A Protection Paradox: U.S. Accused of Outsourcing Torture Risk for Immigrants

SAN FRANCISCO — An immigrant, after fleeing threats of brutalization in his native country, convinces a U.S. immigration judge of a stark truth: if deported home, he will more likely than not be tortured. He wins deferral of removal under the Convention Against Torture (CAT). The relief is fragile, but real. Then it is abruptly reframed. Instead of being released, he is shackled for a flight not to his homeland but to somewhere else: Uganda, El Salvador, or South Sudan. He has no lawful status there and no ties. The receiving state’s record on torture is—at best—ambiguous. At worst, it is notorious.

That scenario is not theoretical. It is the practical endpoint of a renewed federal practice: third-country removals of individuals who already proved a likelihood of torture in their designated country of removal. The government’s position is plain: CAT deferral is country-specific and does not prevent removal to another nation willing to accept the person. The statutory and regulatory levers exist, and the executive intends to use them. Advocates, however, contend that reading is cramped and dangerous, at odds with non-refoulement and with basic due process. In the Ninth Circuit—particularly California’s district courts—those arguments carry weight.

This article undertakes a comprehensive analysis of the legal framework; the Supreme Court’s shadow-docket intervention this summer; controlling Ninth Circuit and California district court authority on notice, process, and jurisdiction; and, most importantly, remedies. The core question is not whether the executive may ever remove a CAT deferral recipient to a third country. The question is how; under what process; and what a federal court can still do—despite jurisdiction-stripping provisions in 8 U.S.C. § 1252—to permanently protect a single client from an unlawful transfer. The solutions exist. They are narrow, exacting, and must be executed with precision.

I. Statutory and Regulatory Architecture

The removal statute, 8 U.S.C. § 1231(b), directs DHS to remove a noncitizen with a final order to the country of nationality or citizenship; if that is “impracticable, inadvisable, or impossible,” the statute authorizes removal to a sequence of alternate countries willing to accept the individual, and, in some circumstances, even without prior consent.¹ ² The implementing CAT regulations simultaneously prohibit removal to a country where torture is more likely than not and—crucially—say that “nothing in this section… shall prevent the Service from removing an alien to a third country other than the country to which removal has been withheld or deferred.”³ ⁴ This text is the hinge: it preserves executive flexibility while respecting the non-refoulement bar to the specific country of torture.

Historically, third-country removals of CAT/withholding grantees were rare. Most CAT recipients lived here under supervision because foreign governments would not accept them or because DHS, as a matter of practice, did not pursue speculative transfers. That baseline shifted in 2025, when ICE began systematically reviewing deferral cases to identify re-detention and third-country options. Litigation followed immediately, and within weeks a federal court issued a TRO and then a preliminary injunction requiring notice and an opportunity to raise fear of persecution or torture before any third-country removal.⁵ ClearinghouseAILA

The Supreme Court stayed that injunction on June 23, 2025, permitting removals to resume pending appeal.⁶ As is customary with emergency stays, the Court provided no merits opinion. But nothing in the order forecloses individualized relief. In the Ninth Circuit, that distinction is dispositive. SCOTUSblog

II. Government’s Theory of the Case

The executive’s reading is textualist. CAT deferral bars removal to Country A; it says nothing about Country B. Section 1231(b) empowers DHS to designate alternative countries. Jama v. ICE confirms that prior consent from the receiving country is sometimes unnecessary.⁷ In the government’s view, CAT is not a lawful status; it is a country-specific bar. If another country can be found—or persuaded, politically or diplomatically—to take the person, the INA requires DHS to remove.

The security framing is blunt. DHS emphasizes that many deferral recipients have criminal histories or are otherwise deemed public-safety risks. The narrative is that leaving such individuals here, unable to remove them to their homeland, is unacceptable; finding third-country options protects the public. That is the rhetoric driving current operations. Whether it comports with due process and non-refoulement is the legal question.

