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The Trump Administration’s Unprecedented Violations of the Non-Refoulement Principle

Part of: AJIL Contemporary Practice of the United States

Published online by Cambridge University Press:  14 November 2025

Jaya Ramji-Nogales Open the ORCID record for Jaya Ramji-Nogales [Opens in a new window]
Jaya Ramji-Nogales*
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Immigration and Migration
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American Journal of International Law , Volume 119 , Issue 4 , October 2025 , pp. 758 - 767
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© The Author(s), 2025. Published by Cambridge University Press on behalf of American Society of International Law

In its first six months in office, the second Trump administration unleashed a firestorm of immigration restrictions, many of which violated international legal obligations that bind the United States, constitutional protections relating to procedural due process, and provisions of the Immigration and Nationality Act (INA) and the Administrative Procedure Act (APA). Indeed, the administration’s actions with respect to immigration have contravened so many legal standards that it is not possible to analyze all of them in this brief essay. Instead, this contribution focuses on the unprecedented ways in which the government has challenged the principle of non-refoulement, demonstrating an exceptional disregard for the operative provisions of the Convention Relating to the Status of Refugees (Refugee Convention) and the Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (CAT), as well as the federal statutes and regulations that implement these treaties.Footnote 1

Border Closure

The Trump administration has implemented two new policies that have effectively closed the border to asylum seekers, breaching the United States’ non-refoulement obligations and violating the explicit language of the INA in remarkably anomalous ways.Footnote 2 It has also revived a policy from the first Trump presidency that places asylum seekers at the southern border at risk of non-refoulement. That policy and the border closure have been challenged in court.

On his first day in office, President Donald J. Trump issued two executive actions that prohibit asylum seekers from entering the United States. The “Securing Our Borders” executive order suspends all entries at the southern border, terminating even the stringent entry procedures instituted by the Biden administration, and leaving no route to the asylum process.Footnote 3 The “Guaranteeing the States Protection Against Invasion” proclamation relies on provisions of the INA as well as the president’s foreign affairs authority to close the southern border to all undocumented migrants who he determines are part of an “invasion,” specifically noting that their access to the asylum process should be “restricted.”Footnote 4

These new policies are even more draconian than the first Trump administration’s border closure, which was struck down by the federal courts as ultra vires of the federal statute that implements the Refugee Convention.Footnote 5 That 2018 border closure rule excluded from asylum only those who crossed the border without inspection, permitting all migrants to access the asylum process through a port of entry.Footnote 6 Under the 2025 border closure regime, zero asylum seekers were given the opportunity to access the asylum system in the month of July, down from nearly 40,000 in December 2024.Footnote 7 In other words, the Trump administration’s policies amplify the risk that refugees who reach the southern U.S. border will be subject to refoulement to persecution and torture.

In February, three immigration legal services organizations challenged the “Guaranteeing the States Protection Against Invasion” proclamation for its violations of the INA, other immigration statues, and the APA.Footnote 8 On July 2, 2025, the U.S. District Court for the District of Columbia vacated the implementing guidance for this order, declared the order unlawful, “insofar as it purports to suspend or restrict access to asylum, withholding of removal, or the existing regulatory processes for obtaining CAT protection,” and enjoined the Trump administration from implementing it.Footnote 9 On August 1, 2025, the U.S. Court of Appeals for the D.C. Circuit narrowed the scope of the class certified by the district court to encompass individuals who were present in the United States while the proclamation was in effect and are statutorily eligible for and would seek protection through asylum, withholding of removal or withholding under CAT.Footnote 10 The appellate court also stayed the injunction with respect to the asylum process, but upheld it with respect to withholding of removal and withholding under CAT, which it found were mandatory protections under the INA and FARRA.Footnote 11 In other words, while the litigation proceeds, individuals within the country can seek withholding of removal and CAT protection but cannot apply for asylum; the president retains the authority to suspend access to the asylum process for non-citizens seeking entry.

