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Third-Country Removals

The Law

The rules governing removal of a protected person to a third country, as the statutes, regulations, treaties and decided cases state them, in nine parts, ending with what no court has decided.

This section sets out the law as the statutes, regulations, treaties and decided cases state it. It reports holdings; it does not argue for outcomes. Where the law is settled it says so. Where a question has not been decided, the ninth part says that, because the honest map of this subject has as many open questions as closed ones. Every authority is listed with a link under Sources.

Contents: 1. The protection · 2. The power to remove to a third country · 3. The limits · 4. Diplomatic assurances · 5. Detention while a country is sought · 6. Notice and the opportunity to be heard · 7. Which court can hear it · 8. Proving what will happen · 9. What no court has decided

1. The protection

Protection under the Convention Against Torture takes two forms in United States law, withholding of removal and deferral of removal, and both rest on the same finding: that it is more likely than not the person would be tortured if removed to the proposed country.1 Torture is defined by regulation as severe pain or suffering, physical or mental, intentionally inflicted for a proscribed purpose by or with the consent or acquiescence of a public official; acquiescence includes willful blindness.2 No connection to a protected ground is required.

Withholding is barred for persons who persecuted others, were convicted of a particularly serious crime and are a danger to the community, committed a serious nonpolitical crime abroad, or are a danger to national security.3 Where the burden of proof is met but a bar applies, the immigration judge must grant deferral.4 Deferral is temporary, confers no status, and leaves the government’s detention authority in place subject to custody review.5 It can be terminated only through a prescribed procedure: new evidence, notice, and a fresh hearing before an immigration judge, with protection continuing if torture remains more likely than not.6 A protected person’s own request to be returned cannot end the protection unless the judge is satisfied the request is knowing and voluntary.7

The Supreme Court has held that factual challenges to a decision on protection under the Convention remain reviewable in the courts of appeals notwithstanding the provisions that limit review for persons with certain criminal convictions.8

2. The power to remove to a third country

Both forms of protection are country-specific. The regulation provides that nothing in it shall prevent the Service from removing an alien to a third country other than the country to which removal has been withheld or deferred.9 The Supreme Court has described withholding as preventing removal to the protected country rather than removal from the United States.10

Congress set out a hierarchy of countries to which a person may be removed, ending in a residual category reached where the earlier options are impracticable, inadvisable or impossible.11 The Supreme Court has held that the residual provision permits removal to a country without the advance consent of its government.12

Two decisions of the Board of Immigration Appeals govern how the power is exercised. The Board has held that where there is no final order of removal that can be executed, the Department of Homeland Security has no authority to remove a person to an alternative country, and that a judge granting withholding must include an explicit order of removal.13 And the Board has held that where the Department states that a person may be removed to a particular country, the person may seek withholding of removal from that country in withholding-only proceedings, even if it differs from the country originally designated.14

3. The limits

Article 3 of the Convention prohibits a State Party from expelling, returning or extraditing a person to another State where there are substantial grounds for believing he would be in danger of being subjected to torture. The Committee against Torture treats the prohibition as absolute.15 Congress implemented it in the Foreign Affairs Reform and Restructuring Act of 1998, declaring it the policy of the United States not to expel, extradite, or otherwise effect the involuntary return of any person to such a country.16

The Committee against Torture has applied Article 3 to a transfer through an intermediate country. In Turhan v. Sweden, decided in November 2024, Sweden proposed removing a Turkish national to Kosovo. Kosovo was not characterised as a country where he would be tortured; the Committee found that Sweden would nonetheless violate Article 3 because there was a foreseeable, real and personal risk that Kosovo would transfer him onward to Türkiye, where he faced torture.17 In 2026 United Nations special procedures addressed the United States programme directly, stating that a protected person must never be removed to another State from which they may subsequently face removal to a third State where torture is foreseeable, and naming the concept indirect or chain refoulement.18 The Office of the High Commissioner for Refugees separately defines constructive refoulement as the deliberate creation of legal, material, economic or physical conditions that leave a protected person no meaningful choice but return to danger.

