Punitive Third-Country Removals

If you read one page of this project, read this one. It sets out a single distinction, and everything else is evidence for it.

The removal is one thing. What is added to it is another.

When a court reviews a death sentence and stays the execution because the method of carrying it out would be cruel, it does not disturb the sentence. The two questions are separate. The sentence may stand while the method fails.

The Coalition takes the view that the same separation applies here, and says so in its own voice. A removal order may be lawful. The way it is executed is a different question, and so is what the executing state has arranged to happen at the other end.

This is the Coalition’s framing. What follows is not.

Why it is hard to see

The two kinds of removal look identical from the outside. They are carried out under the same statutory authority, on the same paperwork, by the same officers, often on the same aircraft. A person served with a notice naming a country cannot tell from that notice which one is about to happen to them, and neither can their family, and often neither can their lawyer until it is too late to do anything about it.

The Coalition’s view is that this is not incidental. The lawful category is the cover under which the punitive practice moves. Every court in the record below had to be shown, case by case and country by country, what was actually happening at the other end before it could tell the difference. That is the whole difficulty, and it is the reason this project exists.

What the Coalition says this is

The Coalition’s position, stated in its own voice and not attributed to any court, is that this is not a series of unfortunate administrative episodes. It is a method. Its effect, and the Coalition believes its purpose, is to place people beyond the reach of due process before they can invoke it.

The method has recognisable parts, and each of the following is documented in a filed court record:

• People are taken with little or no notice, in the middle of the night.
• They are shackled, and in some cases put in straitjackets for as long as sixteen hours.
• They are not permitted to contact their families or their lawyers.
• They are put aboard military aircraft.
• They are not told where they are going until they are in the air.
• They land in states they have no connection to and, in several cases, had never heard named in their own proceedings.
• They are held on arrival, in some cases incommunicado, in one state in solitary confinement.
• Under the policy in force, where the Department of State credits a diplomatic assurance, a person may be removed with no notice and no procedure at all.

The nearest a court has come to naming this as a design is a federal judge’s finding that the government’s actions “appear to be part of a pattern and widespread effort to evade the government’s legal obligations by doing indirectly what it cannot do directly,” in a case she said was “not an outlier.” She made that observation while refusing relief for want of jurisdiction, and this site records it as an observation rather than a finding.

Four courts asked to find that the practice is punitive have declined to do so on the records before them, and the Coalition records those refusals in full in section five. It says what it believes, and it shows the reader everything that cuts against it.

Who this is being done to

A great many of the people in these cases hold protection ordered by a United States immigration judge. Not a claim of protection. An order.

The five people flown to Ghana had all been granted withholding of removal or deferral of removal under the Convention against Torture, meaning a judge had found each of them more likely than not to face persecution, torture or death if returned home. One of them had fled after being tortured by the military and police, who told him that if they ever saw him again they would kill him. Of the individual cases in the register, the man removed towards Nicaragua held deferral under the Convention. The Egyptian law student who had been tortured as a political prisoner held withholding. A second Egyptian man held a finding that he would more likely than not be tortured. The Russian man held withholding, and the judge who granted it recorded that but for a presumption she was required to apply, she would have granted him asylum outright. The Venezuelan man held withholding under the Convention.

These are the people being moved to third countries. The protection order does not stop a removal elsewhere, and the Coalition does not say otherwise. But it is the reason the destination matters more here than in any ordinary removal, because the whole purpose of that order was to keep the person away from a place where they would be harmed.

Many had also been living under immigration supervision for a very long time. One man had been on an order of supervision since 2009. Another had been released by a federal court in 2000 and lived under supervision for a quarter of a century. They reported when required. Then, in 2025, they were re-detained. Of the reason given for one of those re-detentions, the judge wrote that it was “incomprehensible” that immigration authorities would decide, six years after the man’s most recent conviction, that he had suddenly become a threat to public safety. The second justification offered, that he could be removed quickly, the judge called “implausible,” because seven months later no travel document request had been sent.

What changed in 2025 was not these people. It was what was decided to do with them.

