Why Immigrants Living in the U.S. Today Face an Uncertain Future
Question: Can the U.S. government legally deport a non-citizen to a third-party country?
Although federal immigration law allows deportation to a third country, this action was never taken until Trump 2.0.
Federal courts are being asked to decide whether third-country removal are lawful in light of the countries Trump 2.0 has been sending people to.
In the past, when someone was stateless or could not be returned to their home country, the U.S. permitted these individuals to remain, albeit stripped of their LPR status.
A full pardon is the only protection available to someone who was stripped of the LPR due to a conviction under state law.
All governors should exercise their clemency/pardon authoriity on behalf of those impacted if they don't support Trump 2.0's immigration policies.
Today, two of my immigration/clemency clients face an uncertain future as a result of their legal status for two reasons: 1) Trump 2.0’s inhumane immigration policies, and 2) the enactment of the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 (“IIRIRA” or “1996 Act”). Sadly, their predicament is not unique.
My clients aren’t bad people – the “worst of the worst” -- as Trump and his acolytes repeatedly proclaim to justify their inhumane tactics.
Both my clients (I’ll refer to them “Tariq” and “Ivan”) came to the U.S. with their families as children. They left countries where they were either shunned or bullied because of their religion or ethnicity. In the U.S., both found their forever homes and became legal permanent residents (“LPR”), along with their parents and siblings.
But before either could apply for U.S. citizenship both made the kind of mistakes teens and emerging adults are known to make – they got arrested and convicted. As a teen, one of my clients struggled with a heroin addiction.
What my clients didn’t realize – nor their parents or their defense counsel -- was that their youthful criminal antics would strip them of their legal status. In fact, it wasn’t until 2010 that the U.S. Supreme Court recognized a constitutional duty to inform a non-citizen defendant of the adverse immigration implications of pleading guilty to a crime.
The U.S. Supreme Court inexplicably declined to apply this new constitutional duty retroactively. This meant that non-citizen defendants who’d pled guilty to certain crimes between 1997 and February 2010, were left with no legal right to reopen their cases and withdraw their guilty pleas or argue that they received ineffective assistance of counsel.
Removal by Any Means
That both of my clients have remained in the U.S. over these past 20+ years reflects the vagaries of our ever-shifting attitudes towards immigrants.
In the 2000s, when my clients were fighting their deportation cases, it was not our government’s practice to deport non-citizen residents to countries other than their place of birth or last residency. Even though the Immigration and Nationality Act (“INA”) permits the federal government to send alien residents to any country willing to accept them, this option was never exercised until last year by the Trump Administration.
When Going Home is Not an Option
In 2002, the federal government initially sought to deport Tariq to Pakistan (where his parents held citizenship) and later to Saudi Arabia (where Tariq was born). Both countries refused to accept Tariq because he did not hold citizenship in either country. Due to Tariq’s “stateless” status, he was allowed to remain in the U.S. In 2008, an immigration judge barred the government from deporting Ivan to Ukraine, his birth place. Like Tariq, Ivan was allowed to remain.
Today, however, the Trump Administration has made a habit of deporting people to any country willing to take them for a price. In 2025, we watched as the Trump administration trafficked people to El Salvador, South Sudan, Costa Rico, Panama, and Uganda. What we are paying these countries to accept these individuals remains a guarded secret.
In late January, Ivan was arrested and placed in ICE detention after appearing for his annual “check-in.” In past years, these check-ins were routine and uneventful. We knew this check-in was going to be anything but uneventful.
Ivan spent just over a month in ICE detention. He was released only after his immigration attorney filed a habeas petition to seek his release while the government argues why it should be allowed to deport him to a third country. Ivan, who does not reside in Illinois, was lucky because ICE didn’t have to transport him to an ICE detention facility located in another state.
Should ICE detain Tariq, he will be sent out of state because there are no ICE detention facilities located in Illinois. The facility in Broadview, which was the site of daily protests and legal action last year, is only a processing center – meaning that it’s intended to hold someone for a day or two until the detainee can be moved to a facility designed to hold people in custody for weeks, months or years.
IIRIRA’s Enduring Legacy
In 1995, during President Bill Clinton’s first term, Republicans regained control over both branches of Congress. The last time Republicans controlled both the House and the Senate Dwight Eisenhower was president.
Like other inflection points in our history, the political winds in 1996 were strong enough to push through several bills intended to combat illegal border crossings. President Clinton signed one of those bills – IIRIRA – in September 1996.
President Clinton explained that IIRIRA would strengthen “the rule of law by cracking down on illegal immigration at the border, in the workplace, and in the criminal justice system – without punishing those living in the United States legally.” (Emphasis added.) http://www.presidency.UCSB.edu/node/221661
Even though the purpose of IIRIRA was not to penalize those who had entered the U.S. legally and had authorization to remain, it did. Many blame IIRIRA for criminalizing our nation’s immigration law.
Prior to 1996, there were two categories of deportable crimes: 1) crimes involving moral turpitude (CIMT), and 2) aggravated felonies (e.g., murder, drug or firearms trafficking). IIRIRA significantly expanded the definition of aggravated felony. The 1996 law also allowed the federal government to deport any non-citizen convicted of at least two CIMTs (e.g., low-level misdemeanor crimes). (To learn more about CIMTs and aggravated felonies, please read the blog post What Does it Mean to Have a Conviction Under U.S. Immigration Law.)
IIRIRA also set out to define what constitutes a conviction for immigration purposes. Instead of relying on how the word has been defined by each state in their criminal code, Congress chose a much broader definition.
Another critical feature of IIRIRA was the establishment of federal-state partnerships (Section 287) to assist Immigration and Nationalization Service (INS) (the precursor to ICE) in locating/detaining non-citizens subject to removal. Both Tariq and Ivan were detained with the assistance of state/county resources (i.e., IDOC, county probation services).
Today, state law enforcement agencies are being newly incentivized to enter into these Section 287 partnerships in exchange for significant funding and bounty bonuses.
Performing a Mitzvah
There is only way Tariq and Ivan can be shielded from deportation to a third country: receiving a full and unconditional pardon from Governor J.B. Pritzker.
In 2025, Gov. Kathy Hochul granted a full pardon to a Cambodian man who committed a serious crime when he was a juvenile. The governor’s action – unsurprisingly applauded by some and criticized by others – kept the man from being sent back to Cambodia, a country he left as a young child.
Both my clients have “paid” dearly for their youthful crimes. Now in their 40s and 50s, both successfully completed their sentences but continue to suffer the daily indignities of lacking legal status. Tariq once described these conditions as “living in a prison without bars.” He made this remark before the current war being waged against non-citizen residents.
Governor Pritzker: If you are listening, it is not too late to perform a mitzvah for Tariq and Ivan – or any other pardon petitioner at risk of deportation.