President-elect Donald Trump is reportedly considering deporting some immigrants to countries other than their own. If he tries to do so, it won’t be the first time. Like before, however, he would probably face legal challenges.
According to NBC News, Trump is considering sending immigrants whose home countries will not accept US deportees to third countries including Turks and Caicos, the Bahamas, Panama, and Grenada. Currently, many immigrants from so-called “recalcitrant countries” are simply released into the US since there is nowhere to send them.
It’s not immediately clear what legal mechanism Trump intends to rely on to carry out these deportations to third countries. A representative for the Trump transition team did not respond to a request for comment. A regulation and a law currently give the executive branch some ability to deport immigrants to third countries; however, the legality of both is an open question.
During his first term, Trump previously sought to use executive power to send asylum seekers of various nationalities to Guatemala under what he called an “Asylum Cooperative Agreement.” Under the agreement, migrants who passed through Guatemala before arriving in the US were sent back if they did not first seek protection there. The ACLU filed a lawsuit challenging the policy, but that suit was never resolved: The government stopped enforcing the policy during the pandemic and President Joe Biden was elected.
The rule remains on the books, however. If Biden does not rescind it before he leaves office, the incoming Trump administration could use it to deport people to the countries under consideration — if it survives in court, and if the US can broker similar agreements with those countries.
Alternatively, Trump could try to invoke federal immigration law allowing the removal of immigrants to third countries in certain circumstances, such as when they cannot be returned to their country of origin and the third country is deemed to be safe for them. The ACLU has challenged Biden’s use of this law to fast-track deportations of Venezuelans to Mexico without their consent. The outcome of the lawsuit may determine the kind of powers Trump may have to carry out his plans.
Either way, the Trump administration would have to ensure that immigrants would be sent to a country where they will be safe, as is required under US and international law.
“Folks are supposed to be safe from persecution and torture and [any] procedure has to include adequate screening for fear of return and a fair process,” Katrina Eiland, deputy director of the ACLU’s Immigrants’ Rights Project, said. “To the extent [the Trump administration is] incentivized to take shortcuts, that’s a huge problem and something that the ACLU and other allies I’m sure would be prime to sue over.”
Recalcitrant countries, briefly explained
The US had designated 13 countries as recalcitrant as of 2020, including Russia, China, Cuba, and Iran. It has not publicly updated that list in the years since,