigration judge told him, ‘we cannot send you back to Mexico, sir, because you’re a native of Guatemala.’ During another hearing before the immigration court, O.C.G. described in detail the violence he experienced while in Mexico. At the close of that hearing, the government’s attorney clarified with the immigration judge that, because Guatemala was the country of removal designated on O.C.G.’s order of removal, that was the only relevant country for purposes of the withholding-only proceedings, and the immigration judge agreed.
Two days after being granted withholding of removal, and with no advanced warning, O.C.G. was put on a bus and sent to Mexico.”
Mexico sent him to Guatemala. A United States court ordered him returned, and the government returned him. The Coalition’s report of that is here.
The sentence the court wrote immediately after the passage above is its own conclusion from that record.
“Given the legal impossibility of raising hypothetical claims as to undesignated countries of removal, the inherent practical difficulty in doing so is technically irrelevant but nonetheless worth mentioning.”
Two courts said the same thing in 1998 and 1999
The requirement that the country be named is not new, and neither is what happens when it is not.
Kossov v. Immigration and Naturalization Service, 132 F.3d 405, decided by the Court of Appeals for the Seventh Circuit on 5 January 1998. A husband and wife from the former Soviet Union came to their hearing without a lawyer. At the outset of that single day, at the request of the government, the immigration judge designated Russia as her country of deportation and Latvia as his. The hearing that followed was almost entirely about Latvia. At its close the judge granted them voluntary departure and, in the alternative, ordered them both deported to Russia.
The Court of Appeals vacated the decision of the Board of Immigration Appeals and sent the case back. It gave its reason in its opening paragraphs: because it concluded that the immigration judge had committed errors that severely prejudiced the couple’s ability to present their claim for asylum. The error it identified was the absence of the notice:
“The IJ never informed the Kossovs, who at the time were without counsel, that they had the right to seek asylum here and introduce evidence specifically directed against deportability to Russia.”
It cited the regulation then in force, 8 C.F.R. 242.17(c)(2), and described it in these words:
“providing that immigration judge must advise alien of right to apply for asylum or withholding of deportation with respect to any country specified as a possible deportation site, provided alien ‘expresses fear of persecution or harm upon return to’ such country”
The phrase the court put inside its own quotation marks, expresses fear of persecution or harm upon return to, is the phrase that opens 8 C.F.R. 1240.11(c)(1) today, twenty-eight years later. The Coalition has compared the two texts and they match. It has not been able to obtain the 1997 printing of the older rule, so what is shown here is the match between the court’s quotation of it and the rule now in force.
The court also dealt with the argument that naming the country at the start of the hearing was notice enough:
“The INS’ argument that the IJ’s designation of Russia as Mrs. Kossov’s country of deportation at the outset of the single-day merits hearing put the Kossovs on notice that they might both be deported to Russia, and therefore that they ought to have presented whatever evidence they had concerning Russia immediately, fails miserably. The Kossovs appeared at the hearing without counsel. It is too much to expect that they should have the expertise to adapt instantaneously to such an unexpected turn of events, particularly given the IJ’s failure, noted earlier, explicitly to inform them that they had the right to expand their application and their evidence to include opposition to deportability to Russia.”
There was a further obstacle. The couple had never raised the point before the Board of Immigration Appeals, and a point not raised there is ordinarily lost. The court held that it could reach the issue anyway, and the reason it gave is worth setting out, because it says what kind of failure this is:
“What this Court is in effect asked to review is an order deporting the Kossovs to Russia in the absence of a fair hearing concerning that deportation. The BIA should have recognized sua sponte such a fundamental failure of due process during its consideration of the Kossovs’ challenge to the deportation order.”
That passage is the court’s answer on whether it could hear the point at all. Its decision on the merits followed, and rested on the same failure of notice.
Andriasian v. Immigration and Naturalization Service, 180 F.3d 1033, decided by the Court of Appeals for the Ninth Circuit on 11 June 1999. An ethnic Armenian family who had fled Azerbaijan. The asylum hearing had been about Azerbaijan throughout, and the immigration judge had told Mr. Andriasian to be ready to show why he should not be returned there. Then, in the court’s words:
“However, before beginning her closing statement, the INS attorney asked that Armenia be added as an alternative country for deportation. The IJ did so.”