The “Securing Our Borders” executive order also reinstitutes the “Migrant Protection Protocols” under which asylum seekers are returned to Mexico to await their asylum hearing, a policy created by the first Trump administration and dismantled by President Joseph R. Biden, Jr.Footnote 12 On May 12, 2025, a federal district court in Los Angeles stayed the MPP program nationwide; on July 18, the U.S. Court of Appeals for the Ninth Circuit narrowed that stay to cover only current and future clients of the plaintiff organization, and determined that MPP likely violates the APA and the INA.Footnote 13 With the border closed, however, no migrants have been enrolled in this program since January 2025.Footnote 14

Expansion of Expedited Removal

In the interior of the country, the Trump administration has created additional policies that will result in the deportation of many individuals seeking international legal protection in the United States. On January 21, 2025, the government dramatically broadened the scope of the expedited removal process. Originally applied only to non-citizens seeking admission at a port of entry, expedited removal was enlarged in 2004 to encompass migrants who enter without inspection and are apprehended within one hundred air miles of a land border within fourteen days of entry.Footnote 15 The Trump administration has expanded expedited removal further so that the process can now be employed against any non-citizen without lawful status apprehended anywhere within the territory of the United States who cannot prove that they have resided in the country for two years.Footnote 16 (In 2019, the first Trump administration issued a similar rule extending the reach of expedited removal, but it was enjoined until 2020, and very rarely used. In 2022, the Biden administration rescinded that expansion.)Footnote 17 This geographic and temporal enlargement of fast-track deportation, in combination with the Trump administration’s wide-ranging immigration raids, has laid the groundwork for mass deportations without due process.Footnote 18

Individuals in expedited removal can be deported without a hearing before an immigration judge, and are detained throughout the proceedings.Footnote 19 Migrants subject to this accelerated process who express a fear of returning to their home country are entitled to what is known as a “credible fear” hearing with an asylum officer, who will determine whether there is a “significant possibility” that their claim for asylum or protection against torture is viable.Footnote 20 If the asylum officer finds a credible fear, the asylum seeker is placed into full removal proceedings before an immigration judge. If the asylum seeker does not establish a credible fear, they can seek a fast-track review before an immigration judge, but they face immediate removal if they do not avail themselves of this appeal option or are unsuccessful in their appeal. This process became more challenging for asylum seekers in 2024, when the Biden administration eliminated an important procedural safeguard.Footnote 21 Rather than requiring that immigration enforcement officers ask individuals in expedited removal whether they have a fear of return, as had been the policy since expedited removal was instituted in 1997, protection seekers are now required to assert their fear of return spontaneously during the expedited removal process.Footnote 22 The expansion of expedited removal has increased the risk of violations of the non-refoulement obligation, resulting in the deportation of refugees, including non-citizens with orders of protection against removal and those with genuine fear of persecution or torture in their home country.Footnote 23

In the spring of 2025, the Trump administration widened the net even further through actions that severely undermine due process. When individuals in normal removal proceedings, many of whom are asylum seekers, appear in immigration court, the DHS trial attorney moves to dismiss those proceedings, orally and without prior notice. Immigration enforcement agents then arrest the individual at the immigration courthouse and place them into expedited removal proceedings. At the same time, DHS has engaged in widespread workplace raids, placing non-citizens it apprehends into expedited removal.Footnote 24 Applying the Mathews v. Eldridge balancing test to these and other facts, on August 29, the U.S. District Court for the District of Columbia stayed the Trump administration’s expansion of expedited removal because it found the plaintiffs were likely to succeed in their claim that it “violates the due process rights of those it affects by subjecting them to removal without constitutionally sufficient procedures.”Footnote 25

Rendition to Torture

The Trump administration also created a new basis for deportation, dusting off the 1798 Alien Enemies Act.Footnote 26 That statute authorizes the apprehension, detention, and removal of non-citizens from the “hostile nation or government” when there is “a declared war between the United States and [a] foreign nation or government” or a threatened, attempted, or successful “invasion or predatory incursion … against the territory of the United States by any foreign nation or government.”Footnote 27 Passed in anticipation of war with France, the Alien Enemies Act has been used three times: during the War of 1812, during World War I, and most notoriously, during World War II to intern non-citizens from Japan, Germany, and Italy.Footnote 28 Notably, in the latter case, the government provided non-citizens apprehended and detained under the Alien Enemies Act with a hearing before a civilian review board to contest their classification as “enemy aliens.”Footnote 29

On March 14, President Trump invoked the act against Tren de Aragua, a transnational criminal organization based in Venezuela, which is neither a foreign government nor the subject of a declared war.Footnote 30 Asserting that Tren de Aragua, which the administration had previously designated as a terrorist organization,Footnote 31 was “undertaking hostile actions and conducting irregular warfare” against the United States, the president proclaimed his administration’s authority to apprehend, detain, and remove Venezuelan citizens age fourteen and older who are members of Tren de Aragua and who do not hold lawful permanent residence in the United States.Footnote 32