Decisions of treaty bodies are not binding on United States courts, and the Convention is not self-executing. They are evidence of the meaning of the obligation that FARRA was enacted to implement. The D.C. Circuit has construed FARRA’s judicial review provision narrowly, holding that it provides for review of conditions in the receiving country only in the immigration context, for aliens seeking review of a final order of removal.19 That construction excludes extradition and military transferees. It places persons with final orders of removal, which is to say the people this project concerns, on the side of the line where review is available.

Congress addressed transfer to third countries directly in a different setting. The asylum statute permits an applicant to be sent to a third country only under a bilateral or multilateral agreement, where the person would not face persecution there, and where he would have access to a full and fair procedure for protection.20 That provision does not govern removal after a final order, which proceeds under a separate section. It shows what Congress required of a third-country transfer when it legislated for one expressly.

4. Diplomatic assurances

The regulations permit the Secretary of State to obtain assurances from the government of a receiving country that the person will not be tortured there. Where the Executive determines those assurances sufficiently reliable, the immigration judge, the Board and the asylum officer do not further consider the claim.21 An assurance found reliable therefore does not enter the adjudication as evidence to be weighed; it takes the place of the adjudication.

The Third Circuit has held that a person already granted deferral is entitled to due process before it is terminated on the basis of assurances, and that termination without an opportunity to test their reliability violated the Due Process Clause. The court described the process required as an opportunity to present, before a neutral and impartial decisionmaker, evidence and arguments challenging the reliability of diplomatic assurances proffered by the Government, and the Government’s compliance with the relevant regulations, together with an individualised determination on a record disclosed to the person.22 The decision has not been overruled, limited or distinguished. The Ninth Circuit, in an extradition case, took a narrower view, holding that the inquiry ends once a properly signed declaration from the Secretary of State is received.23

International bodies have found assurances insufficient against a known risk. In Agiza v. Sweden the Committee against Torture found a violation of Article 3 where Sweden had removed a person to Egypt on assurances that he would not be tortured; in Alzery v. Sweden the Human Rights Committee held that the content, enforcement, reliability and monitoring of assurances all bear on their weight.24 The Committee against Torture’s General Comment No. 4 warns that assurances must not be used as a loophole to undermine the prohibition.25

An assurance that a receiving state will not torture a person says nothing about whether he will be admitted, detained, permitted to remain, permitted to work, given access to a procedure, or sent onward to the country he fled. Those are the questions on which the lawfulness of a transfer turns, and an assurance limited to torture by the receiving state’s own officials does not reach them.

5. Detention while a country is sought

After a removal order becomes final, the government may detain the person for a period reasonably necessary to bring about removal. The Supreme Court has held that six months is presumptively reasonable and that detention beyond it is permitted only while removal remains reasonably foreseeable.26 Release is on an order of supervision.27 That remedy does not depend on any finding about a third country; it depends only on whether removal is foreseeable at all.

The two rules interlock in a way that matters for a protected person. A district court has held that a person granted protection under the Convention failed in his claim for release because the government was actively pursuing his removal to a third country.28 On that reasoning the search for a receiving state is at once the thing the person fears and the legal justification for continuing to hold him while it goes on. Where the search fails, the same doctrine produces release: in 2026 district courts ordered the release of persons holding deferral where no third country was likely to accept them.29 In one case a court first dismissed the person’s challenge to a third-country designation for want of jurisdiction and, months later, ordered his release because no country would take him.30

United States courts have also addressed pressure applied to detained people to accept return. The Ninth Circuit affirmed a permanent injunction on findings that the immigration agency engaged in a pattern and practice of pressuring or intimidating detained Salvadorans to request voluntary departure to El Salvador.31 A district court has described the processing environment for detained people as inherently coercive and held waivers obtained in it to be involuntary.32 Another has noted that detained persons refused return despite the coercive pressure of incarceration.33 Against these, the Board of Immigration Appeals has held that a judge may condition voluntary departure on continued detention, and a state supreme court has treated a departure negotiated while incarcerated as voluntary.34

Inside the United States, a protected person’s request to be returned to the country of feared torture cannot be acted on unless an immigration judge is satisfied it is knowing and voluntary.35 No equivalent examination takes place after transfer, because no United States judge has jurisdiction over a person held in another country.

