The Trump administration is trying to deport more migrants to countries other than the ones they came from, including war-torn and unstable nations like Libya and Ukraine. One court case could determine whether undocumented immigrants can do anything to stop it.
The case, currently being heard by a district court in Massachusetts, concerns what due process rights migrants in the country illegally have once they receive a deportation order and what steps the government must take before sending them to a third country if their home country won’t take them.
Experts say these “third country” deportations have happened for years, but not with the same frequency as under the Trump administration, and it’s pushing due process into a gray area.
One such third country is Libya, which has been accused of letting militia groups run work camps for migrants that have become centers for indefinite detention and torture.
“It’s permissible to send people to third countries, but in the past, we wouldn’t have done this kind of scenario, and third-country removals were very rare,” said Aaron Reichlin-Melnick, an immigration lawyer and senior fellow at the American Immigration Council. “What we’re seeing is the Trump administration trying to take advantage of areas of the law that were underdeveloped to ram through this due-process-free deportation.”
The Department of Homeland Security did not respond to a request for comment.
Libya is in the middle of a conflict where two separate governments say they have control of the country, and militias run migrant camps where human rights groups say people are held indefinitely, tortured or sold into forced labor. The administration tried to send a group of undocumented people there earlier this month. It’s also pressured Ukraine to take undocumented people from other countries, despite the ongoing war with Russia.
The case before the Massachusetts district court involves immigrants the administration is seeking to deport to third countries, including Libya. The attorneys representing those immigrants allege their clients have not received due process.
“Absent the protections provided by the district court, these individuals would not have due process,” said Trina Realmuto, executive director of the National Immigration Litigation Alliance, who is representing some migrants the administration is trying to send to third countries.
The case has become a class action combining those of several people whom the administration tried to deport, including some who refused to go to Libya, several people who were sent to prison in El Salvador and some who were sent to Guantánamo Bay.
On Friday, a circuit court upheld the restrictions put in place by the district court, and the judges signaled concern over the administration’s hasty deportations and the “irreparable harm that will result from wrongful removals in this context.”
Reichlin-Melnick called the law on third-country deportations “murky” because it doesn’t provide specific guidelines. The United Nations Convention Against Torture, which the U.S. has implemented into law, mandates that no person be sent to a country where they could face torture or persecution.
Because of that, undocumented people are supposed to be given an opportunity to raise a credible fear concern, which a judge would then make a determination on. That’s why Kilmar Armando Abrego Garcia, the wrongfully deported Maryland man, was not supposed to be deported to El Salvador, even though he could have been deported elsewhere.
“There is strong evidence that the Trump administration was proceeding forward with these plans without any intent to allow people to raise a screening and direct violation of a court order,” Reichlin-Melnick said, which is part of why the judge in the case halted the deportations. “We have seen the administration already adopt a number of positions that show that they’re not really interested in full due process for everybody, making sure all the procedures are followed, and these Libya deportations are a good example.”
It’s still legal for the administration to send people to Libya, but now the court has ordered that they have to communicate to people in a language they understand where they will be sent and give them several weeks to raise concerns. Changes have to be communicated to any lawyers representing migrants as well.
Realmuto said she’s still worried. It will fall on ICE to give migrants the proper information. The department has already admitted another mistake — after alleging that a Guatemalan man being deported to Mexico was given an opportunity to claim credible fear, they later said in court filings that he may not have.
“ICE was telling people they had to sign,” Realmuto said of the people whom the administration attempted to send to Libya, who said they were pressured to agree to the deportations. “They’re not providing notice, and we don’t believe that they’re affirmatively asking people if they have a fear, and we don’t believe that they have a reasonable fear process that is being applied.”
Even if the administration gives people plenty of time to raise concerns, she said the law doesn’t protect migrants from going to dangerous countries. That means the administration could still send people who may not understand what they’re agreeing to.
“It’s not quite fair. Not everybody knows what’s happening in Libya,” she said. “There is no one category in that statute that says that you can’t deport to countries that are engaged in massive human rights and civil rights violations. You would hope that that would be a policy decision of the United States, and I think for most administrations, it long has been.”
Because the administration is trying to push the limits of due process, it’s up to the courts to put those limits in place if a judge thinks they’re needed. Whether judges put further protections in place, barring migrants from going to certain countries with a consistent pattern of human rights violations, remains to be seen.
“If it’s an extremely poor country, an extremely violent country, those are not legal factors,” said George Fishman, former deputy general counsel at DHS and senior legal fellow at the Center for Immigration Studies, which favors low levels of immigration. “Some courts have pushed the boundaries on whether a fear of generalized violence counts as persecution, but generally it doesn’t.”
Fishman noted that the Trump administration had tried to push the interpretation of previous rulings that mandated people be notified in advance if they were being sent to a third country. The administration had given people less than a day, which the court has now said is “not going to cut it.” He said if the courts want to push it further, to protect migrants from going to unstable countries, it would last “until the Supreme Court rules on the particular issue, or the Supreme Court decides to limit the ability of district courts to issue nationwide injunctions.”
Some lawyers speculated that the third-country removals were another attempt to get people out of the country without full due process. If a person’s home country wouldn’t take them back, some were able to stay in the U.S. for years. Deporting them elsewhere would help the administration boost its deportation numbers. Fishman also said it could work as another deterrent.
“If you don’t self-deport and you’re gonna go into removal proceedings, and you’re ordered removed, you may go to a country you really, really don’t want to go to,” he said.
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Casey Murray is a NOTUS reporter and an Allbritton Journalism Institute fellow.