The Supreme Court this week temporarily cleared the Trump administration to keep its third-country deportation policy in force, and the Department of Homeland Security’s top lawyer is stating the tradeoff in plain language.
DHS General Counsel James Percival told Fox News Digital the guidance remains active after the justices stayed a lower-court judgment on Tuesday. Arguments are set for December on whether agency procedures before such removals comply with federal immigration law, due process, and safeguards against torture. The case does not squarely challenge DHS’s underlying authority to send removable aliens to a willing third country when home countries will not take them back.
Percival framed the stakes around public safety. When a removable criminal alien cannot be returned home, he said, the government either finds another country willing to accept that person or releases the person into a U.S. community.
Percival described third-country removals as a statutory tool Congress already wrote into law. He said the administration is using authorities that sat idle for too long.
He put the dilemma this way when discussing serious offenders whose home countries refuse return:
"If the person is a child rapist and serves 20 years, we have two choices: Find a third country, or let the child rapist go live in an American community."
He added that the ask is hard diplomacy, not a casual handoff. Percival told Fox News Digital:
"Imagine going to a country and saying, hey, we've got a guy, he's not your guy, and he's a rapist, but can he please live there?"
"That's not an easy ask. It requires significant diplomatic energy... Norway is not taking a rapist from Cuba."
Those lines capture the core of his public defense. Home-country refusal leaves limited options. Third-country placement is the alternative to release.
Percival pointed straight at the Illegal Immigration Reform and Immigrant Responsibility Act of 1996. Congress passed the package. President Bill Clinton signed it. Percival said the third-country provision is explicit.
"It’s in the statute expressly that we can do this."
He argued many immigration powers already on the books went unused. "If you go back and read most of the immigration laws, there's a lot of really good tools in there that people just haven't used."
He compared bureaucratic caution to unused fine china. "A lot of people in government sort of treat their authority like fine china." He continued that officials fear using power will cause someone to take it away, then find themselves at the end of a career never having used the tools at all.
The legal backdrop also includes the Supreme Court’s 2001 decision involving Kestutis Zadvydas. Zadvydas was a stateless legal resident ordered deported because of a criminal record. He was born to Lithuanian parents in a German displaced-persons camp. Neither Lithuania nor Germany would accept him.
The Court held that six months of post-removal detention is presumptively reasonable. After that point, continued detention can be challenged if removal is not reasonably foreseeable. That ruling is why prolonged detention of non-removable aliens faces limits, and why third-country arrangements matter when repatriation stalls.
DHS has increasingly turned to third-country removals when a removable alien cannot go home or the home country refuses. Percival is pressing the case in public through a “Daily Deportee” series on X. The posts highlight criminal deportees whose countries will not take them.
One example he has cited is Kyaw Mya, a Burmese national whose home country will not take him back. Percival also plans to feature another migrant he described in stark terms. He said the man tried to kill somebody, the gun misfired, so he pistol-whipped the victim instead. The man served time and got out. Percival said the Bush administration did not remove him after he served that sentence, and that the man later allegedly reoffended after release.
Homeland Security Secretary Markwayne Mullin has kept another option on the table as well: $3,000 and a flight home. Percival, pointing to that offer, said it is not too late for some to take it.
The policy has drawn blowback. Unnamed human rights advocates have pointed to allegations that deportees were beaten by authorities in Equatorial Guinea. Percival answered the quality-of-life critique directly. "I’d rather live in the United States than Equatorial Guinea too, but I’m an American citizen and I haven’t killed anybody."
Equatorial Guinea is a small nation on Africa’s Atlantic coast. President Teodoro Obiang has controlled the government since 1979. Fox News Digital reported that Obiang’s government in Malabo received $7.5 million from Washington as part of an agreement to accept third-country deportations.
That payment sits at the center of the diplomatic energy Percival described. Finding any country willing to take a non-national with a serious criminal record is difficult. Norway, in his example, is not volunteering to accept a rapist from Cuba. The United States therefore negotiates with partners that will accept transfers under defined terms.
Critics treat the destination country’s conditions as the main story. Percival treats the alternative as the main story: release into American neighborhoods after a sentence ends and home-country repatriation fails.
The justices’ stay left administration guidance in effect while the Court considers the merits. December arguments will focus on procedures DHS must follow before third-country removals. The questions include compliance with federal immigration law, due process, and safeguards against torture.
The underlying power to conduct third-country removals is not the square issue before the Court in the same way. Percival’s public comments separate those threads. He argues the authority exists in the 1996 statute. The live dispute, as described, targets the process around the removals rather than a clean wipeout of the tool itself.
That distinction matters for what happens next. If procedures are upheld with whatever modifications the Court requires, third-country removals remain available for cases in which home countries refuse return. If procedures are curtailed sharply, DHS will face tighter limits on how and when it can use the option Percival calls essential for the worst cases.
Percival’s examples keep returning to the same operational problem. Some removable aliens have serious convictions. Some home governments will not accept them. Post-removal detention is not open-ended after Zadvydas. Without a third country, release becomes the residual path.
He presents that path as unacceptable for child rapists and violent offenders who have already served their sentences. The “two choices” line is the policy thesis: locate a third country, or accept the person in an American community.
The Daily Deportee series is his attempt to make those files visible. Kyaw Mya’s case, the planned feature on the pistol-whipping offender, and similar files are offered as proof that the problem is concrete, not theoretical. Home-country refusal is not rare in the cases he is highlighting.
Mullin’s $3,000-and-a-flight-home offer remains a parallel track for people who will leave voluntarily. Percival’s comment that it is not too late keeps that door open while the harder third-country work continues for those who will not take it or cannot be returned home.
Percival’s fine-china metaphor is an argument about institutional culture. He says officials sometimes preserve authority by never testing it. He wants the opposite approach: use the tools Congress already enacted.
IIRIRA’s third-country provision is the main instrument he cites. The 1996 law, signed by President Clinton, is not a novel Trump-era invention in his telling. It is an existing power the department is now employing more often when repatriation fails.
The Supreme Court’s temporary stay gives that approach breathing room through the December arguments. The administration’s guidance stays operative in the meantime. Deportation officers and DHS lawyers still have to meet whatever procedural requirements the final ruling sets. The stay does not erase those questions. It does keep the policy from being frozen while the Court works through them.
Human rights advocates will continue to press the Equatorial Guinea allegations and similar claims about destination-country conditions. Percival’s reply stays fixed on citizenship and criminal conduct. He does not claim Equatorial Guinea is a preferred place to live. He claims the United States is not obliged to absorb removable criminal aliens when their own countries shut the door and a lawful third-country option exists.
Investigators, diplomats, and the courts still have work ahead. Authorities will need to determine how third-country agreements are structured, what notice and process precede removal, and how torture-related safeguards are applied in practice. The December arguments are the next public test of those procedures.
For conservatives watching enforcement, the fight is not abstract. It is about whether written immigration powers mean what they say when a home country refuses a convicted offender and a U.S. community would otherwise become the default landing place.
When the law already supplies a removal tool, the real failure is leaving it on the shelf while criminal deportees walk free.