6. Notice and the opportunity to be heard

In a class action in the District of Massachusetts, the court entered a preliminary injunction in 2025 and final judgment on 25 February 2026 declaring that persons subject to third-country removal have a right to meaningful notice of the proposed country and a meaningful opportunity to raise a claim of fear concerning it, and setting aside the government’s third-country removal policies of March and July 2025 as not in accordance with law.36 The Supreme Court stayed the preliminary injunction in June 2025 without opinion; the First Circuit stayed the final judgment in March 2026; the appeal was argued in May 2026 and remains pending. The judgment is not in effect. The Coalition reports it as a district court’s holding under appeal.

Individual decisions have reached the same conclusion in particular cases. Courts in California and Washington have ordered, as reported, that a person holding protection may not be removed to a newly designated country without written notice and an opportunity to present a claim of fear before an immigration judge, including in cases where the fear asserted was that the new country would send the person onward to the country his protection concerned.37 One court expressly found that a screening which asked only whether the receiving country would torture the person was not a meaningful opportunity to present his claim that it would return him to the country he fled.38 In one 2026 case the court both ordered the person’s release and enjoined his removal to any third country without such process.39 Earlier authority in the District of Arizona described the Department’s affirmative obligation to make a determination regarding an alien’s claim of fear before deporting him to such country.40

In the case of a man removed to El Salvador despite a withholding order against that country, the government conceded the removal was unlawful, and the Supreme Court held that the district court’s order properly required the government to facilitate his release from foreign custody and to handle his case as if the removal had not occurred.41 The district court later ordered seventy-two hours’ written notice to him and his counsel of any intended third country before removal.

Government guidance issued in July 2025 provides, as reported, that where the United States has received credible assurances from a receiving country, removal may proceed without further procedures, and that otherwise the person is notified but not asked whether he fears the country, with an interval ordinarily of twenty-four hours and in exigent circumstances of six.42 Several courts have found that process constitutionally inadequate in the cases before them.

7. Which court can hear it

Three provisions of the immigration statute limit the jurisdiction of district courts. One removes jurisdiction over decisions to commence proceedings, adjudicate cases or execute removal orders.43 One channels questions arising from any action taken to remove a person into a petition for review in the court of appeals.44 One makes the petition for review the sole means of reviewing a final order of removal.45 The Supreme Court has held that the first of these applies only to three discrete actions and does not cover every claim connected with removal.46

The Ninth Circuit held in 2025 that the first provision did not bar a claim by a Cuban national, granted withholding against Cuba, who had been removed to Mexico, a country never designated in his order. The court treated the post-hearing selection of Mexico as a separate decision, distinct from execution of the order, and its legality as a question the court could reach.47 The decision concerned a claim for damages. Rehearing en banc was denied in June 2026 over a dissent joined by twelve judges, which argued that the panel had nullified the provision and that every other circuit to consider the distinction had rejected it.48 District courts within the Ninth Circuit have since applied the decision’s reasoning to petitions seeking to prevent a removal before it happens.49 No court of appeals has yet held that it extends that far, and the Third, Seventh, Eighth and Eleventh Circuits have taken the narrower view. A person’s ability to reach a federal district court on this question therefore depends, as the law now stands, on which circuit he is in.

