Statutory and constitutional arguments surrounding Third‑Country Removals, and Prolonged ICE Detention

What Happened

In mid‑2025, detention and removal policy hardened again. Internal guidance reported by Reuters (July 15, 2025) described a push to limit release and deny bond hearings in broad swaths of cases. Days earlier, the Washington Post (July 14, 2025) reported a memo declaring millions ineligible for immigration‑court bond hearings while their cases are pending (paywall). These developments land atop longstanding controversies: rapid transfers that strand families and counsel, video‑only hearings inside detention, and rising reliance on third‑country removals—sometimes without that country’s advance consent.

For context, we recently documented how custody and venue practices degrade due process in “Inside ICE Detention: Due Process Under Strain” (May 21, 2025), and how “rendition‑like” transfers crept into civil immigration enforcement in “Deportation or Rendition?” (July 11, 2025). We also tracked fast‑moving litigation in our Ortega v. Kaiser analysis (Aug 19, 2025).

Why It’s Controversial

Two pressure points keep colliding. First, the government’s power to choose a destination country when carrying out a final removal order—including a third country—has wide textual support. Second, the Constitution and federal statutes put brakes on how long the government may jail someone while it seeks travel documents or third‑country acceptance, particularly when protection claims under the Refugee Act and the Convention Against Torture (CAT) are pending.

The Legal View

The statutory scaffold. The country‑selection rules sit in 8 U.S.C. § 1231. Subsection (b)(2) lists the order of preferred destinations; subsection (b)(3) forbids removal to a country where life or freedom would be threatened on protected grounds (statutory withholding). Regulations at 8 C.F.R. § 241.4, § 241.13, and § 241.14 govern post‑order custody review and so‑called “special circumstances” detention. CAT protections and country‑specific non‑refoulement standards are implemented in 8 C.F.R. §§ 1208.16–.18

Key Supreme Court decisions. Three holdings do much of the heavy lifting: Jama v. ICE, 543 U.S. 335 (Jan. 12, 2005) (advance consent is not always required under § 1231(b)(2)’s earlier clauses); Zadvydas v. Davis, 533 U.S. 678 (June 28, 2001) (detention under § 1231(a)(6) is limited to a period reasonably necessary to effect removal; a six‑month benchmark governs); and Johnson v. Guzman Chavez, 141 S. Ct. 2271 (June 29, 2021) (people in “withholding‑only” proceedings after reinstatement are detained under § 1231). The Court later held no statutory right to bond hearings exists under § 1231(a)(6): Johnson v. Arteaga‑Martinez, 142 S. Ct. 1827 (June 13, 2022), and curtailed class‑wide injunctions: Garland v. Aleman Gonzalez, 142 S. Ct. 2057 (June 13, 2022). See official opinions at the Supreme Court’s site: Arteaga‑Martinez (June 13, 2022) and Aleman Gonzalez (June 13, 2022

Chevron is dead; text controls. In Loper Bright Enterprises v. Raimondo, 603 U.S. ___ (June 28, 2024), the Court jettisoned Chevron deference, telling lower courts to interpret statutes using their own judgment while crediting agency views only when persuasive. See opinion: U.S. Supreme Court (June 28, 2024); analysis from Reuters (July 8, 2024).

Lens 1 — Textualism in the Scalia/Jama key

Read strictly, § 1231(b)(2) supplies four sequential commands for country selection. Jama held that the statute does not invariably require advance consent for the earlier commands; only the final fallback (“impracticable, inadvisable, or impossible”) adds a “will accept” condition. That gives the government a lawful path to designate certain third countries without pre‑clearance, so long as it respects the sequence and keeps clear of § 1231(b)(3)/CAT bars. On detention, Guzman Chavez keeps withholding‑only detainees inside § 1231’s framework, and Arteaga‑Martinez confirms that any bond‑hearing right must be constitutional, not statutory. The textualist takeaway: the INA’s words, already parsed by the Court, carry the day for DHS on authority—though not on duration.

