An investigative analysis of federal court filings has revealed a significant enforcement practice: at least 120 immigrants were detained for months in Arizona ICE facilities, despite judges barring their deportation home because they would face persecution or torture. The analysis found that many were held beyond six months as the Trump administration sought to deport them to countries where they had never lived. This practice reflects the government’s response to a landmark Supreme Court decision and ICE policy changes targeting individuals who have won withholding of removal or Convention Against Torture protection.
What changed
On Feb. 18, 2025, Immigration and Customs Enforcement (ICE) issued a directive encouraging the increased use of third-country removals against individuals granted withholding of removal under the Immigration and Nationality Act (INA) and individuals granted protection under the Convention Against Torture (CAT). The directive states that withholding and CAT are “country-specific protections from removal” that do not prevent removal to a third country.
The directive instructs officers that when individuals granted withholding of removal or CAT protection report for a check-in on a non-detained docket, officers should consider “the viability of removal to a third country” and whether the noncitizen should be re-detained. This marked a departure from decades of practice: under any previous administration, lawyers say, the immigration judge’s decision would have led to his release.
The AZCIR investigation documents specific cases where individuals won withholding of removal but remained in detention. One asylum-seeker from Burkina Faso had won a ruling that sending him back would likely bring further persecution, but had sought refuge in the United States and was detained after crossing the U.S.-Mexico border in 2024. Nearly a year after the ruling, he was still locked inside an Immigration and Customs Enforcement detention center while the government looked for another country willing to take him in. The process, known as third-country removal, can take months or years, if successful at all.
Why it matters
This practice affects how you counsel clients who have won withholding of removal or CAT protection. Rather than release, ICE may now re-detain individuals during the indefinite process of arranging removal to a country where they did not originate—a process that can take months or years, if successful at all.
Key implications for practitioners:
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Detention strategy shifts: A withholding order no longer guarantees release from custody. Officers are now instructed to evaluate re-detention based on “viability” of third-country removal. This changes how you structure releases, bail arguments, and post-victory case management.
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Constitutional exposure: Many were held beyond six months, raising Fifth Amendment due-process questions about prolonged detention. Habeas petitions challenging the lawfulness of continued detention become critical tools.
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Procedural defects in third-country removals: Multiple courts have held that noncitizens cannot be removed to a country that was not designated by an immigration judge as a possible country for removal. In order to propose another country for removal, proper notice and an opportunity to be heard must be afforded to the noncitizen. However, in multiple cases in April 2026, the Trump administration re-arrested and removed to third countries people who had been granted withholding of removal by an immigration judge and released from detention after prevailing on a habeas claim.
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Coordination with pending class litigation: A federal court certified a nationwide class related to third-country removals in DVD v. DHS, defined as all individuals who have a final removal order issued in proceedings under Section 240, 241(a)(5), or 238(b) of the INA (including withholding-only proceedings) whom DHS has deported or will deport on or after February 18, 2025, to a country not previously designated as the country or alternative country of removal. Your client may qualify for class relief, though the Supreme Court has stayed the preliminary injunction.
Way forward
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Confirm non-release risk at check-in: When representing a client granted withholding or CAT protection, prepare for re-detention when they report to ICE. Preemptively file bond redetermination or habeas petitions before check-in if possible; do not assume the judge’s order means release.
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Challenge procedural defects: If ICE proposes a third country for removal, demand written notice of that country before removal is executed. Petition for habeas relief on grounds that the noncitizen received no meaningful opportunity to be heard on the third-country designation, as required by statute and case law.
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Investigate third-country viability: Gather country conditions evidence, diplomatic assurances, and documentation that the proposed third country may not actually accept removal. Press ICE to disclose whether State Department assurances under the Convention Against Torture have been obtained.
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Coordinate class relief: Determine whether your client fits the certified class in DVD v. DHS. While the preliminary injunction is stayed, habeas petitions remain available to challenge unlawful detention while that litigation proceeds. Review practice advisories from NILA, NWIRP, and the Florence Project on third-country removal to identify additional claims (e.g., unlawful re-detention after prior release).
Disclaimer
This article is for informational purposes only and does not constitute legal advice. We are a technology and journalism company, not a law firm. Consult a licensed immigration attorney for advice on your specific case or situation. Policy can change without notice; verify all statements against the primary sources linked above and the current INA, regulations, and case law.