The Trump administration may deport immigrants to a country where they have no connections, in some cases with as little as six hours’ notice and without assurances from the destination country that the deported individuals “will not be persecuted or tortured,” according to a new memo from a top immigration official.
The Immigration and Customs Enforcement memo, which says the policy is “effective immediately,” was issued July 9 by acting Director Todd Lyons. It provides guidance to ICE employees on how to deport people to countries other than their country of origin and, “in exigent circumstances,” even if there’s a risk they will be persecuted or tortured there.
“If the United States has received diplomatic assurances from the country of removal that aliens removed from the United States will not be persecuted or tortured, and if the Department of State believes those assurances to be credible, the alien may be removed without the need for further procedures,” said the memo, which was first reported by The Washington Post and became public Tuesday in court filings.
Lyons wrote that “in all other cases” where the United States has not received those assurances, ICE must comply with several procedures, including that an ICE officer will serve the immigrant with a notice of removal that lists what country the federal government intends to deport them to in a language that the immigrant understands; will not affirmatively ask whether the person is afraid of being sent to that country; and will wait at least 24 hours before removing the person from the U.S.
But “in exigent circumstances,” Lyons wrote, the officer may deport the person in as little as six hours as long as the person is “provided reasonable means and opportunity to speak with an attorney.”
Immigrants who could be subject to the policy include those who have been given final orders of removal but in which a judge has found they would still be at risk of persecution or torture if deported from the Unites States, as well as those who come from countries where the U.S. lacks diplomatic relations or an established ability to send deportees to those countries, such as Cuba.
Though ICE officers are told not to ask migrants if they are afraid of deportation to a third country, those who do state such a fear will will be referred for screening for possible protection within 24 hours, according to the memo. That screening could lead to the migrant being referred to immigration court for further proceedings or ICE possibly trying to send them to a different country than they one which they express fear of being deported to.
Trina Realmuto, the executive director of the National Immigration Litigation Alliance, which is involved in a federal lawsuit challenging the deportations of migrants to countries other than their own, said in a statement to NBC News that the memo establishes a policy that “blatantly disregards the requirements required by statute, regulation, and the Constitution.”
She said the memo means there will be “no process whatsoever when the government claims to have credible diplomatic assurances” for immigrants who are to be deported to third countries. Those assurances, she added, “are unlawful” because they don’t protect deportees from persecution or torture at the hands of non-state actors and because they violate legal requirements establishing that they be individualized and that migrants have the chance to review and rebut them.
Realmuto also criticized the government for not publicly sharing what countries it has obtained diplomatic assurances from and what those countries got in exchange.
The rest of the policy is “woefully deficient,” she said.
“It provides a mere between 6- and 24-hours’ notice before deportation to a third country, which is simply not enough time for any person to assess whether they would be persecuted or tortured in that third country, especially if they don’t know anything about the country or don’t have a lawyer,” Realmuto said.
In a statement to NBC News on Tuesday, before the memo became public, the Department of Homeland Security said the agency has “successfully negotiated nearly a dozen safe third country agreements.”
“If countries aren’t receiving their own citizens, other countries have agreed that they would take them. It is incredibly important to make sure we get these worst of the worst criminal illegal aliens out of our country,” Assistant Secretary Tricia McLaughlin said in the statement. “That is why these agreements, which ensure due process under the U.S. Constitution, are so essential to the safety of our homeland and the American people.”
The ICE memo follows a Supreme Court ruling in June that allows the Trump administration to deport immigrants to countries to which they have no previous connection.
That ruling put on hold a federal judge’s order that said convicted criminals should have a “meaningful opportunity” to bring claims that they would be at risk of torture, persecution or death if they were sent to countries the administration has made deals with to receive deported migrants.
Justice Sonia Sotomayor wrote in a dissenting opinion that the court was “rewarding lawlessness” by allowing the administration to violate immigrants’ due process rights.
The fact that “thousands will suffer violence in far-flung locales” is less important to the conservative majority than the “remote possibility” that the federal judge had exceeded his authority, Sotomayor said.