Lens 2 — Marshall’s civil‑rights focus: due process and non‑refoulement

The civil‑rights lens centers constitutional liberty and America’s anti‑torture commitments. After six months, Zadvydas flips the burden: unless DHS shows a significant likelihood of removal in the reasonably foreseeable future, release under supervision is the default. Courts increasingly require an individualized bond hearing with the government’s clear‑and‑convincing proof where detention drags on. See, for example, the Second Circuit’s approach summarized by Reuters (May 31, 2024). Non‑refoulement protections also travel with the person: statutory withholding (§ 1231(b)(3)) and CAT under CAT art. 3 (Dec. 10, 1984), implemented at 8 C.F.R. §§ 1208.16–.18, forbid removal to any country where persecution or torture is likely. That includes third countries. Courts have also demanded process when DHS leans on “diplomatic assurances.” See Khouzam v. Att’y Gen., 549 F.3d 235 (3d Cir. Dec. 5, 2008), opinion available via Villanova Law’s repository.

Lens 3 — Douglas’s liberty/overreach check: indefinite detention is not punishment

Immigration detention is civil, not punitive. The government may confine only to ensure removal or manage real flight/safety risks. When, as often happens, there is no receiving country in sight, detention morphs into punishment without trial—precisely what Zadvydas forbids. The implementing rules underscore this: 8 C.F.R. § 241.13 creates a specific process for release when removal is not foreseeable; § 241.14 “special circumstances” is exceptional, not a default.

In the Courts: The Arguments Head‑to‑Head

Government’s brief. The government argues that Jama and § 1231(b)(2) permit third‑country removals without advance consent under the early commands, that withholding/CAT restricts only where a person can be sent (not whether the person can be removed), and that post‑order detention is authorized so long as DHS continues diligent removal efforts. Guzman Chavez places withholding‑only detainees within § 1231; Arteaga‑Martinez strips any statutory bond‑hearing right; Aleman Gonzalez curtails class‑wide injunctions. On paper, DHS points to its Post‑Order Custody Review (POCR) regime as adequate individualized process (8 C.F.R. § 241.4).

Noncitizens’ brief. The counter‑case is fact‑specific and powerful where the record shows delay without a realistic removal plan. Zadvydas limits detention to the time reasonably necessary to remove; after six months, DHS must present concrete evidence (travel documents in‑process, an accepting country, or other verifiable steps) that removal is likely soon. Bare speculation about third‑country acceptance does not suffice. On the merits of third‑country selection, non‑refoulement applies to the country of proposed removal. “Chain refoulement” claims—risk of being pushed from a proposed third country to the persecuting state—cannot rest on speculation, but when evidence shows a pattern of onward transfer or inadequate protection, CAT/withholding bar the route. The Third Circuit requires due process before DHS relies on diplomatic assurances to defeat CAT claims (Khouzam, Dec. 5, 2008). The Attorney General’s decision in Matter of J‑F‑F‑ is not a shield for weak records; it rejects hypothetical chains, not evidence‑backed ones (A.G. 2006; DOJ republished PDF July 25, 2014).

Conditions Inside

Detention conditions matter because prolonged civil confinement shifts from administrative to punitive in practice. International standards—while not self‑executing—supply persuasive benchmarks. The U.N.’s revised Standard Minimum Rules for the Treatment of Prisoners (Nelson Mandela Rules, Dec. 17, 2015) and the UNHCR Detention Guidelines (2012) emphasize necessity, proportionality, and robust access to counsel and medical care. When detainees lack lawyers, cycle through remote facilities, and face video‑only hearings, errors multiply—an outcome Mathews v. Eldridge would weigh heavily against the government’s process. Recent reporting suggests ICE is testing the legal seams of detention authority; see Reuters (July 15, 2025). That choice invites renewed constitutional scrutiny.

Beyond U.S. Borders: Special Note on Iranian Nationals

For Iranian nationals, third‑country proposals frequently raise CAT risks given current conditions. The U.S. State Department’s 2024 Country Report on Iran (posted Aug. 12, 2025) documents torture‑tainted confessions and unfair trials. Human Rights Watch reports on sexual violence and torture in detention (Apr. 22, 2024), and its 2025 chapter on Iran highlights executions and due‑process violations (Jan. 2025). Amnesty likewise flags torture and inhuman punishments (Apr. 29, 2025). Proposing removal to a third country with a record of returning Iranians to risk—or with weak asylum systems—demands exacting analysis under CAT art. 3 and § 1231(b)(3).

The Doctrinal Bottom Line

Authority to choose a destination: The government has the better of the pure statutory argument. Jama and the text of § 1231(b)(2) allow third‑country designations without advance consent under the earlier tiers, subject to the sequence and to non‑refoulement. See Cornell LII summary of Jama (Jan. 12, 2005).

