Removal to a Third Country

Protection against being returned to torture is one of the few guarantees in international law that admits no exception. It applies in peace and in emergency, to every person, whatever their conduct or immigration status. Understanding how that guarantee operates, and where domestic protections stop short of it, matters to anyone advising a person at risk of removal.

This page explains the framework. It sets out what a grant of protection under the Convention Against Torture does and does not cover, why a transfer to a country the person has no connection to raises questions the original decision did not answer, what safeguards the treaty bodies and special procedures say must accompany such a transfer, and what the public record shows about how these transfers have been carried out. It is written for advocates, monitors, students and practitioners. It is not legal advice.

1. The core obligation

Article 3 of the Convention Against Torture provides that no State Party shall expel, return or extradite a person to another State where there are substantial grounds for believing that they would be in danger of being subjected to torture. Three features of that sentence do the work.

• It is absolute. Article 2(2) provides that no exceptional circumstance whatsoever may be invoked to justify torture. The prohibition on return follows that character: it is not balanced against national security, public order, or the person's criminal record.
• It attaches to the transfer. The obligation is triggered by the act of sending, not by the person's status. It does not depend on their having applied for anything, or on their having won any particular form of relief.
• It is destination-specific. The question is always whether substantial grounds exist as to the country the person is actually being sent to. That question has to be asked afresh for each destination.

Parallel obligations arise under Article 7 of the International Covenant on Civil and Political Rights, as interpreted by the Human Rights Committee, and under Article 33 of the 1951 Refugee Convention for those within its scope. In the United States, Article 3 was implemented through section 2242 of the Foreign Affairs Reform and Restructuring Act of 1998, with regulations at 8 C.F.R. § 208.18.

2. What a grant of protection covers

A person who establishes that they would more likely than not be tortured may be granted withholding of removal under 8 U.S.C. § 1231(b)(3)(A), or, where a bar applies, deferral of removal under 8 C.F.R. § 208.17. These are real and hard-won protections. They are also narrower than they are often understood to be.

The reason is structural rather than adversarial. The immigration judge decided a question that was put: is this person likely to be tortured in the country named in the proceedings? A different country was never before the court, so no finding exists about it either way. The protection is silent about that destination because it was never asked.

Removal to a country other than the one designated is itself long provided for. Section 241(b) of the Immigration and Nationality Act sets an order of preference: the country the person designates, then a country of nationality or citizenship, and only where those are impracticable, inadvisable or impossible may the residual category at 8 U.S.C. § 1231(b)(2)(E) be reached, which includes any country whose government will accept the person.

3. Where the two frameworks meet

If domestic protection is country-specific and the international obligation is destination-specific, then a transfer to a new country raises a question that has not yet been answered by anyone. Two principles govern how it must be answered.

The risk must be assessed against the actual destination. A finding about one country carries no information about another. Where a transfer to a second country would itself expose the person to a substantial risk of torture, Article 3 applies to that transfer on its own terms.

The assessment must follow the chain. If the receiving country can be expected to send the person onward to the country they fled, the first transfer engages the prohibition just as the second would. This is the principle of indirect, or chain, refoulement. In July 2026 the Special Rapporteur on torture stated it directly: states cannot outsource their way around the torture ban, and must consider the whole chain of transfer.

"International law is clear that no one shall be sent anywhere where there are substantial grounds for believing that the person would be in danger of being subjected to serious human rights violations such as torture, enforced disappearance or arbitrary deprivation of life."

4. The safeguards that make the protection effective

A substantive prohibition is only as good as the procedure that gives effect to it. The elements below are drawn from the treaty-body and special-procedures material cited at the end of this page, and from the reasoning of the United States District Court for the District of Massachusetts in the litigation described in section 6.

• Individual assessment. Each person's situation must be examined on its own facts. Collective transfers and general assumptions about a receiving country cannot substitute for a case-by-case assessment.
• Notice of the destination. A person cannot raise a fear about a country they have not been told they are going to. Notice should be written, in a language the person understands, and given to any legal representative as well as to the person.
• Time to act on it. Notice must precede removal by long enough that counsel can be reached and an application made.
• An automatic stay. Removal should not proceed while a claim about the new destination is pending. A remedy that expires before it can be used offers no protection.
• A screening threshold, not a merits threshold. Requiring a person to prove their case at the screening stage inverts the purpose of screening, which is to identify claims that deserve examination.
• Access to counsel and to interpretation. Both are practical preconditions of every safeguard above.

5. Diplomatic assurances

Where a receiving state gives an assurance that a transferred person will not be ill-treated, the question is what weight that assurance can bear. The consistent position of international torture-prevention bodies is that an assurance is a piece of evidence to be assessed, not a substitute for the assessment itself. Its value depends on whether it is specific, whether compliance can be verified independently after transfer, and whether the practice it promises is consistent with what is otherwise known about conditions in that country.