The following day, the Trump administration deported to El Salvador—in direct violation of a court order—238 Venezuelan citizens accused of membership in Tren de Aragua and 23 Salvadoran citizens accused of membership in the transnational criminal organization MS-13.Footnote 33 Though most of these detainees had no criminal record in the United States, they were immediately imprisoned in the “Terrorism Confinement Center” known by its Spanish-language acronym CECOT, a maximum-security facility with a reputation for severe human rights violations.Footnote 34

The Trump administration’s actions breached the United States’s non-refoulement obligations, as implemented through the immigration statute and FARRA, as well as constitutional procedural due process and arguably substantive due process protections. Given the known conditions in CECOT, all of these deportations violated the prohibition on expulsion to “another State where there are substantial grounds for believing that [the person] would be in danger of being subjected to torture.”Footnote 35 Venezuelans and Salvadorans deported to El Salvador and subsequently released from CECOT have described being subject to routine beatings, sexual assault, and other inhumane treatment.Footnote 36 The administration’s failure to provide individualized process to any of these individuals also violated the Refugee Convention’s non-refoulement provisions, particularly given that Venezuelan asylum seekers and even refugees were among the deportees, as well as the Fifth Amendment’s procedural due process requirements of notice and a hearing.Footnote 37 It is evident that the administration has a callous disregard for the relevant international legal standards. In anticipation of Salvadoran President Nayib Bukele’s visit to the United States, Trump said, “Bukele was doing a ‘fantastic job’ at imprisoning some ‘very bad people … that should never have been allowed into our country.’”Footnote 38

Perhaps the most notorious case is that of Kilmar Armando Ábrego García, a citizen of El Salvador who had been granted withholding of removal by an immigration judge in 2019 due to his well-founded fear of persecution in El Salvador.Footnote 39 According to the U.S. government, withholding of removal is the central implementing provision for the Refugee Convention, as it provides mandatory protection against deportation to those who can establish that it is more likely than not that they will face persecution if returned to their home country.Footnote 40 In the face of a preliminary injunction, affirmed by the Supreme Court, ordering the Trump administration to bring Ábrego García back to the United States, government officials explicitly refused to return him. The White House instead posted on social media that “he’s NOT coming back.”Footnote 41 When the Supreme Court required the Trump administration to facilitate his return, they took nearly two months to do so.Footnote 42 Upon his return, Ábrego García was jailed in Tennessee to face federal criminal charges for alleged human smuggling, provoking a senior federal prosecutor to resign due to “concerns that the case was being pursued for political reasons.”Footnote 43 Most tragically, Ábrego García did suffer the torture against which he had received an order of protection, including severe beatings, severe sleep deprivation, inadequate nutrition, and psychological torture at the hands of Salvadoran officials in CECOT.Footnote 44 Both the deportation of Ábrego García without any pretense of due process and the cavalier response from the government when his removal was challenged in court exemplify the Trump administration’s bad faith approach to implementing the core provisions of the Refugee Convention and the CAT, not to mention the U.S. Constitution.Footnote 45

The Trump administration continues to expand its practice of rendition to torture, most recently targeting unaccompanied children in violation of special protections that Congress created for these minors in the William Wilberforce Trafficking Victims Protection Reauthorization Act of 2008.Footnote 46 In August 2025, the government put in place plans to deport to Guatemala at least 600 unaccompanied Guatemalan children, many of whom were pursuing asylum claims.Footnote 47 The D.C. District Court immediately granted a temporary restraining order to prevent the removal of these children, some of whom were already on planes on a tarmac.Footnote 48

These removals to torture appear to be only the beginning of a project to dismantle the principle of non-refoulement, as the Trump administration embarks on an expansive program of third-country rendition.Footnote 49 On February 8, the Department of Homeland Security (DHS) instructed its officials to review all cases of non-detained persons to determine whether third-country removals were viable.Footnote 50 On March 28, the federal district court in Massachusetts issued a temporary restraining order against this practice of third-country rendition, protecting all members of a putative class of individuals “subject to a final order of removal from the United States to a third country.”Footnote 51 Two days later, DHS issued updated guidance on third-country removals, authorizing deportation to a third country without prior notice or opportunity for individual assessment or review as long as the U.S. government had obtained a blanket diplomatic assurance from that country that it would not persecute or torture people removed from the United States.Footnote 52 In April, answering what it deemed a “simple question: before the United States forcibly sends someone to a country other than their country of origin, must that person be told where they are going and be given a chance to tell the United States that they might be killed if sent there?,” the district court preliminarily enjoined the practice and certified the class, noting that withholding of removal and CAT protection are mandatory under the statute.Footnote 53 The court relied on the Fifth Amendment’s due process protections in removal cases, citing a Supreme Court decision issued less than two weeks before for the proposition that, “‘notice must be afforded within a reasonable time and in such a manner as will allow them to actually seek … relief in the proper venue before such removal occurs.’”Footnote 54 On June 23, the Supreme Court stayed the preliminary injunction, enabling the government to move forward with third-country renditions to persecution and torture.Footnote 55