A high-profile case illustrates the stakes: Kilmar Ábrego García. In 2019, an IJ barred his removal to El Salvador based on likely persecution. In spring 2025 he was nonetheless flown to El Salvador’s CECOT “mega-prison,” before a court fight compelled his return to the United States. Subsequent filings indicate DHS now aims to remove him to Uganda, while he seeks an opportunity to pursue protection as to that destination and, alternatively, to be removed to Costa Rica, which reportedly offered him refuge. Federal courts have intervened repeatedly to stabilize his status while the merits are litigated.⁸ ⁹ ¹⁰ ¹¹ The Washington Post+1CBS News

The government’s reading sits on a narrow ledge: if the regulations and statute authorize third-country removal, due process must still be satisfied. That is where Ninth Circuit precedent matters.

III. Due Process and Notice: Ninth Circuit Ground Rules

The Ninth Circuit has long required notice of the intended country of removal and a meaningful opportunity to seek protection with respect to that destination. In Andriasian v. INS, the court held that removing a person to a new country without advising them and allowing an application for protection violates due process.¹² The Seventh Circuit, in Kossov v. INS, reached the same conclusion.¹³ California district courts have followed suit. In Aden v. Nielsen, the court enjoined third-country removal without adequate notice, emphasizing that a post-hoc motion to reopen is “not an adequate substitute for the process that is due.”¹⁴ These precedents, applied rigorously, require written notice identifying the destination, time to consult counsel, and a process (reasonable-fear screening and, if indicated, a reopened proceeding) to test CAT eligibility for the new country—before removal. CasemineCasetextvLex

The 2025 class injunction in D.V.D. v. DHS enforced exactly that structure: notice to the individual and counsel in a language understood; opportunity to raise fear; if fear is asserted, referral to CAT screening; and time to pursue reopening/judicial review prior to removal. The Supreme Court’s stay removed those nationwide obligations, but it did not displace individual due-process orders. In practice, district courts have continued to issue TROs and preliminary injunctions for particular petitioners to force notice and preserve the ability to apply for protection as to the proposed country.⁵ ⁶ AILASCOTUSblog

IV. The Supreme Court’s Stay—and What It Does Not Decide

On June 23, 2025, the Court stayed Judge Talwani’s preliminary injunction in D.V.D.. The order enables DHS to resume third-country removals pending appellate review. Justice Sotomayor’s dissent criticized the majority for tolerating removals that deprive people of notice and a chance to assert CAT claims. The merits remain unresolved; the stay signals skepticism toward class-wide structural injunctions but says nothing definitive about individualized relief.⁶ SCOTUSblog

Separately, reporting indicates the administration has attempted third-country transfers to South Sudan, with litigation focusing on safety, due process, and compliance with court orders. The public record around those flights underscores the need for transparent process and judicial oversight when the destination itself is volatile.¹⁵ Reuters

V. California and the Ninth Circuit: Where Remedies Still Work

The remedies question is the center of gravity. The Real ID Act and 8 U.S.C. § 1252 re-channeled and limited judicial review. But they did not extinguish all district-court power. A careful strategy—framed to avoid jurisdictional bars—continues to produce TROs, preliminary injunctions, and, where appropriate, permanent injunctions in individual cases.

A. The Statutory Gates

1. § 1252(f)(1) (“operation” bar). Lower courts may not “enjoin or restrain the operation” of specified INA provisions except “with respect to the application of such provisions to an individual alien.” In Garland v. Aleman Gonzalez, the Court confirmed that class-wide injunctions are barred but individual injunctions remain available. The drafting must be person-specific.¹⁶

2. § 1252(g) (three discrete actions). Reno v. AADC construes § 1252(g) narrowly. It covers challenges to the decision or action to commence proceedings, adjudicate cases, or execute removal orders—not process-based claims about how removal will be executed. A suit insisting on notice and a meaningful opportunity to raise CAT regarding Country X challenges the manner of execution, not the fact of execution.¹⁷ Clearinghouse

3. § 1252(b)(9) (the “zipper clause”). Courts have rejected readings that funnel every issue into a petition for review (PFR). Collateral claims—e.g., the right to notice of a new destination and access to CAT screening before removal—may be raised in district court, especially where without interim relief the PFR would be meaningless because the person would already be abroad. This is how district courts in the First Circuit (Devitri) and Ninth Circuit have handled emergency process claims.¹⁸ Casetext

