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.