The consequences were swift and dire. In early July, the Trump administration deported to South Sudan eight men, including citizens of Cuba, Laos, Mexico, Myanmar, and Vietnam.Footnote 56 South Sudan has been embroiled in civil conflict for decades, and the State Department warns U.S. citizens not to travel there because of “crime, kidnapping, and armed conflict.”Footnote 57 By mid-July, the Trump administration had removed five immigrants, citizens of Cuba, Jamaica, Laos, Vietnam, and Yemen, to Eswatini, a nation with a record of human rights violations.Footnote 58 In September 2025, the Trump administration deported fourteen non-citizens to Ghana, without designating Ghana as a potential destination or indeed any advance notice of their removal. Ghanaian President John Dramani Mahama told the press that he was planning to return all of these migrants to their home countries.Footnote 59 At least five of these individuals had received court orders protecting them against refoulement under CAT or the Refugee Convention.Footnote 60 Ghana forcibly removed one of these men to his home country of Gambia despite his repeated expression of his fear of torture due to his sexual orientation, and despite telling officials that he had been awarded CAT protection against return.Footnote 61 Despite expressing her “alarm[] and dismay[ at] the circumstances under which these removals are being carried out, especially in light of the government’s cavalier acceptance of Plaintiffs’ ultimate transfer to countries where they face torture and persecution,” a federal judge denied a request for a temporary restraining order against their removal to Ghana due to a lack of jurisdiction.Footnote 62

These third-country renditions to apparent sites of persecution and torture are likely to expand as the lawsuits challenging these practices wind their way through the federal courts.

References

1 See Protocol Relating to the Status of Refugees, Art. I(1), entered into force Oct. 4, 1967, 606 UNTS 267 [hereinafter Refugee Protocol] (incorporating Articles 2 through 34 inclusive of the Convention Relating to the Status of Refugees, entered into force Apr. 22, 1954, 189 UNTS 137 [hereinafter Refugee Convention]); Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, Art. 3(1), entered into force June 26, 1987, 1465 UNTS 85 [hereinafter CAT]. Article 33(1) of the Refugee Convention states that “No Contracting State shall expel or return (“refouler”) a refugee in any manner whatsoever to the frontiers of territories where his life or freedom would be threatened on account of his race, religion, nationality, membership of a particular social group or political opinion.” While the United States is not a party to the Convention, it has signed and ratified the Protocol. The non-refoulement provision of the Refugee Convention was implemented into federal law through the 1980 Refugee Act, Pub. L. 96-212, Sec. 203(e), 94 Stat. 102, 107 (Mar. 17, 1980) (codified, as amended, at 8 U.S.C. § 1158(a)(2)(A), (c)(2)(C)). Article 3(1) of the CAT states that “No State Party shall expel, return (refouler) or extradite a person to another State where there are substantial grounds for believing that he would be in danger of being subjected to torture.”). The non-refoulement provision of the CAT was incorporated into federal law through the Foreign Affairs Reform and Restructuring Act of 1998 and its implementing regulations. See Foreign Affairs Reform and Restructuring Act of 1998 (FARRA), Pub. L. 105-277, Div. G, Subdiv. B, Title XXII, Sec. 2242, 112 Stat. 2681, 2681-822 (Oct. 21, 1998) (codified at 8 U.S.C. § 1231 note); 8 CFR § 208.18.

2 Immigration and Nationality Act, Pub. L. 82-414, 66 Stat. 163 (June 27, 1952). Under the Immigration and Nationality Act, any non-citizen who “arrives in the United States (whether or not at a designated port of arrival …), irrespective of such alien’s status,” may apply for asylum. 8 U.S.C. § 1158(a)(1). This provision implements Article 31(1) of the Refugee Convention, which prohibits states parties from imposing “penalties, on account of their illegal entry or presence, on refugees who, coming directly from a territory where their life or freedom was threatened …, enter or are present in their territory without authorization, provided they present themselves without delay to the authorities and show good cause for their illegal entry or presence.” Refugee Convention, supra note 1, Art. 31(1); see also East Bay Sanctuary Covenant v. Trump, 993 F.3d. 640, 674 (2021) (discussing Article 31(1)).