The rule is a hundred and thirty years old

In 1896 the Supreme Court held that Congress may expel a person, and may detain them while it does so, but may not add punishment to the expulsion without a criminal trial. It called the added punishment “infamous,” and it distinguished it from “detention or temporary confinement” incidental to removal. That case, Wong Wing v. United States, has never been overruled. The Supreme Court restated it in 2001 in Zadvydas v. Davis, which recorded that Wong Wing had held “that punitive measures could not be imposed upon [noncitizens] ordered removed because ‘all persons within the territory of the United States are entitled to the protection’ of the Constitution.”

What a reader should take from this project

Not that removal is unlawful. It usually is not. The point is narrower and harder to answer: that a lawful order can be carried out in a way the Constitution does not permit, that this has been happening, and that when courts have been shown the evidence for a particular destination they have stopped it.

Sources for this page

Wong Wing v. United States, 163 U.S. 228 (1896); Zadvydas v. Davis, 533 U.S. 678, 693–94 (2001); D.A. v. Noem, No. 1:25-cv-03135-TSC (D.D.C. 15 September 2025); Van Nguyen v. Bondi, 818 F. Supp. 3d 1235 (W.D. Wash. 2026); Elshourbagy v. Bondi, 817 F. Supp. 3d 1102 (W.D. Wash. 2025); Vashchuk v. Bondi, 826 F. Supp. 3d 1282 (W.D. Wash. 2026); Saadhom v. Bondi, 829 F. Supp. 3d 907 (W.D. Wash. 2026); Baltodano v. Bondi, 815 F. Supp. 3d 1191 (W.D. Wash. 2025); Rea-Hernandez v. Bondi, 824 F. Supp. 3d 1124 (W.D. Wash. 2026). All in the register of court decisions.

This section describes what happens between the cell in the United States and the ground in another country. Every detail below is taken from a filed court record, and the source is named at the end of each account.

Ghana, 5 September 2025

Five people, citizens of Nigeria and The Gambia, each of whom an immigration judge had found would more likely than not face persecution, torture or death if returned home, were woken in the middle of the night at a United States immigration facility. They were shackled. They were put aboard a United States military cargo plane. They were not allowed to notify their families or their lawyers. One was sent without identification documents. Some were placed in straitjackets for as long as sixteen hours, and one says he now has difficulty walking because his was secured so tightly. They were told they were being taken to Ghana while they were in the air. None is Ghanaian. None had named Ghana in their immigration proceedings. On arrival they were taken to Dema Camp, which the court described as a remote, open-air detention facility surrounded by armed military guards.

These are the accounts the court recorded from the plaintiffs’ own declarations. It made no findings on them, because it held it had no jurisdiction to grant the relief sought. The full account is on the Ghana country guide, and the decision is in the register at D.A. v. Noem.

What the courts have said about the notice given

The policy in force since 9 July 2025 provides that where the United States has received diplomatic assurances the Department of State believes credible, a person “may be removed without the need for further procedures.” Where it has not, an officer serves a notice naming the country, but the policy states that immigration officers “will not affirmatively ask whether the [noncitizen] is afraid of being removed to the country of removal.” The wait before removal is generally at least twenty-four hours, and in exigent circumstances six. A person who does not volunteer a fear within twenty-four hours is removed.

A federal judge who set that policy out in full held that these procedures “fall far short of what court[s] in this District and Circuit have held that due process requires,” and found that the government had misrepresented what protection the policy actually gives. The decision is in the register at Elshourbagy v. Bondi.

Who is being moved this way

Not, on this record, people newly arrived or in hiding. The men in these cases had lived in the United States for decades. One was admitted as a lawful permanent resident in 1995 and had been living under an order of supervision since 2009, reporting when required. One came as the child of a refugee in 1989. One had been released by a federal court in 2000 because there was no reasonable likelihood he could be removed, and had lived under supervision for a quarter of a century.

The Coalition records one fact that cuts against a common description of these cases, because leaving it out would make the record less reliable. Several of the people in these decisions have criminal convictions, some of them serious, and several acquired them while living under supervision. One man had twenty-four convictions. He obtained an injunction all the same. In the one case in the register where the person had no criminal record at all, the punitive claim failed, because the countries the government was approaching were Denmark, Norway and Sweden.

