Deporting to Danger: A Process-Based Framework for Reviewing Third-Country Removals
When the government removes a noncitizen with a final deportation order to a third country—one they may never have visited and to which they have no ties—it currently does so based on diplomatic assurances that an immigration officer deems credible. Individuals receive no notice of their destination, no opportunity to present evidence of feared persecution or torture, and no explanation of the government’s safety determination. The Trump administration claims that these decisions are entirely unreviewable by courts, invoking broad executive authority over removal and foreign affairs.
This Comment argues that complete unreviewability cannot stand on two independent grounds. Section 1231(b)(3) of the Immigration and Nationality Act creates a categorical, mandatory prohibition on removal to danger—and settled statutory entitlement doctrine requires courts to have power to enforce mandatory congressional commands rather than construe them as nullities. The plenary power doctrine, however broad, does not eliminate that review. Applying the Mathews v. Eldridge balancing test confirms that the constitutional floor lies above zero: The severity of potential harm, the near-total absence of documented process, and the minimal burden that documentation would impose all demand, at minimum, notice and a meaningful opportunity to present evidence.
Having established that some review is required, this Comment draws on the Convention Against Torture (CAT) extradition framework—the closest legal analogy to third-country removal—to supply its content. Courts should apply process-based review, asking whether the government (1) identified the destination country; (2) consulted relevant country-conditions evidence; (3) assessed whether the alien’s protected characteristics create heightened risk there; and (4) explained the basis for its safety determination. This framework asks whether the government engaged in reasoned decision-making, not whether it reached the right conclusion—respecting executive authority over foreign affairs while ensuring that § 1231(b)(3)’s prohibition retains operative force. D.V.D. v. Department of Homeland Security, now on appeal before the First Circuit, presents the vehicle for adopting this approach.