Abstract

Excerpted From: Matthew Boaz, The Odyssey of Third Country Removal, 70 St. Louis U. L.J. 605 (Summer 2026) (Full Document) (244 Footnotes Omitted)

In February 2025, a hotel in Panama became a focal point for international media when a group of several hundred asylum seekers from countries such as Iran, Turkey, Nepal, Afghanistan, and Sri Lanka were suddenly sent there from the U.S. without legal recourse or notice of their destination. The majority of the migrants agreed to repatriation to their home countries, but a significant number remain, seeking to navigate an asylum system that seems intent on denying relief, with few other options available.  A short time later, a similar cohort arrived in Costa Rica with an eerily familiar tale to tell.3 But public outcry  rose to a fever pitch following the removal of nearly 300 individuals to the Centro de Confinamiento del Terrorism (“CECOT”), a beyond-maximum-security prison, located in El Salvador. Even more striking was that the removals occurred during court proceedings seeking to prevent the planes from taking flight, and that they relied upon the Alien Enemies Act (“AEA”), an antiquated, centuries-old law that had not been utilized since World War II. The Fifth Circuit Court of Appeals later found that the invocation of the Act was unlawful in the circumstances,6 but not before months of dithering by the administration7 resulted in the imprisonment of hundreds of people by a foreign power at the behest of the U.S. government. The case remains pending after the full Fifth Circuit reheard the matter en banc in January 2026. The eventual release of those individuals and their subsequent return to Venezuela confirmed the allegations of torture and other mistreatment that many experts expected were occurring in the prison.10

Since that time, the Trump administration has sought to form agreements, both formal and informal, with dozens of countries across the globe. While *607 some, such as Nigeria and Ukraine, have declined to participate, others have expressed willingness to participate in exchange for significant sums of money and the fleeting good favor that frequently follows any “deal” struck with the president. Eswatini struck just such a deal to receive ten million dollars, though it first asked for 500 million dollars, to detain 150 future deportees. It initially imprisoned five men, originally from Cuba, Laos, Vietnam, and Yemen, who were sent from the U.S. So far, it has received fifteen individuals at a total cost to the U.S. of $5.1 million, or approximately $433,000 per person. Separately, Panama, may have agreed to accept the first removals in February in order to calm rhetoric from President Trump that focused on reasserting control over the Panama Canal. The details of many of these agreements remain disputed, and lawsuits seeking to intervene have been the primary source for obtaining illuminating details about how these accords function. As for whether these *608 agreements transgress the boundaries of domestic or international law, the devil is in the details.

This essay discusses the case of one individual, Kilmar Ábrego García, and how his story exemplifies the odyssey into which many noncitizens have been cast during the first year of the second Trump administration. Specifically, this essay focuses on the amplified use of third country removals as part of a mass deportation campaign. This essay sounds the alarm that these third country removals are likely to become more expansive because of the rapidity of the removal process, the vulnerability of affected populations, and the unwillingness of courts to intervene after the fact.

Third country removals, as they currently function, pose a real threat to noncitizens and citizens alike. Despite former Department of Homeland Security (“DHS”) Secretary Kristi Noem’s protestations that no U.S. citizens have been detained or arrested, instances of such conduct number into the hundreds during the first year of the second Trump administration. Past administrations have also, by error, arrested, detained, and deported U.S. citizens. Because the present process provides a singular mechanism to prevent removal--asserting fear of removal to a specific place--with no review, an asylum officer or Immigration and Customs Enforcement (“ICE”) officer is frequently the only person who stands between an individual and removal. Under the current administration, pressure on officers, immigration judges, and Board of Immigration Appeals (“BIA”) judges has eroded any remaining confidence that these officials employed by the U.S. Department of Justice (“DOJ”) or DHS could act in a neutral fashion as arbiters and independent decision makers.

In response to calls for creating a remedy for its wrongdoing, the U.S. alleges an inability to intervene in the affairs of foreign nations, even when it is responsible for the arrangement. The Supreme Court has seemed skeptical of this argument on at least one occasion, but intervention is not promised. Once a person has been expelled, the government knows that individual’s rights are *609 nearly nonexistent. The government claims no remedy and the courts, reluctant to interfere in foreign affairs or national security, defer to the government. However, local communities have been steadily intervening to help prevent detentions of their noncitizen neighbors, and legal actors have been successfully employing various forms of litigation to push back on these efforts. There may yet be a resistance that can adequately respond to these draconian measures.

[. . .]

