President-elect Donald Trump is reportedly considering deporting some immigrants to countries other than their own. If he tries to do so, it won’t be the first time. Like before, however, he would probably face legal challenges.
According to NBC News, Trump is considering sending immigrants whose home countries will not accept US deportees to third countries including Turks and Caicos, the Bahamas, Panama, and Grenada. Currently, many immigrants from so-called “recalcitrant countries” are simply released into the US since there is nowhere to send them.
It’s not immediately clear what legal mechanism Trump intends to rely on to carry out these deportations to third countries. A representative for the Trump transition team did not respond to a request for comment. A regulation and a law currently give the executive branch some ability to deport immigrants to third countries; however, the legality of both is an open question.
During his first term, Trump previously sought to use executive power to send asylum seekers of various nationalities to Guatemala under what he called an “Asylum Cooperative Agreement.” Under the agreement, migrants who passed through Guatemala before arriving in the US were sent back if they did not first seek protection there. The ACLU filed a lawsuit challenging the policy, but that suit was never resolved: The government stopped enforcing the policy during the pandemic and President Joe Biden was elected.
The rule remains on the books, however. If Biden does not rescind it before he leaves office, the incoming Trump administration could use it to deport people to the countries under consideration — if it survives in court, and if the US can broker similar agreements with those countries.
Alternatively, Trump could try to invoke federal immigration law allowing the removal of immigrants to third countries in certain circumstances, such as when they cannot be returned to their country of origin and the third country is deemed to be safe for them. The ACLU has challenged Biden’s use of this law to fast-track deportations of Venezuelans to Mexico without their consent. The outcome of the lawsuit may determine the kind of powers Trump may have to carry out his plans.
Either way, the Trump administration would have to ensure that immigrants would be sent to a country where they will be safe, as is required under US and international law.
“Folks are supposed to be safe from persecution and torture and [any] procedure has to include adequate screening for fear of return and a fair process,” Katrina Eiland, deputy director of the ACLU’s Immigrants’ Rights Project, said. “To the extent [the Trump administration is] incentivized to take shortcuts, that’s a huge problem and something that the ACLU and other allies I’m sure would be prime to sue over.”
Recalcitrant countries, briefly explained
The US had designated 13 countries as recalcitrant as of 2020, including Russia, China, Cuba, and Iran. It has not publicly updated that list in the years since, and immigrants have been arriving in the US in increasing numbers from some of those countries.
For instance, apprehensions of Chinese nationals at the US southern border jumped from less than 2,000 in fiscal year 2022 to over 36,000 in 2024. Many of them are fleeing economic hardship and political oppression following the country’s strict pandemic-era lockdowns. But China has been reluctant to accept its own citizens: The US sent a large deportation flight to China in July for the first time in six years.
Though Venezuela was not previously on the list of recalcitrant countries, it also stopped accepting deportation flights from the US in February following the implementation of American sanctions. While the US was previously only returning a fraction of the millions fleeing Venezuela’s dictatorship, the Biden administration saw the deportation flights as a deterrent to further migration. US immigration agents recorded more than 300,000 encounters with Venezuelans in fiscal year 2024.
All of these people, who number in at least the hundreds of thousands, could be targets for a deportation program that sends immigrants to third countries under Trump.
Can Trump actually deport people to third countries?
Whether Trump can deport people to third countries in large numbers may depend on what happens in the ACLU’s pending lawsuits. But, again, existing legal authorities could allow him to carry out at least some of these removals.
The ACLU has argued in its lawsuit challenging the rule underlying the US’s agreement with Guatemala that the agreement does not provide for sufficient screening to determine whether an immigrant would face “credible fear” of persecution in Guatemala. Under US and international law, immigrants cannot be returned to places where they would face such credible fear. At the time the agreement was established, Guatemala had the ninth-highest homicide rate worldwide, at about 26 deaths per 100,000 inhabitants, and the State Department had issued a travel warning for US citizens in Guatemala.
The rule also claimed that asylum seekers would only be sent to countries where they have “access to a full and fair procedure for determining a claim to asylum or equivalent temporary protection.” The Trump administration certified that Guatemala’s legal framework met that standard despite what Eiland called a “total dearth of evidence in the administrative record, and in fact … a lot of evidence to the contrary.”
It’s not clear whether the same legal arguments would apply to any similar agreements Trump might broker with Turks and Caicos, the Bahamas, Panama, and Grenada.
But in the meantime, Biden still has an opportunity to rescind the underlying rule that would allow additional agreements to be implemented.
“With a little over a month to go till inauguration, they may do nothing, in which case the rule is still there. Theoretically, the Trump administration could come in and sign new agreements,” Eiland said.
In its other lawsuit challenging the deportations of Venezuelans to Mexico, the ACLU has argued that such a use of the third-country removal authority is unprecedented and will result in “removal to situations in which noncitizens are likely to face persecution or torture.” The law lays out a detailed process for determining when an immigrant can be sent to a third country, and the ACLU has argued that the Biden administration is not abiding by it.
If the courts uphold Biden’s use of the law, that would potentially open the door for Trump to do the same for additional citizens of recalcitrant countries, giving him another tool through which he could carry out his plans for mass deportations.
