Third-Country Deportation: How Destinations Are Chosen

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The United States can deport a person to a country other than their own. Many people sent to a third country lack citizenship, legal status, social ties or a common language there.

The people challenging this policy argue that they need meaningful notice of the destination so they can ask for protection that, if granted, would prevent removal to a country where they fear persecution or torture. The Supreme Court agreed on September 29, 2026, to decide whether the government’s guidance on third-country removals, which sets what notice a person gets before being sent, is lawful.

Who chooses the country of removal?

Federal law permits destinations tied to past travel, residence or birthplace and, in specified circumstances, another country willing to accept the person, known as a third country.

Under the Immigration and Nationality Act, people found inside the United States who are ordered removed generally must be sent to the country they designate, typically their home country, or, if that is not possible, to another country to which they have a connection. So the person gets the first say, and the Department of Homeland Security (DHS) turns to the alternatives the law lists, in order, if that country is ruled out.

The statute has two branches. One applies only to people placed in removal proceedings immediately on arrival at the border, the Supreme Court has explained; this article calls it the arrival branch. The other, the ordinary branch, covers anyone else who has been ordered removed, including people who were allowed into the country.

The ordinary destination sequence

The ordinary branch runs in four steps, and the government can move past a step only on the conditions the statute sets.

First, the person may designate one country, and the government must remove them there unless the statute provides otherwise. A country bordering the United States, an adjacent island, or an island adjacent to a bordering country can be designated only if the person is a native (a person born there), citizen, subject or national of it, or has lived there.

The government may disregard the designation if the person does not make it promptly, if the country does not give a final answer within 30 days of being asked whether it will accept the person, if the country is unwilling to accept them, or if the government decides that removal there would be harmful to the United States.

Second, if the person is not removed to the designated country, the government must remove them to a country of which they are a subject, national or citizen. That step does not apply if the country’s government is unwilling to accept the person or does not give a final answer within 30 days of first being asked, or within another period DHS considers reasonable.

Third, if the person is not removed under the first two steps, the statute directs removal to any of six countries connected to the person. These connections can arise from travel, residence or birth, so they need not all point to the country of citizenship.

• The country from which the person was admitted to the United States.
• The country containing the foreign port from which the person left for the United States or for an adjoining foreign territory.
• A country where the person lived before entering the country from which they entered the United States.
• The country where the person was born.
• The country that had sovereignty over the birthplace when the person was born.
• The country containing the birthplace when the person is ordered removed.

In Jama v. Immigration and Customs Enforcement, decided January 12, 2005, the Supreme Court described these six clauses as permitting removal to any one of them. The birthplace-related clauses account for borders and sovereignty that can change between birth and removal.

Fourth, and only if removal to each of those six countries is impracticable, inadvisable or impossible, the statute allows another country whose government will accept the person. This is the step that can send a person to a third country, one with none of the listed connections to them.

More than one nationality need not point to a single country at the second step, and having no nationality does not take away the third-step countries.

A separate rule applies when the United States is at war and the government decides the war makes ordinary removal impracticable, inadvisable, inconvenient or impossible. The government may then, on conditions the statute sets, send the person to a country hosting their home government in exile, to a country very near the home country or, with the home government’s consent, to another country.

Why a receiving country’s consent is not always required

Whether the destination must agree depends on the step. The statute spells out the consequence of a country’s refusal at the first, second and fourth steps; Jama concerned the third.

Keyse Jama declined to designate a country, and an immigration judge ordered him removed to Somalia, his country of birth and citizenship. He argued that Somalia had no functioning government and therefore could not consent in advance to his removal. Somalia had not told the government it was willing to receive him, so the second step, removal to a country of citizenship, did not require the government to send him there. The question was whether the government could still send him to Somalia at the third step, as his country of birth, without Somalia’s consent.

The court ruled against Jama: the majority held that the six third-step clauses contain no acceptance requirement, while the fourth step expressly does. It also reasoned that each clause ends with a period and can be understood independently.

The removal provisions discussed in Jama were added by the Illegal Immigration Reform and Immigrant Responsibility Act of 1996.

Jama and the dissent argued that acceptance must be required at the third step so the government could not sidestep the second step’s acceptance rule when a third-step country is also the country of citizenship. The majority rejected that argument, noting that the two steps overlap only imperfectly: in Jama’s case, several of the third-step clauses described Kenya, not Somalia. The majority also rejected the claim that Congress, when it rewrote the removal procedure, had silently approved a settled court reading that required acceptance. The rewritten procedure was built from two older provisions, it said, and only one of them had been read that way.

Justice Souter’s dissent, joined by Justices Stevens, Ginsburg and Breyer, read the final clause’s words, “another country whose government will accept the alien,” to mean that any country in the six preceding clauses must also be willing to accept the person. The dissent also pointed to earlier law understood to require a receiving country’s acceptance and to two House reports stating that the rewrite was not meant to change substantive law.