Courts have also addressed the channelling provision. A district court has held that it is a judicial channeling provision, not a claim-barring one, and does not apply to claims that cannot be raised within the administrative process.50 The Ninth Circuit has held that the Board of Immigration Appeals lacks jurisdiction to decide constitutional questions.51 The Supreme Court has stated that challenges to inhumane conditions of confinement are not channelled.52 Where the channelling provisions do apply, the statute preserves review of constitutional claims and questions of law in the court of appeals: the effect is to move the forum, not to close the door.53

Two courts of appeals have held that FARRA’s judicial review restriction removes habeas jurisdiction over claims under the Convention, but each confined that holding to persons outside the immigration removal process, and each stated that persons seeking review of a final order of removal are within the review the statute allows.54 The Third and Ninth Circuits have held that the statute does not contain the clear statement needed to remove habeas jurisdiction.55 The Supreme Court has held that repeal of habeas jurisdiction requires specific and unambiguous statutory language, and district courts have held that the Suspension Clause preserves jurisdiction where removal would foreclose any other means of review.56

8. Proving what will happen

The Attorney General has held that a claim under the Convention cannot be established by stringing together a series of suppositions where the evidence does not establish that each step in the hypothetical chain of events is more likely than not to happen.57 On that formulation a claim resting on one long sequence of contingencies fails.

The Ninth Circuit has limited the rule to a single dependent sequence. Where there are multiple independent ways in which torture may occur, the adjudicator must consider their aggregate probability, and precise mathematical quantification is neither always possible nor desirable.58 In a published decision of August 2026 the same court held that an adjudicator may not demand statistical evidence of future torture that may not exist, since the regulation requires consideration of all relevant evidence.59

Courts give State Department country reports considerable deference and have described them as the most appropriate resource on country conditions, while holding that such a report standing alone cannot rebut a showing of past persecution.60 The Coalition’s country profiles link to those reports for each receiving state.

A person who already holds protection against his own country is in a different evidentiary position from an applicant starting afresh. The last step in any chain, that torture is likely in that country, has already been adjudicated in his favour and remains in force. The contested question is whether, and how probably, transfer to the intermediate country will result in his arrival there.

9. What no court has decided

The following questions are open as of 3 September 2026. No United States court has adopted, or squarely rejected on the merits, the proposition that removal to a country which will foreseeably return a person to the country of feared torture is itself prohibited; the cases that approached it were decided on jurisdictional or other grounds.61 No court has read the phrase otherwise effect the involuntary return in FARRA to reach an indirect return, and none has held that it does not. No court or Board decision has held that the regulation permitting removal to a third country is subject to an assessment of torture risk there, or that it is not. No court has held that a person’s agreement to return, given in detention in a third country, is or is not voluntary. No court has held that a grant of withholding or deferral is a protected liberty interest for constitutional purposes, though the Third Circuit has held that a person granted deferral is entitled to due process before it is terminated.62 No court has considered payments to a receiving state as evidence of whether onward removal is foreseeable. No court of appeals has applied the six-month detention rule to a person holding deferral whose third-country removal is not foreseeable; district courts have gone both ways. And no court of appeals has decided whether the Ninth Circuit’s 2025 jurisdictional holding extends to a petition seeking to prevent a removal before it occurs.

On one further question the courts have spoken, and against the theory. Three courts of appeals have held that the doctrine of state-created danger, under which a government that places a person in danger owes him a duty of protection, has no application to a claim that a person should not be removed from the United States.63 The Ninth Circuit affirmed, in 1996, an injunction against returning a government witness to a country where he faced torture, on the ground that the government’s conduct in constructing the choice he faced shocked the conscience; no court has extended that decision beyond a government witness, and the one asked to do so declined.64 The courts that rejected the doctrine did not cite it.

This page describes the law and the public record. It is not legal advice, and it is not a substitute for a lawyer. The Coalition does not represent individuals. Organisations that do are listed under Where to Find Help.

