Trump has a new fast-track deportation strategy: third-country removals

SAN FRANCISCO - President Donald Trump has a new fast-track deportation strategy known as third-country removals, and it's causing alarm within the immigrant rights community. 

In the Bay Area, there are 50 such cases currently pending at the immigration court in Concord and a growing number in San Francisco, though an exact number wasn't immediately available, according to attorneys who work at both places.

Put simply, third-country removals are when immigrants are deported to somewhere else, other than their home country. And the Department of Homeland Security is asking for these removals with "pretermit" motions, which essentially ask a judge to dismiss an asylum claim without a full evidentiary hearing. 

Bay Area removal orders

Nicole A. Gorney, supervising attorney at Vidas Legal in Santa Rosa for the Removal Defense & Farmworker Programs, said she had two such third-country removal hearings on Thursday in San Francisco immigration court, and she witnessed three more on Friday.

In one of her hearings, she represented a 30-something pregnant Mexican mother of a 3-year-old daughter, who was born in the United States, seeking asylum because her father was killed by the cartel. 

At the hearing in the courtroom of Judge Patrick O'Brien, a Department of Homeland Security attorney handed her what she described as a "boilerplate" motion to send her client to Honduras instead. Gorney formally opposed the removal. But the judge granted the motion. 

"Many of these DHS attorneys are young and are clearly following marching orders," Gorney said. "These cases are pre-determined before we even walk in." 

In her second case, Gorney received a late-night email from the DHS changing her other client's removal order from Honduras to Ecuador, even though her 40-something client is from Mexico and fears going home because her husband was in the military there and killed "under suspicious circumstances." Gorney said she was granted a continuance in this case so she can have time to reply to the government's motion.

During one of the hearings, the Department of Homeland Security attorney told the judge that "Central America is up for interpretation and that Mexico is a part of Central America," Gorney recalled. The judge then asked the DHS attorney if they believed the U.S. or Canada was part of Central America and Gorney said the the attorney replied: I don't know.

"The whole concept is really confusing," Gorney said. "My clients are all just pawns in a game right now." 

Jane Lee, an immigration lawyer for the Contra Costa County Public Defender's Office, said many of the people showing up in Concord immigration court don't have lawyers, and so they don't know what's really occurring. She is helping three such clients.

She said that many DHS attorneys are making verbal removal motions in court, and some judges are honoring them on the spot.  

In one judge's courtroom in Concord on Thursday, a woman who didn't have a lawyer said she wasn't afraid to go to Honduras, but then when a volunteer attorney talked with her afterwards, she had no idea what she'd done.

"This is taking people by surprise," Lee said. 

DHS third-country removal motion

The DHS did not respond to several emails seeking comment. 

But KTVU obtained a third-country DHS removal motion from a Nicaraguan asylum seeker, which lays out this new approach to deportations. 

The 19-page motion states that the person seeking asylum in Concord immigration court is "barred" from applying for protections because the United States has entered into an agreement in July with an Asylum Cooperative Agreement country – in this case, Honduras. 

The motion asks the immigration judge to order a "pretermit" order and to expedite the matter. In this case, a pretermit request means the government wants asylum seekers removed without a chance to have a hearing on their claims.

Under U.S. law, deportees may be sent to a third country only if returning to their home country is "impracticable, inadvisable, or impossible," according to statute 8 U.S.C. 1231(b).

Trump has long stated that he wants to deport undocumented immigrants, and in October, the Department of Homeland Security issued a news release that the agency had removed more than half a million "illegal aliens" from the United States, under his leadership alongside DHS Secretary Kristi Noem. 

"The Trump Administration is on pace to shatter historic records and deport nearly 600,000 illegal aliens by the end of President Donald Trump’s first year since returning to office," a statement on the DHS website states. 

"More than 2 million illegal aliens have left the U.S. including 1.6 million who have voluntarily self-deported and over 527,000 deportations," Assistant Secretary Tricia McLaughlin wrote in a statement. "This is just the beginning

Breaking down third-country removal

Former San Francisco immigration judge Shuting Chen said the Department of Homeland Security asked her to deport three asylum seekers to Honduras in these cases in the week before she was fired on Nov. 20. 

"The week before I got fired, the Department of Homeland Security started making these motions where I would have somebody from Guatemala come up and sit in the chair," said Chen, the judge who was fired in San Francisco. "And then the department would say, 'Your Honor, I'm making a motion to pretermit based on the ACA (Asylum Cooperative Agreement) that we have with Honduras, this person can be sent to Honduras."

Since the 1990s, the only country the United States has had such an agreement with has been Canada. 

In 2019, Trump tried to use this third-country deportation strategy in his first administration, but immigrants' rights groups sued, and ultimately President Joe Biden stopped this practice, so it never really took hold. 

The case, U.T. v. Barr, is still being litigated U.S. District Court for the District of Columbia. 

In March of this year, the Trump administration tried again.

The U.S. has reached ACA agreements with countries including Honduras, Ecuador, Guatemala, Paraguay and Uganda, for example, to accept immigrants deported from the United States, according to Human Rights First and Refugees International. 

Then, about a month ago, beginning in mid-November, Trump's administration began using this strategy more widely, according to immigration judges, attorneys and court filings. 