3 Securing Our Borders, Exec. Order 14165, Sec. 7, 90 Fed. Reg. 8467, 8468 (Jan. 20, 2025); see Jacob Katz Cogan, Contemporary Practice of the United States, 119 AJIL 314, 319 (2025); Jacob Katz Cogan, Contemporary Practice of the United States, 117 AJIL 500, 528 (2023).

4 Guaranteeing the States Protection Against Invasion, Proclamation 10888, 90 Fed. Reg. 8333 (Jan. 20, 2025). When an undocumented migrant seeking entry expresses fear of return to the country where U.S. Customs and Border Protection (CBP) intends to send them, the implementing guidance for the proclamation directs officers to refer them for a screening for protection under the CAT. If the CAT screening is positive, the guidance directs CBP to select another third country for removal or place the protection seeker in immigration court proceedings. See RAICES v. Noem, No. 25-306, Memorandum Op. at 32–33 (RDM) (D.D.C. July 2, 2025).

5 East Bay Sanctuary Covenant v. Trump, 950 F.3d 1242 (9th Cir. 2020), rehearing en banc denied, 993 F.3d. 640 (9th Cir. 2021).

6 Proclamation No. 9822, 83 Fed. Reg. 57661 (Nov. 9, 2018); see also Jean Galbraith, Contemporary Practice of the United States, 113 AJIL 376, 380–83 (2019).

7 U.S. Customs and Border Protection, Custody and Transfer Statistics, at https://www.cbp.gov/newsroom/stats/custody-and-transfer-statistics [https://perma.cc/4LM9-NK3M] [hereinafter CBP Custody and Transfer Statistics]. In July, zero migrants at a port of entry were referred to U.S. Citizenship and Immigration Services for a credible fear interview, which is the first step in the asylum process for asylum seekers placed into expedited removal at the border. Ten migrants at the southwest border were placed into removal proceedings, in which they could have sought asylum as a defense to removal. It is not clear from the CBP webpage why these individuals were placed into removal proceedings or what defenses to removal they claimed.

8 RAICES v. Noem, No. 25-306 (RDM), Complaint at 25–30 (D.D.C. Feb. 3, 2025).

9 RAICES v. Noem, No. 25-306 (RDM), Memorandum Op. at 114–24 (D.D.C. July 2, 2025). The court also certified a class of certified a class of “[a]ll individuals who are or will be subject to Proclamation 10888 and/or its implementation, who are present or who will be present in the United States[.]” RAICES v. Noem, No. 25-5243, Concurring Op. of Judge Millet at 12–13 (D.C. Cir. Aug. 1, 2025). A class action lawsuit filed in the Southern District of California on June 11 challenging the proclamation remains pending at the time of writing. See Class Action Complaint, Al Otro Lado, Inc. v. Trump, No. 3:25-cv-01501 (S.D. Cal. June 11, 2025).

10 This holding distinguished the president’s authority to effect restrictions on entry under section 212(f) of the INA from executive authority to restrict access to the asylum process. See RAICES v. Noem, No. 25-5243, Concurring Op. of Judge Millet at 19–26 (D.C. Cir. Aug. 1, 2025).

11 See RAICES v. Noem, No. 25-5243, Order at 1–2 (D.C. Cir. Aug. 1, 2025).

12 See U.S. Dep’t of Homeland Security Press Release, Secretary Kirstjen M. Nielsen Announces Historic Action to Confront Illegal Immigration (Dec. 20, 2018), at https://www.dhs.gov/archive/news/2018/12/20/secretary-nielsen-announces-historic-action-confront-illegal-immigration [https://perma.cc/7B8P-EL2D]; see also Jean Galbraith, Contemporary Practice of the United States, 113 AJIL 376, 384–85 (2019).

13 Immigrant Defenders Law Center v. Noem, No. 25-2581, Order (9th Cir. July 18, 2025).

14 CBP Custody and Transfer Statistics, supra note 7.

15 See Designating Aliens for Expedited Removal, 69 Fed. Reg. 48877, 48880-81 (Aug. 11, 2004).

16 See Designating Aliens for Expedited Removal, 90 Fed. Reg. 8139 (Jan. 24, 2025). This expansion was immediately challenged. See Complaint, Make the Road New York v. Huffman, No. 1:25-cv-00190-JMC (D.D.C. Jan. 22, 2025). With Kristi Noem’s confirmation as secretary of homeland security, the case is now captioned Make the Road New York v. Noem.