The court’s response:
“It is of course wholly impermissible to base a denial of asylum on an applicant’s inadequate presentation of evidence on a matter that he had no reason to anticipate would be a subject of the asylum hearing. Mr. Andriasian was operating under the belief — a belief based on instructions on the INS forms as well as the instructions from the IJ at the initial hearing — that he needed to present evidence only in support of his claim for asylum and withholding of deportation to Azerbaijan. He was not informed otherwise until the end of his asylum hearing, after the close of evidence. This violated a basic tenet of constitutional due process: that individuals whose rights are being determined are entitled to notice of the issues to be adjudicated, so that they will have the opportunity to prepare and present relevant arguments and evidence.”
One qualification, which the Coalition states because anyone relying on this case will need it. Andriasian was not decided on that argument. Mr. Andriasian had argued in the alternative, and the government conceded the notice point. The court recorded the concession: “On this point, the INS has advised us that it is now in agreement with Mr. Andriasian.” It then wrote: “Mr. Andriasian’s second argument, however, is the one that is dispositive here.” That second argument was that the Board’s discretionary denial of asylum was itself contrary to law, and the case was decided on it. The passage above is therefore a point the government did not contest and on which the case did not turn. It should be described that way, and not as the holding.
What the court stated as a general proposition, in its own voice and with its own citations, was this:
“Failing to notify individuals who are subject to deportation that they have the right to apply for asylum in the United States and for withholding of deportation to the country to which they will be deported violates both INS regulations and the constitutional right to due process.”
The only case it cited for that proposition was Kossov.
The words the court used
In the memorandum and order of 25 February 2026 the district court used, in its own voice, the two phrases that name what happened to O.C.G.
“In other cases, the problem of indirect refoulement (sometimes called ‘chain refoulement’) and ever-shifting diplomatic relations makes a person’s risk of persecution or torture less obvious than one might first imagine.”
The example the court then gave was its own. The footnote markers in the original have been left out.
“For example, imagine a Chinese-national Uyghur-rights activist who fears removal to China. Of course, he would be aware of the immediate risk he faces on account of his political beliefs and would likely seek protection from removal directly to China. But he is equally at risk in any country that would—either by ‘willful acceptance’ or by simply ‘turn[ing] a blind eye’—hand him over to China, such that the ultimate likely result remains the same.”
For the two standards inside that sentence the court cited H.H. v. Garland, 52 F.4th 8, 15 (Court of Appeals for the First Circuit, 21 October 2022), which in turn cited Cruz-Quintanilla v. Whitaker, 914 F.3d 884, 886 to 887 (Court of Appeals for the Fourth Circuit, 2019). H.H. is a case about what it takes to show that a government consents to or acquiesces in torture. It is not itself a case about third countries. The district court was borrowing its language.
Where this stands
The memorandum and order of 25 February 2026 is Document 241 on the district court docket. The judgment entered with it is Document 242, and the district court stayed that judgment itself at the moment it entered it, for fifteen days or until the Court of Appeals ruled on any stay application, whichever came first. The Court of Appeals for the First Circuit granted the government an emergency stay pending appeal on 16 March 2026. The appeal is No. 26-1212 and has not yet been decided.
A stay suspends a judgment. It does not alter the hearing transcript that the judgment describes, and it has no effect at all on Kossov, on Andriasian, or on the text of the regulations set out above. Nothing in this article should be read as a statement of what a court would order today.
Sources
8 C.F.R. 1240.10, Hearing: electronic Code of Federal Regulations.
8 C.F.R. 1240.11, Ancillary matters, applications: electronic Code of Federal Regulations.
8 C.F.R. 1208.2, Jurisdiction: electronic Code of Federal Regulations.
Kossov v. Immigration and Naturalization Service, 132 F.3d 405 (7th Cir., 5 January 1998): CourtListener.
Andriasian v. Immigration and Naturalization Service, 180 F.3d 1033 (9th Cir., 11 June 1999): CourtListener.
H.H. v. Garland, 52 F.4th 8 (1st Cir., 21 October 2022): CourtListener.
D.V.D. v. U.S. Department of Homeland Security, No. 1:25-cv-10676-BEM, Memorandum and Order, Document 132, 23 May 2025, published as 784 F. Supp. 3d 401 (D. Mass. 2025): CourtListener.
D.V.D. v. U.S. Department of Homeland Security, Memorandum and Order on the defendants’ motion to dismiss and on the plaintiffs’ motion for partial summary judgment, Document 241, 81 pages, 25 February 2026: CourtListener.
The Kossov and Andriasian texts are taken from scanned reporter volumes, in which line-break hyphens occasionally split a word. Those hyphens have been closed up in the quotations above. Nothing else in them has been changed.
The treaty texts that prohibit sending a person on to a place where he faces torture, and the provisions that govern removal to a country other than the one named in the order, are set out on The laws that protect people from torture. The entry for the return order in the Coalition’s register is here.