References

  1. 8 C.F.R. § 1208.16(c); 8 C.F.R. § 1208.17. § 1208.16 at Cornell; § 1208.17 at Cornell.
  2. 8 C.F.R. § 1208.18(a)(1), (a)(7). § 1208.18 at Cornell.
  3. 8 U.S.C. § 1231(b)(3)(B). § 1231 at Cornell.
  4. 8 C.F.R. § 1208.17(a).
  5. 8 C.F.R. § 1208.17; 8 C.F.R. part 241.
  6. 8 C.F.R. § 1208.17(d).
  7. 8 C.F.R. § 1208.17(e).
  8. Nasrallah v. Barr, 590 U.S. 573 (2020). Opinion (PDF).
  9. 8 C.F.R. § 1208.16(f).
  10. Johnson v. Guzman Chavez, 594 U.S. 523 (2021).
  11. 8 U.S.C. § 1231(b)(2)(A)–(E).
  12. Jama v. Immigration and Customs Enforcement, 543 U.S. 335 (2005). Syllabus at Cornell.
  13. Matter of I-S- & C-S-, 24 I. & N. Dec. 432 (BIA 2008).
  14. Matter of A-S-M- (BIA Apr. 9, 2021) [reporter citation to be added].
  15. Convention against Torture, arts. 2(2), 3, text at OHCHR; Committee against Torture, General Comment No. 4 (2017) on the implementation of article 3.
  16. Foreign Affairs Reform and Restructuring Act of 1998, Pub. L. No. 105-277, div. G, tit. XXII, § 2242(a), 112 Stat. 2681-822 (8 U.S.C. § 1231 note).
  17. Committee against Torture, Turhan v. Sweden, communication No. 1109/2021, CAT/C/81/D/1109/2021 (8 November 2024). UN Digital Library; see also Report of the Committee against Torture, A/80/44.
  18. Communication of United Nations special procedures to the United States (2026). OHCHR [reference number to be added].
  19. Omar v. McHugh, 646 F.3d 13 (D.C. Cir. 2011).
  20. 8 U.S.C. § 1158(a)(2)(A). § 1158 at Cornell.
  21. 8 C.F.R. § 1208.18(c).
  22. Khouzam v. Attorney General, 549 F.3d 235 (3d Cir. 2008). CourtListener.
  23. Garcia v. Thomas, 683 F.3d 952 (9th Cir. 2012).
  24. Committee against Torture, Agiza v. Sweden, communication No. 233/2003 (2005), Refworld; Human Rights Committee, Alzery v. Sweden, communication No. 1416/2005 (2006).
  25. Committee against Torture, General Comment No. 4 (2017) [paragraph to be added].
  26. Zadvydas v. Davis, 533 U.S. 678 (2001). Syllabus at Cornell.
  27. 8 U.S.C. § 1231(a)(3); 8 C.F.R. § 241.5.
  28. Ali v. Barlow, 446 F. Supp. 2d 604 (E.D. Va. 2006).
  29. Order in Hernandez Menendez (M.D. Fla. 2026), court document; Abghari v. Hermosillo, No. 2:26-cv-00269 (W.D. Wash. 2026), as reported.
  30. T.A. v. Sage (M.D. Pa. 2025–2026), as reported [citation to be added].
  31. Orantes-Hernandez v. Thornburgh, 919 F.2d 549 (9th Cir. 1990). Justia.
  32. Perez-Funez v. District Director, 619 F. Supp. 656 (C.D. Cal. 1985).
  33. Hamama v. Adducci, 349 F. Supp. 3d 665 (E.D. Mich. 2018).
  34. Matter of M-A-S-, 24 I. & N. Dec. 762 (BIA 2009); Commonwealth v. Al Saud, 459 Mass. 221 (2011).
  35. 8 C.F.R. § 1208.17(e).
  36. D.V.D. v. U.S. Department of Homeland Security (D. Mass.): class certification and preliminary injunction order, April 2025 (PDF); final judgment 25 February 2026, No. 25-cv-10676; DHS v. D.V.D., No. 24A1153 (U.S. 23 June 2025), respondents’ opposition to stay (PDF).