The practical concern is straightforward and applies to every state, not to any one of them. If an assurance alone discharges the obligation, then the strength of the protection comes to depend on the willingness of a receiving government to make a promise, rather than on the conditions the person will actually face.

6. Pressure to leave: constructive refoulement

Transfer is not the only way a person can end up back in the country they fled. A state may also create conditions under which leaving becomes the only tolerable option, and then record the departure as voluntary. Where that happens, international law does not treat the label as decisive.

The practice is usually called constructive, or disguised, refoulement. The International Law Commission addressed it directly in its 2014 Draft Articles on the Expulsion of Aliens, article 10(1) of which provides that a state may not resort to disguised or indirect means or techniques to bring about the departure it could not lawfully order. UNHCR has described the mechanism as the creation of a coercive environment through lack of protection and material destitution. The Committee against Torture, in its general comment on the implementation of article 3, addresses dissuasive measures that induce people to return despite the risk to them personally. The Special Rapporteur on torture has described such practices as refoulement in disguise.

When a departure is not voluntary

Legal analysis of the doctrine identifies three elements. The measure or omission must be attributable to the state. The circumstances must be coercive enough to leave the person with no real alternative to leaving. And there must be an intention to bring the departure about. Where those elements are present, the departure is not voluntary in law, however it is recorded, and the state bears the same responsibility as if it had carried out the removal itself.

The measures identified in the literature and in the case law are ordinary administrative ones, which is what makes the doctrine necessary. They include prolonged detention with no realistic prospect of release, withdrawal or denial of permission to work, withholding of essential services and support, indefinite delay in processing, separation from family members, repeated relocation, and the offer of assisted return as the only route out of an otherwise indefinite situation. The European Court of Human Rights has concluded that consent to return cannot be treated as voluntary where the person faces detention with no prospect of liberty.

Why it matters particularly for people holding CAT protection

A person granted deferral of removal under the Convention Against Torture occupies an unusual position. They cannot lawfully be returned to the country in question, but the grant confers no status, no path to residence and no protection from detention. They may be unable to work, unable to travel, unable to regularise their position, and liable to be detained while the government looks for somewhere else to send them. The protection holds, and the life around it does not.

That combination is precisely the coercive environment the doctrine describes. A person who has been judicially found likely to face torture, and who then signs a request for return because the alternative is indefinite detention or destitution, has not made a free choice. The finding that they would be tortured does not stop being true because they signed a form.

What follows for monitoring

• Departures recorded as voluntary should be examined, not assumed. The question is what the alternative was.
• Where a person holds protection against return to a country and then returns to it, the circumstances of that decision deserve documentation.
• Length of detention, access to work, access to support and access to counsel are all measurable, and all bear on whether a choice was real.
• Consent obtained inside a place of detention should be assessed with the same care as any other statement obtained there. National Preventive Mechanisms are already constituted to examine exactly this.

7. The United States: the public record since 2025

The material below is documentation, reported for its educational value to advocates and monitors. Figures are attributed to the organisations that compiled them. ICET has not independently verified individual cases, and where a person's status or whereabouts is unclear, that is stated rather than filled in.

Policy and litigation

• 30 March 2025. The Department of Homeland Security issued a policy memorandum, "Guidance Regarding Third Country Removals". Immigration and Customs Enforcement issued substantively similar guidance on 9 July 2025.
• 23 June 2025. In DHS v. D.V.D., No. 24A1153, the Supreme Court stayed a district court preliminary injunction. The order was issued without an opinion.
• 25 February 2026. In D.V.D. v. Department of Homeland Security, No. 25-cv-10676-BEM (D. Mass.), the district court granted summary judgment for the plaintiff class and set the policy aside under 5 U.S.C. § 706(2)(A). The court held that class members have a right to meaningful notice before removal to any third country, and a meaningful opportunity to raise a country-specific claim before removal.
• 16 March 2026. The Court of Appeals for the First Circuit stayed that judgment pending appeal, on an expedited briefing schedule. While the stay is in effect the district court's reasoning is persuasive authority rather than binding law.

International response

• 8 July 2025. Seven United Nations special procedures mandates, among them the Special Rapporteur on torture and the Working Group on Enforced or Involuntary Disappearances, issued a joint statement urging that torture risks be assessed before any transfer to a third country.
• 28 July 2026. The Special Rapporteur on torture addressed removal systems generally, emphasising individualised assessment and analysis of the entire chain of transfer.

Reported transfers and conditions on arrival

The U.S. Committee for Refugees and Immigrants, which maintains a public tracker, recorded more than 19,000 people transferred to at least 25 countries as of June 2026. The entries below are among those it and Human Rights Watch have documented. They are included because conditions on arrival bear directly on whether a transfer is consistent with Article 3.