4. § 1252(a)(2)(B) (discretion bar). Kucana v. Holder limits this bar to decisions made discretionary by statute, not by regulation. Demanding mandatory process (notice/opportunity to raise CAT) challenges unlawful conduct, not a discretionary choice of destination.¹⁹ Justia Law

5. § 1252(a)(2)(D) preserves review of questions of law and constitutional claims in the courts of appeals. This provision confirms that a PFR can review legal CAT decisions on the merits while a district court protects the status quo. Nasrallah v. Barr further clarifies that CAT orders are reviewable on PFR, including factual components.²⁰ Justia Law

B. TROs and Preliminary Injunctions: What Works Now

Because the risk at stake is torture, irreparable harm is straightforward. Nken v. Holder confirms that traditional stay factors govern judicial stays, and Ninth Circuit panels routinely accept torture risk as meeting irreparable harm.²¹ The ask should be specific: enjoin removal of this petitioner to Country X unless and until DHS provides written notice of Country X and a meaningful opportunity to present a CAT claim (reasonable-fear screening and, if warranted, a reopened proceeding). That formulation fits § 1252(f)(1)’s individual-alien carve-out and avoids § 1252(g)’s core. Aden and Andriasian bolster the merits.¹² ¹⁴ Justia Law

C. Permanent Injunctions: How to Get Durable, Person-Specific Relief

The question is whether a permanent injunction is possible after Aleman Gonzalez and the summer stay. Yes—if you satisfy merits and equities and keep the relief individualized and process-based.

Merits theory. Due process and the CAT framework require notice of destination and an opportunity to show likely torture/persecution in that destination before removal. Andriasian is controlling in the Ninth Circuit. Aden applies it in district court to third-country contexts. A permanent injunction can declare that, as to this petitioner, removal to Country X without specified process (notice + CAT screening + access to reopening and, if needed, PFR) is unlawful and therefore enjoined.

Irreparable harm. The record should document risk of torture in Country X and risk of onward refoulement back to the country of persecution. Provide expert declarations, country-conditions reports, and evidence of the petitioner’s profile (e.g., a “deportee” marker leading to detention/torture upon arrival). Courts recognize torture risk as paradigmatic irreparable injury.²¹

Balance and public interest. These invariably follow once the merits are framed as enforcing mandatory process. The government remains free to remove if it complies and the petitioner fails on the merits of CAT as to Country X.

Drafting the decree. Avoid any language that “enjoins execution of the removal order” in general. Enjoin only removal to Country X “unless and until” DHS provides named procedures. Build in a notice clause (service on counsel and petitioner, in a language understood) and a brief interval to allow filing a motion to reopen and, if denied, an emergency PFR and stay request. This form is within § 1252(f)(1)’s individual-alien exception.¹⁶

Accardi theory as a complement. If DHS has issued internal guidance committing to certain steps before third-country removal—e.g., notice and fear screening—invoke Accardi (agencies must follow their own rules) as an alternative merits basis. Practice advisories and litigation filings in D.V.D. cite draft notices and DHS commitments to exactly those steps; where you can authenticate them, a court can order compliance.⁵ National Immigration Litigation Alliance

D. Habeas as a Safety Valve

If DHS detains the person pending third-country arrangements—or for leverage during plea discussions—use 28 U.S.C. § 2241. Zadvydas v. Davis limits prolonged post-order detention; if no removal is reasonably foreseeable, release is mandated.²² Even where removal is pursued, habeas is proper to challenge unlawful conditions of execution (e.g., whisking a person to a new destination without notice). District courts have used habeas to stay removal long enough to allow motions to reopen and CAT screenings, especially where administrative remedies are otherwise illusory. Devitri is instructive: the court stayed removal of Indonesian Christians so they could meaningfully access reopening based on changed conditions.¹⁸ Justia LawCasetext