17 See Designating Aliens for Expedited Removal, 84 Fed. Reg. 34509 (July 23, 2019), rescinded by Rescission of the Notice of July 23, 2019, Designating Aliens for Expedited Removal, 87 Fed. Reg. 16022 (Mar. 21, 2022). The 2025 expansion does not contain language included in the 2019 expansion, which provided a credible fear interview for any non-citizen placed in expedited removal as well as review for any non-citizen in expedited removal claiming lawful permanent resident, refugee, or asylee status.

18 See Jenny Jarvie & Gabrielle LaMarr LeMee, Trump Boasts of Deporting the “Worst of the Worst.” L.A. Raids Tell a Far Different Story, L.A. Times (July 26, 2025), at https://www.latimes.com/california/story/2025-07-26/trump-deporting-worst-of-worst-reality (“They are going after every single immigrant, regardless of whether they have a criminal background and without care that they are American citizens, legal status holders and foreign-born, and even targeting native-born U.S. citizens” (quoting a spokesperson for California Governor Gavin Newsom).).

19 See 8 U.S.C. § 1225(b)(1).

20 Id.; see also U.S. Citizenship and Immigration Services, Questions and Answers: Credible Fear Screening, at https://www.uscis.gov/humanitarian/refugees-and-asylum/asylum/questions-and-answers-credible-fear-screening [https://perma.cc/2NTX-KFLK].

21 See Jacob Katz Cogan, Contemporary Practice of the United States, 118 AJIL 717, 745 (2024).

22 See Securing the Border, 89 Fed. Reg. 81156, 81160, 81164, 81168 (Oct. 7, 2024).

23 See, e.g., Ko Lyn Cheang, This Man Is a U.S. Citizen by Birth. Why Did ICE Mark Him for Deportation—Again?, S.F. Chronicle (July 25, 2025), at https://www.sfchronicle.com/us-world/article/deport-citizen-immigration-ice-20774259.php (detailing the story of Miguel Silvestre, a U.S. citizen targeted for expedited removal).

24 Make the Road New York v. Noem, No. 25-cv-190 (JMC), Memorandum Op. at 11–12 (D.D.C. Aug. 29, 2025).

25 Id. at 16. The government’s appeal to the D.C. Circuit is pending.

26 50 U.S.C. § 21; Cogan, supra note 3, at 320.

27 50 U.S.C. § 21.

28 See Jennifer K. Elsea, The Alien Enemy Act: History and Potential Use to Remove Members of International Criminal Cartels, Cong. Rsch. Serv. 3 (Apr. 2, 2025), at https://www.congress.gov/crs_external_products/LSB/PDF/LSB11269/LSB11269.4.pdf [https://perma.cc/7DVX-DMUH].

29 See J.G.G. v. Trump, No. 1:25-cv-00766-JEB, Memorandum Op. at 5 (D.D.C. Mar. 24, 2025) [hereinafter J.G.G. Memorandum Op.].

30 See Invocation of the Alien Enemies Act Regarding the Invasion of the United States by Tren de Aragua, 90 Fed. Reg. 13033 (Mar. 14, 2025) [hereinafter Alien Enemies Act Invocation]. For further discussion of the questions raised by the invocation of the Alien Enemies Act against Tren de Aragua, see Steve Vladeck, 5 Big Questions in the Alien Enemies Act Litigation, Just Security (Mar. 16, 2025), at https://www.justsecurity.org/109168/alien-enemies-act-litigation; and Rebecca Ingber, Judicial Deference and Presidential Power Under the Alien Enemies Act, Just Security (May 20, 2025), at https://www.justsecurity.org/113589/political-question-alien-enemies-act.

31 See Jacob Katz Cogan, Contemporary Practice of the United States, 119 AJIL 573, 574 (2025).

32 Alien Enemies Act Invocation, supra note 30, at 13034.

33 See J.G.G. Memorandum Op., supra note 29, at 6–11.

34 A ProPublica report found that, of the two hundred thirty-one deported Venezuelans, seventy-five had pending asylum claims. One hundred eighteen of the men were in the middle of immigration court proceedings, which should have protected them from removal. At least one hundred ninety-seven had not been convicted of crimes in the United States, and only six had been convicted of violent crimes. One hundred sixty-six of the men had tattoos, supporting claims that the government relied heavily on the existence of tattoos to categorize the men as members of Tren de Aragua, though experts say that the gang does not use tattoos, so they do not indicate membership in the group. See Pro Publica, the Texas Tribune, Alianza Rebelde Investiga & Cazadores de Fake News, The Men Trump Deported to a Salvadoran Prison, Pro Publica (July 23, 2025), at https://projects.propublica.org/venezuelan-immigrants-trump-deported-cecot; see also Julie Turkewitz, Jazmine Ulloa, Isayen Herrera, Hamed Aleaziz & Zolan Kanno-Youngs, “Alien Enemies” or Innocent Men? Inside Trump’s Rushed Effort to Deport 238 Migrants, N.Y. Times (Apr. 16, 2025), at https://www.nytimes.com/2025/04/15/world/americas/trump-migrants-deportations.html; Noah Lanard & Isabela Dias, “You’re Here Because of Your Tattoos,” Mother Jones (Mar. 26, 2025), at https://www.motherjones.com/politics/2025/03/trump-el-salvador-venezuela-deportation-prison-cecot-bukele.

