Members of the U.S. Supreme Court. Bottom row, from left, Sonia Sotomayor, Clarence Thomas, Chief Justice John Roberts, Samuel Alito, and Elena Kagan. Top row, from left, Amy Coney Barrett, Neil Gorsuch, Brett Kavanaugh, Ketanji Brown Jackson. (AP Photo/J. Scott Applewhite, File)
David L Sloss (@DavidSloss6), the John A. and Elizabeth H. Sutro Professor of Law at the Santa Clara University School of Law and a faculty scholar with the Markkula Center for Applied Ethics. Views are his own.
In Department of Homeland Security v. D.V.D., decided in June 2025, the Supreme Court gave a green light to the Trump Administration to continue its practice of “third country removals.” In a powerful dissent, Justice Sotomayor argued that the Court effectively authorized the president to deport non-citizens to countries where they are likely to be tortured.
The United States is a party to the Convention Against Torture, a multilateral treaty. Under Article 3, the United States has a binding international legal obligation not to deport “a person to another State where there are substantial grounds for believing that he would be in danger of being subjected to torture.” That legal obligation is also a moral obligation: it would be morally reprehensible for our government, or any government, to send an individual to a country where that person is likely to be tortured. The Court’s decision in D.V.D. raises the question whether the United States is violating both international law and fundamental ethical norms.
To evaluate that question, let’s begin with some background on federal statutes governing “removal” of non-citizens. If the government wants to expel a non-citizen from the United States, it must first obtain a “removal order” from a federal judge that authorizes the government to remove that person from U.S. territory. As a general rule, non-citizens arrested upon entry into the United States must be returned to the country from which they came. Most other non-citizens who are subject to removal orders are entitled to designate a country of their choice. If neither of the above options is practicable, federal statutes specify that the government must send the individual either to his country of citizenship or to his former country of residence.
In very unusual circumstances–where none of these options is feasible–federal statutes authorize “third country removal,” meaning that the U.S. government may send that person to any country where the government will accept him. However, federal law allows third country removal only after the government has tried all of the alternatives listed in the previous paragraph and determined that they are “impracticable, inadvisable, or impossible.”
Assume that the government intends to send Jane Doe to country X. Federal law grants Ms. Doe a right to object on the grounds that removal to country X would violate U.S. obligations under Article 3 of the Torture Convention. Federal law also grants Jane Doe a right to have her objection heard by an impartial judge before the government sends her to country X. That procedural right—the opportunity to be heard—is constitutionally protected by the Fifth Amendment Due Process Clause. Moreover, I contend, in cases where Jane Doe fears that she may be tortured in country X, the opportunity to be heard is both a moral and a legal entitlement.
The Trump Administration’s policy, as articulated in internal guidance documents issued by the Secretary of Homeland Security, boils down to this. Individuals like Jane Doe have a procedural right to raise a defense to removal under Article 3 of the Torture Convention once, but not more than once. For example, assume that the government intends to send Jane Doe to Guatemala. Ms. Doe objects that removal to Guatemala would violate Article 3 because she is likely to be tortured there. An immigration judge agrees with her and issues an order barring removal to Guatemala. At that point, according to the Trump Administration’s policy guidance, Jane Doe has effectively exhausted her only opportunity to be heard on a Torture Convention claim. If the government then designates South Sudan, for example, as the destination for third country removal, Jane Doe no longer has a procedural right to raise a Torture Convention defense because she already used that right to avoid removal to Guatemala. (Technically, the bar to raising a Torture Convention defense applies only if the government has obtained “credible assurances” from South Sudan that individuals sent there will not be tortured. However, according to the Trump Administration, the executive branch has unilateral authority to determine whether assurances are “credible,” and courts cannot second-guess such determinations.)
The petitioners in D.V.D. included a Guatemalan man who was deported to Mexico, and six individuals who were sent to South Sudan—all under the third-country removal policy described above. Various news reports suggest that the Trump Administration has obtained diplomatic assurances, which it deems “credible,” allowing for third country removals to Uganda, Rwanda, Eswatini, and South Sudan. The government has reportedly considered both Uganda and Eswatini as potential destination countries for Kilmar Abrego Garcia, the man whom the Trump Administration wrongfully deported to El Salvador earlier this year, despite a court order prohibiting his removal to El Salvador.
Freedom House publishes an annual report that rates the level of freedom for every country in the world on a scale from zero to 100. 100 is the best possible score. In the most recent Freedom House report, Uganda scored 34, Rwanda scored 21, Eswatini scored 17, and South Sudan scored a whopping 1 out of 100. All four countries are rated “not free.” Given the terrible human rights records of all four countries, diplomatic assurances from those countries—that is, promises not to commit acts of torture—are not worth the paper they are written on. Although the Trump Administration claims that diplomatic assurances from those countries are “credible,” that claim itself is not credible.
Commentators have suggested that, under the current third-country removal policies, as many as one million non-citizens currently living in the United States may be exposed to the risk of removal to countries with horrible human rights conditions. In their zeal to carry out the president’s mass deportation policies, senior government officials in the Trump Administration are sacrificing the rights of detainees—both their substantive right not to be tortured and their right to procedural due process before they are removed from the country. Senior officials are also sacrificing their own moral integrity by accepting diplomatic assurances from dictatorial governments and pretending that those assurances are credible.
In addition to the Convention Against Torture, the United States is also party to the International Covenant on Civil and Political Rights (ICCPR). Under Article 10 of the ICCPR, we have a binding legal obligation to ensure that “all persons deprived of their liberty shall be treated with humanity and with respect for the inherent dignity of the human person.” That legal duty is also a moral obligation that should, in principle, guide the behavior of every U.S. government official who helps formulate and implement government policies related to removal of detainees. Let us hope that the current administration will be replaced by one that is committed to implementing our immigration laws in a manner that comports with this fundamental ethical obligation. It cannot happen soon enough.