E. Appellate Track: Petitions for Review and Stays

In parallel with district-court practice, file a petition for review with the Ninth Circuit whenever there is a BIA decision touching CAT. Nasrallah ensures the court of appeals may review CAT determinations (including factual issues).²⁰ Seek an emergency stay under Nken to prevent mootness by removal. When properly sequenced, the district court preserves the status quo while the Ninth Circuit adjudicates the merits.²¹ Justia Law+1

VI. Case Study: A Live Controversy

The Ábrego García litigation crystallizes the doctrinal and practical tensions. After DHS deported him to El Salvador despite an IJ-ordered bar, courts ordered his return; he was charged criminally upon re-entry; ICE then detained him again and sought to remove him to Uganda. Reporting reflects successive rounds of federal court intervention, including a temporary bar on deportation to Uganda to preserve the process, while defense counsel moved to reopen on the basis of a new-country theory and, alternatively, proposed a safe third option (Costa Rica) that had offered refuge. This is not a template every case can replicate, but it demonstrates the remedy set: individual TROs, process-specific injunctions, motions to reopen on the new destination, and parallel criminal-procedure arguments where removal would interfere with a pending prosecution.⁸ ⁹ ¹⁰ ¹¹ CBS NewsThe Washington Post

The South Sudan flights highlight a different risk: mass operational measures implemented faster than courts can react. The Supreme Court’s stay has encouraged bolder action, but it has not removed judicial authority to guard individual rights. In the Ninth Circuit, the path remains open.

VII. Solutions: A Practitioner’s Playbook (Ninth Circuit Focus)

1. File early; demand notice. When you get any whiff of a third-country designation, serve DHS with a written demand for the proposed country, language-appropriate notice to your client, and a schedule for fear screening, reopening, and PFR. Attach Andriasian and Aden; these are your anchors.¹² ¹⁴

2. TRO with surgical relief. Seek an order enjoining removal to Country X unless and until (a) written notice is served on petitioner and counsel; (b) petitioner has a reasonable-fear interview as to X; (c) time is provided to file a motion to reopen; and (d) if denied, time to pursue a PFR and stay. Keep the relief individual and process-contingent to fit § 1252(f)(1).¹⁶

3. Reopen at EOIR on the new country. Move to reopen to seek withholding/CAT concerning Country X. Explain that the protection adjudication to the original country cannot control the risk analysis for X, both legally and factually.

4. Habeas if detained; Zadvydas if prolonged. If DHS holds your client while “shopping” destination countries, sue under § 2241; if removal is not reasonably foreseeable, Zadvydas demands release.²²

5. PFR and Nken stay in the Ninth Circuit. As soon as there is a reviewable decision (or if needed to preserve jurisdiction), file a PFR and seek an emergency stay.²¹ ²⁰

6. Permanent injunction for this client. After preliminary relief and merits proof, seek a permanent, person-specific injunction barring removal to Country X without the specified process. Do not enjoin the order globally; do not prohibit execution to other safe destinations. That respects the statutory scheme and avoids § 1252(g) and (f)(1) traps.

7. Accardi and record-building. If DHS circulates guidance on third-country procedures, put it in the record and invoke Accardi. Tie the injunction to agency-promised steps, not judicial invention.⁵

8. If criminal proceedings are active. Use the Sixth Amendment framework to argue that sudden removal would irreparably compromise defense rights; request a stay of removal through the criminal court or a coordinating order requiring DHS to maintain the client’s availability until trial concludes. Ábrego’s docket shows judges will listen.

VIII. The Policy Question the Law Cannot Ignore

Non-refoulement is not satisfied by geographic sleight-of-hand. If the executive can send a person to a state where torture is likely, or where onward removal to the persecuting state is predictable, then CAT becomes performance, not protection. That is the paradox. The text of § 208.16(f) must be harmonized with CAT’s purpose and the Constitution’s basic promise of due process. Courts in the Ninth Circuit have the tools; they simply must be used consistently and with craft.

