DHS General Counsel James Percival says officials face two choices with criminal migrants their home nations refuse, secure a third country or release them into American communities.
The Supreme Court this week stayed a lower-court judgment that had restricted the Trump administration’s third-country deportation policy, allowing the guidance to remain in effect while the justices take up the merits later.
Arguments are set for December. The coming fight centers on agency procedures, due process, and safeguards against torture, not on whether federal law already authorizes sending removable aliens to a willing third country when their home nation will not take them back.
That is the dilemma Fox News reported Homeland Security’s top lawyer laying out in plain language: either find another country willing to accept people the United States has every right to remove, or put them back on American streets.
The temporary stay keeps a core enforcement tool available while the Court sorts the process questions. It also puts fresh weight on a strategy the administration has pursued by reviving immigration authorities that sat unused for years.
Readers following the broader removal fight can see the same through-line in how the high court lets third-country deportations continue ahead of those December arguments.
James Percival, general counsel at the Department of Homeland Security, told interviewers why third-country removals matter for public safety when a removable alien cannot go home.
Home countries often refuse the hardest cases. That leaves the United States holding the bag unless another nation steps up.
Percival described the diplomatic reality without varnish.
"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."
He returned to the same fork in the road on the most serious offenders.
"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."
That is not abstract policy talk. It is the daily consequence of a system that orders removal, then watches foreign governments slam the door.
Recent enforcement actions against convicted foreign nationals, including cases where ICE deports nearly 200 Haitian nationals with serious criminal records, show why the administration treats these removals as more than a paperwork exercise.
Percival’s core legal claim is straightforward. Congress wrote third-country authority into federal immigration law nearly three decades ago.
The Illegal Immigration Reform and Immigrant Responsibility Act, signed by President Bill Clinton in 1996, included the third-country provision. Percival says the power is not a creative stretch.
He put it this way:
"It’s in the statute expressly that we can do this."
He went further on how past officials treated those tools.
"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. A lot of people in government sort of treat their authority like fine china. They're afraid if they ever actually use it, someone will take it away. And if you've ever owned fine china, it's like you can find yourself at the end of your life and you were so afraid you would break it you never used it."
The Trump administration’s approach, as Percival describes it, is to take the china out of the cabinet. Use the authorities Congress already enacted instead of leaving criminal aliens in limbo inside the United States.
That revival mindset sits alongside other Homeland Security pressure campaigns, including moments when the DHS chief calls out Democrats for coaching resistance to immigration enforcement.
Percival has used a public “Daily Deportee” series on X to highlight criminal cases in which the home country will not accept the person back. One name he has cited is Kyaw Mya, a Burmese national whose country will not take him.
He also described a case of a man who tried to kill someone, saw the gun misfire, then pistol-whipped the victim instead, served time, and got out. The point of the examples is the same: removal orders mean little if no destination will open the door.
He plans to feature another case from the Bush administration years, a migrant who served time, was not removed, and later allegedly reoffended after release. The pattern he wants the public to see is failure to finish the job, followed by new victims.
When foreign governments refuse their own nationals, third-country deals become the remaining lawful off-ramp short of release. Percival does not pretend Americans would choose the destinations for themselves.
"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, a small nation on Africa’s Atlantic coast, has been part of that architecture. Reporting around the policy notes that President Teodoro Obiang’s government, in power since 1979, received $7.5 million from Washington as part of an agreement with Malabo to accept third-country deportations.
Human rights advocates pushed back. They pointed to allegations that deportees were beaten by authorities there. Those claims are part of the political blowback; they are not presented in the available reporting as fully adjudicated findings that erase the statutory removal problem.
The legal backdrop includes a 2001 Supreme Court decision involving Kestutis Zadvydas, a stateless legal resident ordered deported because of his criminal record. He had been 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, continued detention can be challenged if removal is not reasonably foreseeable. In plain terms, if no country will take the person, the government cannot hold him forever without a path to removal.
That clock is exactly why third-country arrangements matter. Without a destination, the practical alternative trends toward release into U.S. communities, the outcome Percival refuses to treat as acceptable for serious offenders.
Homeland Security Secretary Markwayne Mullin has also kept a separate off-ramp on the table: $3,000 and a flight home for those who take it. Percival pointed to that option as still available.
"It’s not too late to get [$3,000 and a flight home]."
Voluntary departure with cash assistance is one track. Compulsory third-country removal is another when the person is removable and the home country refuses. Both sit inside a wider enforcement posture that has included high-profile pressure, such as when DHS Secretary Mullin says Ilhan Omar faces scrutiny tied to possible immigration consequences.
The justices’ stay does not end the litigation. December arguments will test whether DHS procedures comply with federal immigration law, due process, and anti-torture safeguards.
Percival’s public case is that the underlying authority is already express in statute, that prior administrations left tools idle, and that the real-world alternative to third-country removals is releasing people no other nation will house.
Illegal immigrants with removal orders and serious criminal records are not a theoretical category. When home governments refuse them, the United States either completes the removal through a third country or absorbs the risk. Detention limits after Zadvydas make the second path more likely if the first is blocked.
The administration is also moving individual cases through ordinary channels, including matters such as when ICE detains Milo Yiannopoulos on visa grounds and seeks removal to the United Kingdom. Different facts, same principle: immigration law is supposed to mean exit when the legal conditions are met.
Percival’s fine-china critique is aimed at years of hesitation. The statute did not vanish. The diplomatic work is hard. The public-safety cost of doing nothing is clearer every time a refused criminal alien remains inside the country after serving time.
Taxpayers and lawful residents live with the results either way. A removal system that cannot finish removals is not a serious system.
When foreign governments will not take back their own criminal nationals, Americans should not be forced to keep them by default. The law already supplies the tools, and using them is basic self-government, not excess.
