Third-Country Deportation and Withholding of Removal Limits

A Texas father whom an immigration judge shielded from deportation to Mali in 2012 says a third-country deportation to Ghana this summer left him in Mali anyway within days, according to a 60 Minutes report that aired Oct. 25. The Department of Homeland Security disputes his account, but the case exposes the limit built into withholding of removal: it protects against one country, not every country.

The timing matters. The Supreme Court hears the government’s appeal over third-country removals on Dec. 9, a case that could decide how much warning people with protection orders get before being flown to a country they have never seen.

Moussa Diawara, 57, overstayed a tourist visa and, after converting to Christianity, won withholding of removal in 2012 on his claim that he would be persecuted in Mali, CBS News reported. He has two U.S. citizen children, held a work permit, drove for Uber near Houston and has no criminal record, according to CBS. ICE arrested him July 11 and deported him July 31 on a 63-person flight that reached Ghana after stops in Sierra Leone and the Central African Republic.

Diawara told 60 Minutes that Ghanaian officials held him in a hotel and then forced him onto a flight to Mali, where he was left without money or identification. Two documents CBS obtained point the same way: a flight medical form listing his destination as “SHRC Mali” and DHS-issued bag tags marked Mali. DHS said the bag tags were “produced by contractors” who do not decide destinations, called the medical form a “clerical error,” said Ghana had given “diplomatic assurances for his safety” and questioned whether his fear of persecution was credible. James Percival, the department’s top lawyer, said he was not aware of Ghana sending deportees anywhere against their will. Ghana’s government declined to comment. Diawara’s lawyer has asked a federal judge in Washington to order his return.

A third-country deportation deal gets a person admitted to the receiving country, but it rarely gives them a lasting right to live or work there. What happens next depends on that country’s own law and on whatever it agreed with the United States. In 2025, Panama and Costa Rica released deportees from detention with temporary permits of roughly 30 to 90 days, after which they had to leave, regularize their status, or seek asylum. Ghana relied on ECOWAS free movement, which allows West Africans visa-free visits of up to 90 days but does not grant residence. Others are simply let go with no documents or money, as Moussa Diawara says happened to him in Mali. Without status, a person usually cannot work legally, rent housing or open a bank account, and the host country can detain or deport them again, often to the very country they fear. A U.S. withholding order offers no protection abroad, because it binds only the United States. Seeking asylum in the third country is possible in theory, but only where a working asylum system exists and the person can actually reach it.

Why withholding of removal does not stop a third-country deportation

Withholding of removal under section 241(b)(3) of the Immigration and Nationality Act is harder to win than asylum: the applicant must show it is more likely than not that his life or freedom would be threatened in a specific country. A grant bars removal only to that country, offers no path to a green card and leaves the person under a final removal order.

The regulation says so directly. Under 8 CFR 1208.16(f), nothing in the withholding rules prevents the government from removing a person to a third country. What has changed is scale. ICE has sent about 25,000 people to dozens of third countries, CBS reported, and a Migration Policy Institute review found that the U.S. has deportation deals with dozens of governments whose safeguards no one systematically checks.

The people most exposed won withholding or Convention Against Torture deferral years ago and have since lived under an order of supervision, checking in with ICE and working legally. Recent court fights over re-arresting people on supervision and over a man deported to Equatorial Guinea show the same pattern.

What the Supreme Court will and will not decide on Dec. 9

In Department of Homeland Security v. D.V.D., No. 26-426, the justices will review a Boston judge’s ruling, largely affirmed by the First Circuit in September, that DHS’s third-country policy denied deportees due process. The policy allows removal to any country that gives assurances against persecution or torture; otherwise DHS gives notice and a “reasonable opportunity” to raise a fear claim, generally 24 hours, SCOTUSblog reported. Removals continue because the justices paused that judgment on Sept. 29.

The government argues that federal law bars district courts from hearing these claims as a class action at all, and SCOTUSblog’s analysis expects the case to turn on that jurisdictional question rather than on whether deportees are endangered. Even a ruling for the challengers would chiefly secure notice and a chance to object before the first flight. It would not by itself answer what happens when a country that gave assurances later sends someone onward, the scenario Diawara describes and DHS denies.

DHS frames the program as a public safety tool. Percival told CBS that Eswatini and South Sudan accepted deportees with serious violent records whose home countries refused them, and that some deportees “might not always be truthful about the fact that they consented” to go home. A CBS review of the 63 people on Diawara’s flight found that 19% had criminal charges or convictions, 19% had traffic violations and 62% had no record.

The next signal is the Washington court’s answer to the request to bring Diawara back, which would test whether a judge treats an onward removal as the U.S. government’s responsibility. Then comes the Dec. 9 argument, with a decision likely by the end of the term in June or early July. Until then, a withholding order alone does not keep its holder in the United States.

This article is for general information and is not legal advice.

Sources

Vasanth Vaidyanathan, Esq.

Administrator

Vasanth Vaidyanathan is an immigration attorney with over 20 years of experience focused exclusively on U.S. immigration and nationality law. He holds a LL.M. from California Western School of Law, San Deigo and advises individuals and businesses on employment and family-based immigration matters, including H-1B, PERM, EB categories, and adjustment of status. He has also been a featured speaker at immigration seminars across the U.S. To reach Vasanth visit: https://www.vnathan.com/

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