SARAH SHERMAN-STOKES

Clinical Associate Professor and Associate Director of the Immigrants’ Rights & Human Trafficking Program, Boston University School of Law; J.D. Boston College Law School; B.A. Bates College.

The large-scale deportation of noncitizens from the United States is not new. However, the speed, and secrecy, by which many of these deportations are carried out is unprecedented. Deportations are, increasingly, executed not through a legal court process, but rather, extrajudicially—in detention centers and at border crossings, outside the purview of judges or neutral adjudicators. One kind of this “shadow deportation” is what I term “third country deportation”—the removal of noncitizens to a country other than that designated by an Immigration Judge, after relief to the designated country has been granted, and after the court proceeding has concluded.

This article builds upon the work of other scholars who have illuminated deportations that occur in the shadows—including expedited removal, administrative removal and reinstatement of removal—all of which happen quickly, and largely without judicial review. This article argues that “third country deportations” are not only part of this growing, and dangerous, trend toward deportations that happen outside the courtroom, but that they are in direct violation of both our domestic and international legal obligations. In fact, third country deportations place already vulnerable noncitizens at risk of being removed to countries where they face persecution and torture, without the process and judicial oversight that a court proceeding provides. In order to comply with our legal obligations, this article contends that notice, burden shifting, and a full evidentiary hearing are required when the government seeks to remove a noncitizen to a country other than that designated by an Immigration Judge.

“Peter” was born in Khartoum, Sudan, in the midst of the second Sudanese civil war. Following the murder of his father and kidnapping of his mother, Peter and his family were brought to the United States as refugees. Soon after, trouble with the law landed Peter in immigration detention and facing deportation to Sudan. After he was granted relief under the Convention Against Torture (“CAT”), Peter was released from immigration detention and spent the next seven years living and working in New England. Then, in 2018, Peter was arrested by immigration officials, detained, and told he would be removed to South Sudan, a country to which he had no connection. In fact, the Department of Homeland Security (“DHS”) intended to carry out his deportation without notice, a hearing, or process of any kind.

To place Peter’s story in context, several trends in immigration detention and the number of people seeking humanitarian protection, including relief under CAT, should be noted. Like Peter, a record number of more than 54,000 people are currently being held in ICE custody across the United States. Thousands of these detainees are torture survivors or likely to face torture if removed to their countries of origin. Fiscal Year 2018 showed a 40-percent jump in the number of decisions made by immigration judges regarding fear-based relief, which includes asylum, withholding of removal, and relief under CAT. This spike in the number of immigration judge decisions regarding fear-based relief was a more than 89-percent increase from two years ago. Fear-based relief, including relief under CAT, is increasingly sought, and meaningful when received, hypothetically ensuring that recipients are not removed to countries where they will be persecuted, harmed, tortured, or killed. Over the last several years, however, there has been a slow, but steady, erosion of basic protections under our asylum laws. What’s more, noncitizens facing deportation are not entitled to a lawyer except at their own expense—which means that many noncitizens seeking fear-based protection in U.S. immigration courts are unrepresented. [Read entire Article here].