The Trump Administration has started sending some migrants to third countries. There is little transparency around these operations, but so far, the deportees seem to be people who arrived recently at the Southern border. Regardless of their nationality or potential fear of persecution, the U.S. government is sending some migrants to third countries, such as Mexico, Guatemala, El Salvador, Honduras, Costa Rica, and Panama. In most cases, the returned migrants are then sent back to their home country, but in some cases, the third countries seem willing to hold (and perhaps detain) deported migrants, at least for a while. 

Could the Administration apply this same strategy to people who have been granted Withholding of Removal (WOR) or protection under the Convention Against Torture (CAT) ?

The first thing to know is that people who have been granted WOR or CAT have been ordered deported from the United States. That deportation order is “withheld” or “deferred” as to the home country where the person demonstrates a likelihood of persecution or torture. In other words, anyone who has WOR or CAT has been ordered deported from the U.S. They just cannot be sent back to the specific country where they fear harm.

In the past, a grant of WOR or CAT basically meant you could stay in the U.S. indefinitely, since no other countries were willing to accept non-citizens on a permanent basis, and so there was nowhere for the U.S. to send WOR and CAT grantees. 

Whether that has changed or not, we do not yet know. Although Mexico and several Central American countries have agreed to accept certain migrants who are not their citizens, we do not know whether these countries would be willing to accept such people on a permanent basis, or whether they would accept deportees with criminal convictions (there are many reasons why a person might get WOR or CAT instead of asylum, but one reason is that the person has a criminal conviction which makes him ineligible for asylum). 

Assuming a third country is willing to accept them, can the U.S. legally deport WOR and CAT grantees to that country?

The National Immigration Litigation Alliance (NILA) and several other non-profits have prepared a practice advisory on this question. The first Trump Administration took the position that the government would not deport people with WOR or CAT to a third country “until after the individual receives meaningful notice of the pending deportation and an opportunity to assert a fear-based claim against removal to that third country.” In other words, under Trump-1, WOR and CAT grantees would not be removed to a third country without proper notice and an opportunity to defend against deportation by showing that they would face persecution in the third country (or, presumably, if the third country would send them back to their home country).

However, DHS “has no written policy to provide noncitizens either with notice or an opportunity to present a fear-based claim before DHS deports them to a third country where they face persecution and/or torture.” According to NILA, the absence of such a policy is “particularly concerning given the administration’s stated intention to pressure third countries to accept noncitizens ordered deported from the United States.” Put another way, NILA and the other advocacy groups fear that deporting WOR and CAT grantees to a third country may be a possibility, and the non-citizens–especially if already detained–may be informed of an imminent third-country removal with little advanced notice.

What can WOR and CAT grantees do to protect themselves? NILA has a few suggestions (see the practice advisory for more details):

• For people currently in removal proceedings, one option is to list on the I-589 asylum form all countries where the person fears persecution. This information can also be submitted into the record through testimony. 
• For detained individuals, you can inform DHS in writing of all countries where you fear removal and “demand a stay of removal and reopening if DHS intends to deport [you] to any of the identified countries.”
• If DHS has indicated an intention to deport you to a third country where you fear harm, “it may be necessary to file an emergency motion to reopen and motion to stay removal.” 

A final suggestion (my own) is to review your case with a lawyer. Maybe something has changed that would allow you to reopen your WOR or CAT case and try to get a more secure status.

In practical terms, there is no easy way to prepare in advance for deportation to a third county, especially when you have no idea where the government intends to send you. Also, for most deportees, it will be difficult to show that they face harm in a random third country. Nevertheless, it does not hurt to have a trusted family member or friend who can help contact your lawyer (or find you a lawyer) if needed and who can provide other support. 

All this is quite frightening. But perhaps WOR and CAT grantees can take some comfort in the fact that there are few countries willing to accept our deportees, and so far at least, the government is not engaged in any systematic effort to target such individuals. Also, many good organizations and people are ready to challenge such removals and to preserve our country as a safe haven for those in need of protection.