The Coalition states this plainly because the principle does not need the people to be blameless, and is weaker if it is made to depend on that. Wong Wing concerned a man convicted of being unlawfully present and sentenced to hard labour. The Supreme Court did not ask whether he deserved better. It held that punishment cannot be added to expulsion without a trial, and that holding protects everyone or it protects no one.

Why now

The Coalition’s view, in its own voice, is that the purpose of treating people this way is not to remove them. It is to be seen removing them, and so to frighten others.

Petitioners in these cases have alleged that the government hand-picked states known for human rights abuses and instability, in order to spread fear and deter immigration. Courts have recorded that the government did not deny it. One court took judicial notice of an official video in which the President said that people who remain unlawfully “face punishments, including significant jail time, enormous financial penalties, confiscation of all property, garnishment of all wages, imprisonment and incarceration, and sudden deportation in a place and manner solely of our discretion,” and of a statement that people would be held at Guantanamo Bay because “it’s a tough place to get out” and “we don’t want them coming back.” The court found that these statements “do offer evidence that third country deportation is occurring as a punishment.”

A punishment aimed at an audience rather than at the person receiving it is the oldest form of making an example. The people in these cases are the example. The audience is everyone else.

Sources for this page

D.A. v. Noem, No. 1:25-cv-03135-TSC (D.D.C. 15 September 2025), ECF 41; Elshourbagy v. Bondi, 817 F. Supp. 3d 1102, 1114–15 (W.D. Wash. 2025), setting out the ICE memorandum of 9 July 2025; Van Nguyen v. Bondi, 818 F. Supp. 3d 1235 (W.D. Wash. 2026); Abubaka v. Bondi, No. 2:25-cv-01889-RSL (W.D. Wash. 17 November 2025); Pham v. Warden, 833 F. Supp. 3d 1092 (E.D. Cal. 2026); Baltodano v. Bondi, 815 F. Supp. 3d 1191 (W.D. Wash. 2025); Vashchuk v. Bondi, 826 F. Supp. 3d 1282 (W.D. Wash. 2026); Nguyen v. Scott, 796 F. Supp. 3d 703, 733–34 (W.D. Wash. 2025). All in the register of court decisions.

The second thing added to these removals is what the receiving state does with the person once the aircraft has gone. This is the half that the courts have ruled on.

South Sudan and Eswatini

In August 2025 a federal judge examined sworn declarations that men deported from the United States to South Sudan and to Eswatini had been imprisoned incommunicado since their arrival. In November 2025 a second judge described the same evidence and recorded that in Eswatini the men were held in solitary confinement. On that record he held that the government’s practice of third-country removal paired with imprisonment “is intended to be punitive” and violates due process.

Both country guides carry this material in full, with their own sources: Eswatini and South Sudan.

Ghana

The government told a federal court that Ghana had assured the United States it would not send the five people transferred there anywhere they were likely to be tortured. One of the five was returned to his home country almost immediately and is in hiding. At the hearing the government agreed that Ghana appears to be violating the assurance it gave, agreed that the practice “is not okay,” and said it could not prevent the return because the United States “does not have the power to tell Ghana what to do.”

The full account is on the Ghana country guide.

What one judge concluded about the pattern

“Defendants’ actions in this case appear to be taken in disregard of or despite its obligations to provide individuals present in the United States with due process and to treat even those who are subject to removal humanely. These actions also appear to be part of a pattern and widespread effort to evade the government’s legal obligations by doing indirectly what it cannot do directly.”

The same judge wrote that the case was “not an outlier,” and that she was “alarmed and dismayed by the circumstances under which these removals are being carried out.” She refused the relief sought, holding that she had no jurisdiction to grant it. Her closing words were that her hands were tied.

These are observations, not findings. The difference between the two, and why this site keeps them apart, is explained on the terminology page.

Sources for this page

Nguyen v. Scott, 796 F. Supp. 3d 703 (W.D. Wash. 21 August 2025); Abubaka v. Bondi, No. 2:25-cv-01889-RSL (W.D. Wash. 17 November 2025); D.A. v. Noem, No. 1:25-cv-03135-TSC (D.D.C. 15 September 2025). All in the register of court decisions.