  37. Karapetyan v. Warden of Otay Mesa Detention Center, No. 3:26-cv-00697 (S.D. Cal. 10 June 2026); Kumar v. Wamsley, No. 2:26-cv-00294 (W.D. Wash. 2026); Shahi v. Noem (E.D. Cal. 27 July 2026); Esmaeili v. Noem (S.D. Cal. 2026); Khazanov v. Bullock, No. 3:26-cv-00401 (E.D. Va. 2026); all as reported [links to orders to be added].
  38. Maldonado-Lux v. Hernandez (W.D. Wash. 5 Aug. 2026), as reported.
  39. Avila Castillo v. Chestnut, No. 1:25-cv-01296-SAB-HC (E.D. Cal. 16 Jan. 2026), as reported.
  40. Ibarra-Perez v. Howard (D. Ariz. 23 June 2020), citing Aden v. Nielsen.
  41. Noem v. Abrego Garcia, No. 24A949 (U.S. 7 Apr. 2025). Cornell.
  42. U.S. Immigration and Customs Enforcement, third-country removal guidance, 9 July 2025, as described in D.V.D. filings, plaintiffs’ reply, March 2026 (PDF).
  43. 8 U.S.C. § 1252(g).
  44. 8 U.S.C. § 1252(b)(9).
  45. 8 U.S.C. § 1252(a)(5).
  46. Reno v. American-Arab Anti-Discrimination Committee, 525 U.S. 471, 482 (1999).
  47. Ibarra-Perez v. United States, 154 F.4th 989 (9th Cir. 2025). Justia; Ninth Circuit (PDF).
  48. Ibarra-Perez v. United States, No. 24-631 (9th Cir. 25 June 2026) (order denying rehearing en banc; Bea, J., dissenting). FindLaw [confirm this is the en banc order].
  49. Avila Castillo v. Chestnut, above; Yang v. Kaiser, No. 2:25-cv-02205 (E.D. Cal. 20 Aug. 2025); Perez Canet v. Blanche, 2026 WL 1091763 (D. Nev. 22 Apr. 2026); all as reported.
  50. Jimenez v. Nielsen, 334 F. Supp. 3d 370 (D.D.C. 2018).
  51. Wang Zong Xiao v. Reno, 81 F.3d 808, 814 (9th Cir. 1996); Magana-Pizano v. INS (9th Cir. 1998).
  52. Jennings v. Rodriguez, 583 U.S. 281 (2018) (opinion of Alito, J.).
  53. 8 U.S.C. § 1252(a)(2)(D).
  54. Mironescu v. Costner, 480 F.3d 664 (4th Cir. 2007); Omar v. McHugh, above.
  55. Ogbudimkpa v. Ashcroft, 342 F.3d 207 (3d Cir. 2003); Cornejo-Barreto v. Siefert, 379 F.3d 1075 (9th Cir. 2004); Garcia v. Thomas, above.
  56. INS v. St. Cyr, 533 U.S. 289 (2001); Compere v. Nielsen, 358 F. Supp. 3d 170 (D.N.H. 2019); Ragbir v. Homan (2d Cir. 2019).
  57. Matter of J-F-F-, 23 I. & N. Dec. 912 (A.G. 2006). Department of Justice (PDF).
  58. Velasquez-Samayoa v. Garland, 49 F.4th 1149 (9th Cir. 2022).
  59. Parada Calderon v. Blanche (9th Cir. 28 Aug. 2026), as reported [citation and link to be added].
  60. Hoxhallari v. Gonzales, 468 F.3d 179, 186 (2d Cir. 2006); Makaj v. Mukasey, 319 F. App’x 507 (9th Cir. 2009).
  61. Arar v. Ashcroft, 585 F.3d 559 (2d Cir. 2009); Omar v. Geren, 689 F. Supp. 2d 1 (D.D.C. 2009); Omar v. McHugh, above.
  62. Khouzam v. Attorney General, above; Khouzam v. Hogan, 529 F. Supp. 2d 543 (M.D. Pa. 2008).
  63. Kamara v. Attorney General, 420 F.3d 202 (3d Cir. 2005), Justia; Enwonwu v. Gonzales, 438 F.3d 22 (1st Cir. 2006); Vicente-Elias v. Mukasey, 532 F.3d 1086 (10th Cir. 2008).
  64. Wang Zong Xiao v. Reno, 81 F.3d 808 (9th Cir. 1996); Ramos v. Nielsen (N.D. Cal. 2018).