35 CAT, supra note 1, Art. 3(1).

36 See Sergio Martínez-Beltrán & Manuel Rueda, “Hell on Earth”: Venezuelans Deported to El Salvador Mega-prison Tell of Brutal Abuse, NPR (July 27, 2025), at https://www.npr.org/2025/07/27/nx-s1-5479143/hell-on-earth-venezuelans-deported-to-el-salvador-mega-prison-tell-of-brutal-abuse.

37 See Refugee Convention, supra note 1, Art. 33; see also J.O.P. v. Department of Homeland Security, No. 8:19-cv-01944-SAG, Memorandum Op. at 4–5 (D. Md. Apr. 23, 2025) (challenging deportation of Venezuelan asylum seeker to El Salvador under the Alien Enemies Act); Jonathan Blitzer, The Makeup Artist Donald Trump Deported Under the Alien Enemies Act, New Yorker (Mar. 31, 2025), at https://www.newyorker.com/news/annals-of-immigration/the-makeup-artist-donald-trump-deported-under-the-alien-enemies-act (detailing case of Andry José Hernández Romero, a Venezuelan asylum seeker deported to El Salvador under the Alien Enemies Act); David Noriega, Judge Orders Trump Administration to Allow Attorneys Access to Venezuelan Man in Salvadoran Prison, NBC News (May 19, 2025), at https://www.nbcnews.com/news/us-news/venezuelan-man-admitted-us-refugee-sent-salvadoran-prison-rcna207642 (detailing case of Venezuelan refugee Widmer Josneyder Agelviz Sanguino who was deported to El Salvador under the Alien Enemies Act); Syra Ortiz Blanes & Verónica Egui Brito, U.S. Sent Venezuelan Man with Pending Political Asylum Case to El Salvador Mega Prison, Miami Herald (Mar. 27, 2025), at https://www.miamiherald.com/news/local/immigration/article302671624.html (detailing case of Venezuelan asylum seeker Frengel Reyes Mota who was deported to El Salvador under the Alien Enemies Act).

38 James FitzGerald, El Salvador’s Leader Will Not Return Man Deported from the US in Error, BBC News (Apr. 14, 2025), at https://www.bbc.com/news/articles/c9vedkm7w2do (quoting President Trump).

39 Abrego Garcia v. Noem, No. 8:25-cv-00951-PX, Memorandum Op. at 4 (D. Md. July 23, 2025).

40 To support this interpretation, government officials point to Immigration and Naturalization Service v. Cardoza-Fonseca, 480 U.S. 421, 428–29 (1987) (“Article 33.1 of the Convention …, which is the counterpart of § 243(h) [the withholding of removal provision] of our statute, imposed a mandatory duty on contracting States not to return an alien to a country where his “life or freedom would be threatened” on account of one of the enumerated reasons.”).

41 The White House (@WhiteHouse), X (Apr. 18, 2025, 10:42 a.m.), at https://x.com/WhiteHouse/status/1913241658579440126.

42 Noem v. Abrego Garcia, No. 24A949 (Sup. Ct. Apr. 10, 2025); Abrego Garcia v. Noem, No. 8:25-cv-00951-PX, Memorandum Op. at 2–3 (D. Md. July 23, 2025).

43 Katherine Faulders, James Hill & Alexander Mallin, Kilmar Abrego Garcia Brought Back to US, Appears in Court on Charges of Smuggling Migrants, ABC News (June 6, 2025), at https://abcnews.go.com/US/mistakenly-deported-kilmar-abrego-garcia-back-us-face/story?id=121333122. After a federal judge in Tennessee ordered Ábrego García’s release on July 23, the government waited for a month, releasing him three days before a scheduled check-in with ICE. At that check-in, ICE again arrested him and threatened him with removal to Uganda. See United States v. Abrego Garcia, No. 3:25-cr-00115, Memorandum Op. (M.D. Tenn. July 23, 2025); Christian Farias, The U.S. Government’s Extraordinary Pursuit of Kilmar Ábrego García, New Yorker (Sept. 15, 2025), at https://www.newyorker.com/news/the-lede/the-us-governments-extraordinary-pursuit-of-kilmar-abrego-garcia.