An account of the rules that bear on this subject, in the words of the instruments and decisions themselves. It is a description, not an interpretation, and it tells no reader what to do.

The prohibition on adding punishment

Wong Wing v. United States (1896) held that Congress may expel a person unlawfully present, but may not add to the sanction of expulsion a punishment such as imprisonment at hard labor without a trial by jury. The Court distinguished detention or temporary confinement pending deportation from imprisonment as punishment, and described the latter as an infamous punishment requiring the protection of the Fifth and Sixth Amendments.

Zadvydas v. Davis (2001) restated that holding and described it as a substantive protection for people who have been ordered removed. It also recorded that immigration detention is civil rather than criminal, and that where the purpose of detention is no longer practically attainable, the detention no longer bears a reasonable relation to the purpose for which the person was held.

The Ninth Circuit has recognised limits on the detention of noncitizens pending removal, noting that such detention “may not be punitive.”

The prohibition on return to torture

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. The prohibition is absolute. The Committee against Torture reads it as reaching not only the state a person is sent to but any state to which that person may subsequently be sent, which is why an arrangement permitting onward transfer is treated on this site as a risk in itself.

The statutory order of countries

United States law sets an order of priority for the country to which a person may be removed. Removal to a country outside that order is permitted only where removal to the countries within it is impracticable, inadvisable or impossible, and then only to a country whose government will accept the person. Even then the statute provides that a person may not be removed to a country where their life or freedom would be threatened on the grounds it lists, and the regulations implementing the Convention against Torture provide for withholding and deferral of removal.

What this section does not do

It does not say how any of these rules applies to any person, nor what any reader should do about them. The Coalition is not able to give legal advice and does not attempt it. Anyone facing removal should speak to a lawyer, and the companion project’s Where to find help section lists places to look.

Sources for this page

Wong Wing v. United States, 163 U.S. 228, 235–38 (1896); Zadvydas v. Davis, 533 U.S. 678, 690, 693–94 (2001); Rodriguez v. Robbins, 804 F.3d 1060, 1076 (9th Cir. 2015); Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, article 3; 8 U.S.C. § 1231(b)(2) and (b)(3)(A); 8 C.F.R. §§ 208.16–208.17.

Ten cases, in eleven decisions between August 2025 and March 2026, addressed whether third-country removal is being used as punishment. Six found that it is. Five declined to find it. No court rejected the principle. This section sets out all of them, including the refusals, and what separates them.

What separates them is evidence, not doctrine

No court in this line has held that a third-country removal cannot be punitive. Several of the courts that refused relief said the opposite. One recorded that “there is extensive evidence across multiple cases that the government is carrying out some third-country removals that are unconstitutionally punitive,” and refused anyway, because the law of permanent injunctions did not let it infer from those cases that the petitioner before it faced the same harm. Another recorded that the petitioner had not substantiated his allegations, that the government had not denied them, and that courts in her district and across the country had recognised that the government is intentionally removing people to countries where they will be imprisoned.

The refusals turn on the same sentence, quoted in three of them: the cases finding the practice punitive were “specific to a particular population and particular destination countries” and do not extend to circumstances a petitioner has not connected himself to.

The clearest demonstration is a single case decided twice

On 7 November 2025 a federal judge refused the punitive claim, holding that the record before him lacked the specificity and examples regarding third-country imprisonment that were present in Nguyen v. Scott. On 4 December 2025, on a fuller record, the same judge granted it. Nothing in the law had changed in twenty-seven days. The evidence had.

What the Coalition takes from this, in its own voice

That the country record is the missing piece. Where a court has been shown what happens to people on arrival in a named country, it has acted. Where it has not, it has said so and declined. The Coalition’s country guides exist to put that record in one place, sourced and checkable, so that it is available to anyone who needs it.

One caution about where this line begins

The punitive analysis in these cases originates in Nguyen v. Scott, decided at the preliminary injunction stage on 21 August 2025. That case was voluntarily dismissed by its petitioner the following month after an agreement between the parties, and so never reached a merits decision. That does not make its findings wrong, and five courts have since adopted them on their own records. But anyone relying on this line should know where it begins.

