Trump's Potential Strategy for Deporting Immigrants to Alternate Nations

With certain countries such as China and Venezuela often refusing to take back deported citizens from the U.S., Trump might be exploring different avenues.

Donald Trump, poised to assume office, is reportedly contemplating the deportation of immigrants to countries that aren’t their native ones. This wouldn't be an unprecedented move for Trump, though legal controversies are likely to continue accompanying such actions.

Reports indicate Trump is considering sending immigrants—those whose native countries refuse their return—to third-party nations like the Turks and Caicos, the Bahamas, Panama, and Grenada. At present, immigrants from these non-cooperative or 'recalcitrant' countries are often left inside the U.S. as there is no viable destination for their deportation.

The exact legal foundation on which Trump plans to execute these deportations remains unclear. While a spokesperson from Trump's team has yet to comment, there's existing regulation and law providing some authority to deport to third countries. The definite legality of these actions is still uncertain, however.

Previously utilizing his executive power, Trump attempted to transfer asylum seekers to Guatemala through agreements referred to as “Asylum Cooperative Agreements.” These migrants, who came through Guatemala en route to the United States, could be returned if they hadn’t sought asylum there first. Though the ACLU sued over this policy, the lawsuit was left unresolved: The strategy was halted with the onset of the pandemic and the subsequent election of Joe Biden.

Legislative Pathways and Legal Challenges

The prior rule, however, was not eliminated. Should Biden leave it in place, Trump could potentially revive it and apply it to other countries, provided the arrangement withstands judicial scrutiny and the U.S. secures comparable treaties with those nations.

Alternatively, Trump might reference federal laws that allow deportation to third countries in certain situations, such as where there is no possibility to return an individual to their homeland and the prospective country is deemed safe. The ACLU has already taken a stance against Biden’s interpretation of this law to swiftly deport Venezuelans to Mexico without their agreement—a court decision on this matter might define Trump's capability to enact similar plans.

Regardless of the path, Trump’s administration is obliged to verify that any deported immigrants are sent to a secure nation, complying with both U.S. and international statutes.

Understanding the 'Recalcitrant Countries'

By 2020, the U.S. identified 13 nations as recalcitrant, including Russia, China, Cuba, and Iran. This list hasn't been updated for years, despite increasing immigration numbers from these regions to the United States.

For example, while initially fewer than 2,000 Chinese migrants were encountered at the U.S. southern border in 2022, this figure rose to over 36,000 by 2024. Many migrants are escaping financial difficulties and political repression due to China's stringent lockdowns during the pandemic. Nonetheless, China has shown reluctance in repatriating its nationals; a notable deportation flight to China only recently marked a six-year hiatus.

Even though Venezuela wasn’t on the initial list, it ceased accepting deportations from the U.S. in early 2024 following American sanctions. The Biden administration, viewing deportation flights as a deterrent to further migration, recorded over 300,000 interactions with Venezuelan migrants in the same period.

Preparing for Trump’s Potential Deportation Agenda

The extent to which Trump could execute massive deportations to third countries hinges partly on the outcomes of ongoing ACLU lawsuits. Yet existing legal frameworks might allow some degree of action.

A pivotal ACLU lawsuit targets the rule that facilitated the U.S.-Guatemala agreement, asserting it fails to adequately authenticate the risk of persecution immigrants might face there. As U.S. and international law prevent returning individuals to likely perilous locations, previous statistics showing high violence rates in Guatemala underscore the litigation's concerns.

This rule suggested only routing asylum seekers to nations with fair asylum assessments. Even though the Trump administration assured Guatemala's compliance, conflicting evidence arose.

Whether similar justifications apply to anticipated agreements with countries like Turks and Caicos, the Bahamas, Panama, and Grenada remains to be seen. For now, Biden has the chance to revoke the rule that facilitates such agreements.

A close approach of the next inauguration could still see these rules unchanged. Hence, theoretically, Trump might negotiate new agreements swiftly, as Eiland observed.

Additionally, the lawsuit challenging Venezuelan deportation to Mexico criticizes the unprecedented nature of the third-country removal use, forecasting exposure of deportees to potential persecution or torture. Laws detail a protocol for assessing when a third-country deportation is permissible, and the ACLU argued that the Biden administration sidestepped this process.

If courts validate Biden's alignment with this law, it might extend the legal leverage for Trump to replicate such strategies for nationals from other recalcitrant nations, potentially facilitating widespread deportations.