Congress can resolve the ambiguity by amending the statute or directing the Attorney General to promulgate rules that codify destination-specific process: timely written notice; counsel service; reasonable-fear screening; reopening access; and time to seek appellate review. Until then, litigation will continue to do what legislation has not: impose a floor of process on a practice that, unchecked, trades in human risk.

(Educational analysis only; not legal advice.)

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Footnotes

1. 8 U.S.C. § 1231(b) (removal priorities and alternate-country scheme), Cornell LII. Legal Information Institute

2. Jama v. Immigration & Customs Enf’t, 543 U.S. 335 (2005) (receiving country’s prior consent not always required), Justia; see also LII. Justia LawLegal Information Institute

3. Foreign Affairs Reform and Restructuring Act (FARRA) § 2242; implementing regulations in 8 C.F.R. pt. 208.

4. 8 C.F.R. § 208.16(f) (“Nothing in this section… shall prevent the Service from removing an alien to a third country other than the country to which removal has been withheld or deferred.”), eCFR; see also LII CFR. eCFRLegal Information Institute

5. D.V.D. v. DHS, No. 1:25-cv-10676 (D. Mass.) (TRO and preliminary injunction requiring notice and opportunity to raise CAT prior to third-country removal), case record and summaries: Civil Rights Litigation Clearinghouse; AILA update (Apr. 18, 2025), link; practitioner alert (May 27, 2025), PDF. ClearinghouseAILANational Immigration Litigation Alliance

6. Amy Howe, Supreme Court pauses district court order preventing immigrants from being deported to third-party countries, SCOTUSblog (June 23, 2025), link. SCOTUSblog

7. Jama, 543 U.S. 335, supra note 2. Justia Law

8. Jeremy Roebuck, Judge temporarily bars Kilmar Ábrego García’s deportation to Uganda, Washington Post (Aug. 25, 2025), link. See also Roebuck, Ábrego returned to U.S., charged with human smuggling (June 6, 2025), link. The Washington Post+1

9. Kaia Hubbard, Kilmar Abrego Garcia taken into ICE custody, facing deportation to Uganda, CBS News (Aug. 25, 2025), link. CBS News

10. CBS News coverage package on possible removal to Uganda (Aug. 2025), e.g., segment. CBS News

11. AP wire reports and local syndication on renewed detention and court orders, e.g., Live5/AP roundup (Aug. 25, 2025), link. https://www.live5news.com

12. Andriasian v. INS, 180 F.3d 1033 (9th Cir. 1999). Ninth Circuit due-process outline referencing Andriasian, 9th Cir. Immig. Outline. Ninth Circuit Court of Appeals

13. Kossov v. INS, 132 F.3d 405 (7th Cir. 1998), Casetext. Casetext

14. Aden v. Nielsen, 409 F. Supp. 3d 998 (N.D. Cal./W.D. Wash. 2019) (district-court injunction requiring notice and recognizing motion to reopen not an adequate substitute), vLex summary. vLex

15. Reuters, U.S. Supreme Court sides with Trump in South Sudan deportation fight (July 3, 2025), link. Reuters

16. Garland v. Aleman Gonzalez, 596 U.S. ___ (2022) (individual-alien injunctions permitted; class-wide barred), Justia.

17. Reno v. Am.-Arab Anti-Discrimination Comm. (AADC), 525 U.S. 471 (1999), Justia. Clearinghouse

18. Devitri v. Cronen, 289 F. Supp. 3d 287 (D. Mass. 2018) (stays to preserve access to reopening on changed conditions), Casetext; clearinghouse case summary, link. CasetextClearinghouse

19. Kucana v. Holder, 558 U.S. 233 (2010), Justia. Justia Law

20. Nasrallah v. Barr, 140 S. Ct. 1683 (2020) (CAT orders reviewable on PFR), Justia. Justia Law

21. Nken v. Holder, 556 U.S. 418 (2009) (traditional stay factors govern), Justia (see also Library of Congress PDF), PDF. Justia LawLibrary of Congress Tiles

22. Zadvydas v. Davis, 533 U.S. 678 (2001), Justia (detention limited to period reasonably necessary), see also LII summary. Justia LawLegal Information Institute