On how long ICE can detain while it tries to effect that removal: Noncitizens’ position gains strength with each passing month. Zadvydas requires an evidence‑based showing that removal is reasonably foreseeable after six months; absent that, release under supervision is the legally sound outcome. The statutory claim to a bond hearing failed in Arteaga‑Martinez, but constitutional due process remains live, and federal appellate courts continue to recognize that prolonged detention without a hearing can violate due process (see Reuters (May 31, 2024)).

On non‑refoulement in third‑country cases: The stronger view is that withholding/CAT apply to any proposed destination. When credible evidence shows risk in the third country—including onward transfer—removal is barred unless DHS can prove safety through reliable, testable assurances and afford meaningful process (Khouzam, Dec. 5, 2008). See DOJ’s summary of Matter of J‑F‑F‑ (A.G. 2006) for the limits on purely hypothetical “chain” claims.

Context: Why Precedent from 2001–2024 Still Governs 2025 Fights

Because Loper Bright (June 28, 2024) pulled Chevron up by the roots, courts rely even more on the statutory text and existing Supreme Court constructions. That shifts the center of gravity to cases like Jama, Zadvydas, Clark v. Martinez, Guzman Chavez, and Arteaga‑Martinez—all still controlling. See official PDFs for Guzman Chavez (June 29, 2021), Zadvydas (June 28, 2001), and Clark v. Martinez (Jan. 12, 2005).

Practical Guidance: Building (or Attacking) the Record

For DHS/ICE: Document concrete steps (consular correspondence, acceptance communications, travel‑document timelines). Use POCRs (§ 241.4) and, if removal is not foreseeable, the § 241.13 process. If relying on assurances to overcome CAT, disclose them to permit an individualized challenge (Khouzam). Avoid rote invocations of “special circumstances” under § 241.14.

For noncitizens/counsel: Invoke Zadvydas early; marshal evidence why removal is not foreseeable (no accepting country; no travel document; prior refusals). Press for a bond hearing on constitutional grounds and demand the government carry a clear‑and‑convincing burden, consistent with circuit practice reflected in Reuters (May 31, 2024). In third‑country cases, compile proof of risk in the proposed destination, including onward‑transfer patterns; rebut speculative reliance on J‑F‑F‑ with specific country evidence and—if DHS offers assurances—demand Khouzam‑compliant procedures.

Related Coverage on CandidViews

• Inside ICE Detention: Due Process Under Strain (May 21, 2025) — access to counsel, transfers, and video hearings.
• Deportation or Rendition? (July 11, 2025) — third‑country practices and chain‑refoulement risk.
• Ortega v. Kaiser (Aug 19, 2025) — federal court oversight of detention decisions.
• Category hub: Legal Advocacy.

Why It Matters

For families, the question is simple: how long can the government keep a loved one locked up while chasing an uncertain removal? For the rule of law, the question is whether textual authority to remove morphs into authority to detain indefinitely. The answer—grounded in Supreme Court precedent—is no. DHS’s destination discretion is real, but it is fenced in by non‑refoulement and by Zadvydas’s hard limit on prolonged civil confinement without a realistic path to removal.

Looking Ahead

Post‑Loper Bright, expect more judicial skepticism of expansive agency gloss. The legally sound equilibrium is three‑part: (1) allow third‑country removals that truly satisfy § 1231(b)(2) and non‑refoulement; (2) require timely, meaningful custody review and—when detention becomes prolonged—bond hearings with the government’s clear‑and‑convincing burden; and (3) demand transparent, testable diplomatic assurances before they can defeat CAT claims. That framework honors statutory text, constitutional liberty, and America’s treaty commitments without treating detention as a penalty box.

Key Sources (with dates):

Zadvydas v. Davis (U.S. June 28, 2001);

Clark v. Martinez (U.S. Jan. 12, 2005);

Jama v. ICE (U.S. Jan. 12, 2005);

Johnson v. Guzman Chavez (U.S. June 29, 2021);

Johnson v. Arteaga‑Martinez (U.S. June 13, 2022);

Garland v. Aleman Gonzalez (U.S. June 13, 2022);

Loper Bright (U.S. June 28, 2024); 2d Cir. due‑process ruling (Reuters, May 31, 2024);

Khouzam v. Att’y Gen. (3d Cir. Dec. 5, 2008);

Matter of J‑F‑F‑ (A.G. 2006; DOJ PDF July 25, 2014);

Nelson Mandela Rules (Dec. 17, 2015);

UNHCR Detention Guidelines (2012);