Two patterns in this record are relevant to the legal analysis above. The Cameroon entry is the clearest illustration of the point made in section 2: people already found to need protection were transferred elsewhere, because the protection they held spoke to a different country. And the El Salvador entry illustrates section 3: where transferred people are subsequently returned to the country they left, the question of chain refoulement arises directly.

Detention on arrival raises a further and separate question. Where a person is held in a correctional facility or camp without charge, without an order of a court and without access to counsel, the receiving state's own obligations are engaged, including under Article 9 of the International Covenant on Civil and Political Rights and, where the state is a party, under the Convention Against Torture.

8. Places of detention holding transferred people fall within OPCAT

This is the point at which the subject connects most directly to ICET's ordinary work. The Optional Protocol to the Convention Against Torture establishes a system of visits to all places where people are deprived of liberty, carried out by the Subcommittee on Prevention of Torture and by National Preventive Mechanisms in each State Party.

A facility holding people transferred from another state is a place of detention like any other. Where the receiving state is a party to OPCAT, that facility falls within its National Preventive Mechanism's mandate, and the mechanism is entitled to visit it, to speak with those held there in private, and to report. Where transferred people are held in a country with no functioning mechanism, that absence is itself the gap that leaves them unmonitored.

Encouraging and equipping National Preventive Mechanisms to include these facilities in their visiting programmes is a practical, non-confrontational contribution that torture-prevention bodies are already constituted to make.

9. If you are advising someone at risk

ICET does not provide legal representation and this page is not legal advice. The following are general observations that advocates have found useful, and each should be checked against current law in the relevant jurisdiction.

• Establish which country the person is actually to be sent to, and confirm it in writing. Every safeguard depends on knowing the destination.
• Treat an existing grant of protection as covering only the country it named. Where a new destination is proposed, a fresh claim about that country will usually need to be made.
• Record and preserve any expression of fear, and the date it was made.
• Where medical or psychological evidence of past torture exists, documentation prepared in accordance with the Istanbul Protocol carries recognised evidentiary weight.
• Consider whether an onward transfer from the receiving country is foreseeable, and document the basis for that concern.
• United Nations special procedures, including the Special Rapporteur on torture and the Working Group on Enforced or Involuntary Disappearances, receive individual communications and may issue urgent appeals. Whether the Committee against Torture can receive an individual complaint depends on whether the state concerned has made a declaration under Article 22, which should be checked for each state.

10. Sources

Every assertion above rests on one of the following. Reporting compiled by monitoring organisations is attributed to them by name rather than restated as established fact.

1. Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, articles 2(2), 3 and 22.
2. Optional Protocol to the Convention against Torture (OPCAT), articles 1, 4, 19 and 20.
3. International Covenant on Civil and Political Rights, articles 7 and 9.
4. Convention relating to the Status of Refugees (1951), article 33.
5. Foreign Affairs Reform and Restructuring Act of 1998, § 2242; implementing regulations at 8 C.F.R. § 208.18.
6. Immigration and Nationality Act § 241(b), codified at 8 U.S.C. § 1231(b), in particular § 1231(b)(2)(D)-(E) and § 1231(b)(3)(A).
7. Withholding of removal, 8 C.F.R. § 208.16; deferral of removal under the Convention Against Torture, 8 C.F.R. § 208.17.
8. DHS v. D.V.D., No. 24A1153 (U.S. June 23, 2025) (stay of preliminary injunction).
9. D.V.D. v. Department of Homeland Security, No. 25-cv-10676-BEM, 2026 WL 521557 (D. Mass. Feb. 25, 2026).
10. OHCHR, joint statement of seven special procedures mandates, 8 July 2025.
11. OHCHR, statement of the Special Rapporteur on torture, 28 July 2026.
12. Special Rapporteur on torture, position paper on non-refoulement.
13. Human Rights Watch, "US/Africa: Expulsion Deals Flout Rights", 23 September 2025.
14. U.S. Committee for Refugees and Immigrants, Third Country Deportations Tracker (figures as recorded to June 2026).
15. American Immigration Council, "What Are Third-Country Removals?" fact sheet.
16. International Law Commission, Draft Articles on the Expulsion of Aliens (2014), art. 10(1) (prohibition of disguised expulsion).
17. Committee against Torture, general comment on the implementation of article 3, on measures that induce return despite personal risk.
18. EJIL:Talk!, "Does international law prohibit constructive refoulement?" (analysis of the elements and authorities).
19. International Journal of Refugee Law, "Pushed to Breaking Point? The Prohibition of Constructive or Disguised Refoulement under International Law", vol. 35, no. 4, p. 419.
20. UNHCR, Voluntary Repatriation: International Protection (handbook).
21. Istanbul Protocol: Manual on the Effective Investigation and Documentation of Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (revised edition).