44 Abrego Garcia v. Noem, No. 8:25-cv-00951-PX, Memorandum Op. at 21–23 (D. Md. July 23, 2025).

45 On the obligation of good faith and asylum, see Vienna Convention on the Law of Treaties, Art. 26, May 23, 1969, 1155 UNTS 331, 8 ILM 679; Emilie McDonnell, Externalisation as a Breach of the Good Faith Principle, Externalizing Asylum, at https://externalizingasylum.info/externalisation-as-a-breach-of-the-good-faith-principle [https://perma.cc/6ZQL-J7N4].

46 L.G.M.L. v. Noem, No. 1:25-cv-02942, Memorandum Op. at 3 (D.D.C. Sept. 18, 2025).

47 Complaint, L.G.M.L. v. Noem, Case 1:25-cv-02942 (D.D.C. Aug. 31, 2025).

48 L.G.M.L. v. Noem, Case 1:25-cv-02942, Memorandum Op. at 9–10 (D.D.C. Sept. 18, 2025) (granting a preliminary injunction); see also Kettlewell v. Noem, No. CV-25-00491-TUC-RM, Order (D. Ariz. Aug. 31, 2025) (temporary restraining order prohibiting the removal of fifty-three Guatemalan unaccompanied children); Kettlewell v. Noem, No. CV-25-00491-TUC-RM, Order (D. Ariz. Sept. 8, 2025) (temporary restraining order prohibiting the removal of twelve Honduran unaccompanied children and four additional Guatemalan unaccompanied children); Kettlewell v. Noem, No. CV-25-00491-TUC-RM, Order (D. Ariz. Sept. 25, 2025) (preliminary injunction prohibiting the removal of all sixty-nine unaccompanied children).

49 See Jeff Crisp, Trump Is Building a Machine to Disappear People, N.Y. Times (July 23, 2025), at https://www.nytimes.com/2025/07/23/opinion/migration-deportation-sudan-trump.html; David Scott FitzGerald, The Sordid History of Offshoring Migrants, For. Aff. (July 10, 2025), at https://www.foreignaffairs.com/united-states/sordid-history-offshoring-migrants.

50 See Dep’t of Homeland Security v. D.V.D., slip op. at 3 (S. Ct. June 23, 2025) (Sotomayor, J., dissenting) [hereinafter D.V.D.] (quoting DHS international guidance).

51 See id. at 5.

52 See, D.V.D. v. U.S. Dep’t of Homeland Security, No. 25-10676-BEM, Memorandum and Order on Plaintiffs’ Motions for Class Certification and Preliminary Injunction at 7 (D. Mass. Apr. 18, 2025) (summarizing DHS guidance).

53 See id. at 37–44, 48.

54 Id. at 38 (quoting Trump v. J.G.G., 2025 WL 1024097, at *2 (Sup. Ct. Apr. 7, 2025) (per curiam)).

55 D.V.D., supra note 50, at 1.

56 See US Completes Deportation of 8 Men to South Sudan after Weeks of Legal Wrangling, AP (July 5, 2025), at https://apnews.com/article/trump-south-sudan-djibouti-deport-supreme-court-50f9162cff680b5c8729873e11d514e9.

57 U.S. Department of State, South Sudan Travel Advisory (Mar. 8, 2025), at https://travel.state.gov/content/travel/en/traveladvisories/traveladvisories/south-sudan-travel-advisory.html [https://perma.cc/66BP-UJVQ] (“Do not travel to South Sudan due to crime, kidnapping, and armed conflict.”).

58 See Maanvi Singh, US Deports Migrants to Eswatini, African Country with Troubling Human Rights Record, Guardian (July 16, 2025), at https://www.theguardian.com/us-news/2025/jul/16/trump-administration-deports-five-migrants-to-eswatini-in-southern-africa.

59 See Chris Cameron, Lawsuit Accuses Trump Officials of More Wrongful Deportations, N.Y. Times (Sept. 13, 2025), at https://www.nytimes.com/2025/09/13/us/politics/trump-lawsuit-wrongful-deportations-ghana.html.

60 See Complaint, D.A. v. Noem, Case 1:25-cv-03135-TSC (D.D.C. Sept. 12, 2025).

61 D.A. v. Noem, Case 1:25-cv-03135-TSC, Memorandum Op. and Order at 8 (D.D.C. Sept. 15, 2025).

62 Id. at 15.