Sources for this page

Every decision listed above appears in the register of court decisions, each with its court, date, docket number, citation, judge, disposition, holding, a caution recording what the decision does not establish, and a link to the record.

The most probative evidence about a government is what it says about itself. This section collects statements by the United States, in its policy documents, in public and in court, as courts have recorded them.

In public

A federal court took judicial notice of statements by government officials, on social media and to the press, acknowledging that people removed to third countries are being imprisoned and expressing an intention to continue. It found that those statements “do offer evidence that third country deportation is occurring as a punishment,” and quoted an official video in which the President said that people who remain unlawfully “face punishments, including significant jail time, enormous financial penalties, confiscation of all property, garnishment of all wages, imprisonment and incarceration, and sudden deportation in a place and manner solely of our discretion.” It also quoted a statement that people would be held at Guantanamo Bay because “it’s a tough place to get out” and “we don’t want them coming back.”

In its own policy

The memorandum of 9 July 2025 provides that where diplomatic assurances are received and the Department of State believes them credible, a person “may be removed without the need for further procedures.” Where they are not received, officers “will not affirmatively ask whether the [noncitizen] is afraid of being removed to the country of removal.”

In court, when asked

In a footnote in one case the government stated that under the current policy it is “no longer fully following” the process a federal court had required in 2019, and offered no explanation for the change.

In another, it agreed that a receiving state appeared to be violating the assurance it had given the United States, agreed that the practice “is not okay,” and said it could not prevent the consequence, because the United States “does not have the power to tell Ghana what to do.”

In court, when not asked

In five of the cases in the register the government did not answer the punitive claim on its merits at all, arguing only that the question was foreclosed by other litigation. One court recorded that this left it “with no argument from respondents to consider on this topic.” Another treated the silence as an admission, noting that under Rule 8(b)(6) of the Federal Rules of Civil Procedure an allegation that is not denied is admitted.

A note for officials

Much of what this project describes is carried out by officers applying a written policy they did not draft. The Coalition assumes, as it does throughout this site, that people who enter public service do so intending to apply the law, and that a policy issued from above is not easy to question from below. The purpose of setting the record out this plainly is so that anyone administering these removals can see what courts have said about the policy they are working under, and can see it in the decisions themselves rather than in anyone’s characterisation of them. Every one of them is linked.

Sources for this page

Nguyen v. Scott, 796 F. Supp. 3d 703, 733–34 (W.D. Wash. 2025), as quoted in Abubaka, Hambarsonpour and Baltodano; the ICE memorandum of 9 July 2025 as set out in Elshourbagy v. Bondi, 817 F. Supp. 3d 1102, 1114–15 (W.D. Wash. 2025); Abubaka v. Bondi, No. 2:25-cv-01889-RSL (W.D. Wash. 17 November 2025); D.A. v. Noem, No. 1:25-cv-03135-TSC (D.D.C. 15 September 2025); Pham v. Warden, 833 F. Supp. 3d 1092 (E.D. Cal. 2026). All in the register of court decisions.

Every document this project relies on, with a route to the full text. Nothing on these pages is summarised without the whole being available.

Decisions

All decisions cited are in the Coalition’s register of court decisions, each with its court, date, docket number, citation, judge, disposition, holding, a caution recording what the decision does not establish, and a link to the record. The decisions discussed in What the courts have done are listed there under the issue Unconstitutional punishment.

Policy documents

The Department of Homeland Security guidance of 30 March 2025 and the ICE memorandum of 9 July 2025 have not been published in full by the government. Their text is available in the parts quoted by courts, and this project quotes only from those.

Country records

The evidence about what has happened to people on arrival is held on the country guides, each with its own sources section and its own dated record.

The words this project uses

The distinctions between a finding, a report and an allegation, and the reasons the Coalition uses the words it does, are set out on the terminology page.

Corrections

If anything on these pages is wrong, the Coalition wants to know which page, which sentence, and what the document actually says. Corrections are published.