Officials are not forced into futile removals, the majority said: at each step they may skip a country that resists accepting the person or that has declined to give assurances that its border guards will let the person in. A country’s refusal, it said, may be one factor in deciding that removal there is impracticable or inadvisable, but it is not an automatic legal bar.

A different branch for people arriving

For a person who is placed in removal proceedings on arriving at the United States, the first destination is generally the country where they boarded the vessel or aircraft that brought them here. Here the trip, not the person’s choice, supplies the first destination.

The rule differs when the last leg of the trip began at a nearby connecting stop. If the person boarded in a territory bordering the United States or on a nearby island, and is not a native, citizen, subject or national of that place or does not live there, the statute directs removal to the country where they boarded the vessel that took them to that territory or island.

If the initial country is unwilling to accept the person, the arrival branch allows alternatives based on nationality, birthplace or residence. Its final fallback requires a willing receiving government and applies only if removal to each earlier alternative is impracticable, inadvisable or impossible.

What a removal arrangement adds

The statute says where U.S. law allows a person to be sent. A removal arrangement is something else: an understanding with another government about taking people the United States proposes to send.

In an August 24, 2026 report, the Congressional Research Service said DHS had not published a total for third-country agreements or removals; it cited an estimate by the advocacy groups Refugees International and Human Rights Watch of more than 21,000 removals through formal or informal agreements with more than 30 countries during the second Trump administration.

Dominica’s government said on January 8, 2026, that it had agreed to a non-binding arrangement, still being finalized, under which it would receive, at its sole discretion, third-country nationals being removed from the United States. Dominica reserved the right to decline any proposal, reject an individual based on criminal history, and receive relevant medical or criminal records in advance where permitted by law. Either government could discontinue participation through written diplomatic notice.

Destination authority does not settle protection or the pending case

Whatever the destination rules allow, the statute bars removal to a country if the government decides the person’s life or freedom would be threatened there because of race, religion, nationality, membership in a particular social group or political opinion. That protection does not apply if the government decides that the person participated in persecuting others on those grounds; that the person, having been convicted by a final judgment of a particularly serious crime, is a danger to the U.S. community; or that there are serious reasons to believe the person committed a serious nonpolitical crime abroad before arriving. Nor does it apply when there are reasonable grounds to believe the person is a danger to U.S. security, or to a person deportable for participating in Nazi persecution, genocide, torture or extrajudicial killing. So a country can be an eligible destination under these steps and still be off limits for a particular person.

Protection under the Convention Against Torture is separate: a person who shows they are more likely than not to be tortured in the proposed destination is entitled to protection from removal there.

Even a person barred from withholding of removal, the form of protection that blocks removal to that country, must receive deferral of removal there if they qualify for torture protection.

A case now before the Supreme Court, Department of Homeland Security v. D. V. D., concerns the procedures the government follows before sending a person to a third country. DHS guidance, as the department described it in a Supreme Court filing, allows removal without further procedures when the destination country has given credible assurances that people sent there will not be persecuted or tortured. When a country has not, the filing says, DHS must first tell the person of the destination and give them an opportunity to express a fear of persecution or torture there, and it will generally wait at least 24 hours after serving the notice before carrying out the removal. If the person does express such a fear, the filing says, an immigration officer will conduct a prompt screening. Under the guidance, the screening asks whether persecution on a protected ground or torture is more likely than not; a person who fails that test will be removed, while one who passes is referred for immigration-court proceedings or ICE seeks to reopen their proceedings, unless ICE chooses another destination. The department also told the court that a country willing to accept the person may be selected even if it was not listed in the person’s removal order.

The government argues that deciding whether foreign assurances are adequate is a foreign-policy judgment, that adequate assurances make further individual procedures unnecessary, and that notice and screening satisfy due process when there are no adequate assurances.

The plaintiffs, identified in court papers as D.V.D. and others, argue that the guidance cannot be reconciled with the removal statute and a 1998 law that, they say, prohibit removal to any country where a person faces likely persecution or torture. They say the guidance permits removal to a newly selected third country without meaningful notice of the destination or a meaningful opportunity to raise a fear claim specific to that country.

On February 25, 2026, the U.S. District Court for the District of Massachusetts ruled for the plaintiffs, declared their right to meaningful notice and an opportunity to raise a country-specific claim before third-country removal, and set aside the challenged guidance as unlawful. The government asked the Supreme Court to stay that ruling, and on September 29, 2026, the court did. It also agreed to hear the case and directed briefing on jurisdiction, the district court’s authority to grant classwide relief, and whether the government’s third-country removal guidance violates the removal statute, due process or anti-torture law. Justices Sotomayor, Kagan and Jackson would have denied the stay. The stay allows the government to use the challenged guidance while the Supreme Court considers the case, without settling whether that guidance is lawful.

The Court directed a schedule allowing argument in December 2026, and its stay lasts until the Supreme Court’s judgment is sent down.