Over the past fifteen months, the Trump administration has relied on inventive strategies in support of its ultimate and unreasoned goal of deporting one million people from the U.S. before the end of the fiscal year.2 One mechanism that the administration is relying ever more heavily upon is “third country removal,” wherein an individual is sent to a nation with which they have no status or connection. These removals sit at the vanguard of illegality and run contrary to domestic law and international obligations to which the U.S. is a signatory. While some third country removals are permissible, the way the present administration is utilizing a substantial proportion of these removals, including as cudgels to induce guilty pleas in federal criminal proceedings,fall far outside the bounds of lawful use. Importantly, the danger presented in the AEA cases, of U.S. citizens being sent to foreign prisons without legal recourse, remains ever present with the use of third country removals. The  Supreme Court has already ratified the practice on one occasion, and federal courts, too, seem to be acquiescing to the government’s fervent desire to build up a network of willing countries to which it can send people with no connection to those places. Without some forms of intervention, the bounds of this practice appear to be limitless.

The U.S. has long relegated immigration policy and enforcement to the exclusive control of the federal government. Yet, the idiosyncrasies of the country’s vast population and diverse regional needs bode in favor of a more nuanced and individualized approach. Years of congressional and executive action have focused on broad scale efforts to deter unlawful entry and limit long-term options, reacting in unpredictable and sometimes confusing ways to various emergent crises on a case-by-case basis. For nearly two decades, the political messaging has resounded with a call for “securing the border” before any new meaningful pathways are created. At the same time, through executive action, each presidential administration has sought to remedy some small part of the immigration system, doing their level best to act in some way during a prolonged period of congressional gridlock. The result has been stagnation, with national discourse revolving around whether the border is porous and how much money should be devoted to securing it.

The U.S.’ efforts to meet lofty deportation goals have led to indiscriminate violence, and the appearance of--if not outright authoritarian *633 repression. The targeting of students, day laborers, and, allegedly, anyone who appears “to be Latino” or “an immigrant”228 has elevated the fear that noncitizens experience each day. The idea that removing people from their communities is harmful no longer rests at the margins, as major politicians decry the effects that mass deportation will have in the communities of their constituencies. In fact, many of these places extol the virtues of migration and praise their new community members who happen to be non-citizens.

In conclusion, the increase in third country removals presents a significant legal problem. As Justice Sotomayor wrote in her dissent from one of the relevant decisions, “[t]he government has made clear in word and deed that it feels itself unconstrained by law, free to deport anyone, anywhere without * notice or an opportunity be heard.” The magnitude of transgression is, for many advocates, nearly impossible to comprehend, let alone mobilize against. It is designed to promote terror and the threat of punishment. Of those who do intervene, the government seems willing to marshal its resources in favor of retribution. Courts seem to be the last bulwark against these abuses, but even they are unable to intervene in some cases.

However, all is not lost. There are several observable weaknesses to this approach of third country removals. First, many of the third countries are charging an inordinate amount of money to participate in these deals.236 When they do participate, backlash within their own borders is severe.This dynamic is not unique to the U.S. In the European Union, an agreement with Turkey in 2020 came under strain as that country’s president demanded more money to enforce Europe’s “external borders.” The region later delegated interventions to several North African countries and even non-state actors, but some countries have demanded more money for these efforts.239 Second, litigation efforts that impede the easy removal of individuals to third countries have proved successful *635 on many fronts. At the individual level, habeas corpus petitions have become a useful tool for obtaining release from detention and in preventing swift removal without an opportunity to demonstrate one’s fear of deportation to an unknown country. Most of this individualized litigation has focused on ensuring proper procedure is followed, but amicus briefs in several high profile cases have also homed in on major substantive issues with the third country removal policy. In the case of Àbrego García, amici filed a brief identifying possible Eighth Amendment violations, arguing that third country removals are being employed as punishment, a violation of the Constitution’s bounds on civil immigration enforcement.242 In another case pending before the First Circuit Court of Appeals, amici have highlighted the regulatory requirements for individualized determinations, noting that third country removal policies, as a whole, and when applied broadly, are likely violative of the regulations as written. Finally, at the local level, pushback to the president’s mass deportation agenda continues to grow within the U.S. Cities such as New Orleans, Charlotte, Chicago, and Los Angeles, for example are learning from each other and implementing communal strategies to inhibit these detentions and removals that violate due process.244 With a strategy of individual representation, class action lawsuits, and local resistance, the friction may be enough to slow down these efforts so that they can be properly adjudicated on the merits before the Supreme Court.

Assistant Professor, University of Kentucky J. David Rosenberg College of Law; J.D., Georgetown University Law Center.