"Starting in late November here in the San Francisco, Concord, and Sacramento courts, we've seen them getting filed in a huge number of cases," said Sean McMahon, a senior attorney with the California Collaborative for Immigrant Justice in Oakland, who regularly serves as "attorney of the day" in Concord immigration court. 

In fact, he and other attorneys said, that they have heard DHS attorneys say in open court that they have been told to file these third-country motions to Honduras and Guatemala for every Spanish speaker who entered the country after 2019. 

"Which is nuts," McMahon said. 

Numbers hard to track

There's no way of knowing nationwide how many immigrants have been removed to a third country that's not their home.

TRAC Immigration at Syracuse University, a clearinghouse of immigration data, told KTVU this week that their researchers have not been keeping track of these removals. 

There is a caveat, though: These cooperative-agreement countries have a cap on immigrants they will take. For example, in the deal with Honduras, the U.S. can only send up to 10 deportees a month for 24 months. Each country has its own cap. 

To their knowledge, several immigration attorneys told KTVU they don't think these countries accepted any payments from the U.S. for this, but they did acknowledge that the leaders of these countries are highly aware of what happens when Trump's wishes are ignored. 

"Certain governments, having seen what the U.S. does to countries that don't fall in line, they're going to say, 'the least we can do is say that we'll accept people, whether we actually ever accept them or not,'" said Blaine Bookey, legal director for the Center for Gender and Refugee Studies at UC Law San Francisco. "Sure, we'll fall in line so that we're not at the other end of the the ire of the Trump administration." 

‘Concerning’ issues, critics say

Chen said there were several "concerning" issues with these motions.

For one, she said immigration judges do not have the right to question DHS attorneys whether these receiving countries will actually take the asylum seekers. 

And second, even though there is a cap on people who can be sent to a third country, Chen said that the "Department of Homeland Security was making these in almost every single case, or perhaps every single case where the person was eligible to be deported to Honduras for not only my docket, but every other person's docket in San Francisco." 

And problem number three?

"A third problem is that every single country that we have an ACA agreement with has an abysmal human rights record," Chen said. 

In Chen's opinion, the Trump administration is deploying this strategy en masse because "it's a relatively easy and fast way to get rid of cases."

She and other immigrant lawyers said the Trump administration has abandoned simply dismissing cases and arresting immigrants at courthouses because there were a lot of community protests and flareups, garnering headlines and pushback. 

Judges hands are tied 

Chen explained a typical example of how a third-country removal works. 

Let's say a Guatemalan person tells her they don't want to go to Honduras because it's not their home, and they're afraid to go there. But they also don't want to go to Guatemala, because they fear persecution there, too. 

As an immigration judge, Chen said she would be required to hold an abbreviated hearing to assess whether they will more likely than not be persecuted if sent to Honduras. 

"That showing will be incredibly hard for that Guatemalan person to make with regards to Honduras, simply by the fact that they have never been to Honduras, and they can't tell me, you know, like I lived there for five years and I experienced a lot of discrimination or harm," Chen said. "So it's extremely hard for that person to prove that they cannot be sent to Honduras."

She acknowledged that once she held that hearing, "my hands are tied in saying that they essentially cannot be deported to Honduras. And because of the asylum cooperative agreement in place, I will then deny their application to Guatemala, pretermit that application and send them to Honduras." 

Chen added there's one more concerning issue for her.

"Once that removal order is in place, the government doesn't necessarily have to send them to Honduras," she said. "They just have your removal order. They could just say you have a removal order, and we're going to detain you now. And we could send you somewhere else." 

Some immigrants giving up 

Bookey, from the Center for Gender and Refugee Studies, said she's seen some judges rubber-stamping the orders and others delaying the hearings, giving immigrants some time to fight their cases. 

She said that in one case, she saw a judge scheduling one day of these hearings, giving each immigrant 30 minutes to argue their case on why they shouldn't be deported to somewhere other than their homeland, which they have already fled. 

"You know, 30 minutes is really, really limited in terms of your ability to establish an adequate fear from from this country that you've never been to," she said. 

And what happens in some of these cases, Bookey said, is that immigrants will give up, and agree to be deported to the country from which they are seeking asylum as a lesser of two evils. 

"If you're being sent to Uganda, for example, or maybe Paraguay or someplace that's a little bit farther geographically, then it really is forcing people to just give up their claims and say, 'actually, you know what, I'm not even going to make a claim anymore, send me back to my home country'," she said. 

Attempts to fight back 

Some immigrant rights lawyers and groups are trying to respond, by scrambling to provide as much free legal counsel to asylum seekers as they can, and to create template legal motions to fight the third-country removals. 

Many of the immigrants who show up in court are pro se, which means they are representing themselves. And if they do find attorneys, the cost can be prohibitive. For example, an appeal motion costs between $1,100 and $5,000 depending on the attorney. 

"What we're trying to do is get people's information, try to help them, to give them these response documents that we're working on and file them in their case to see what happens," McMahon said. "So it's too early to know what the judges are going to do with that."

He said he hopes that the judges will give asylum seekers full hearings before they decide whether to send people to a country that's not their own.

"Yes, I do think it's coercive," McMahon said. "I think under this administration, they just don't care. They don't want to give someone the opportunity to win. And this is a way to just cut it off."

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