Shortly after the 2024 election, the incoming Trump administration reportedly floated a plan to send deportees from the United States to third countries, including the Turks and Caicos, the Bahamas, Panama, and Grenada. Now, in an interesting twist, Mexican President Claudia Sheinbaum has indicated a willingness to accept “other than Mexican” (OTM) aliens from the United States. It’s not as crazy as it might sound — because that’s more or less what the Immigration and Nationality Act (INA) allows. The only real question is the cost.
“Recalcitrant Countries”. Briefly, deportation is a multi-step process that begins shortly after an alien is stopped at the borders or ports or is arrested in the United States.
Aliens inadmissible at the borders and ports because they lack proper entry documents are subject to “expedited removal” under section 235(b)(1) of the INA, meaning CBP can simply remove them unless they request asylum or claim a fear of harm if returned, in which case they are referred to USCIS asylum officers to determine whether they have a “credible fear” of return.
If they are determined to have a credible fear, they then join aliens inadmissible and removable on other grounds in removal proceedings under section 240 of the INA before immigration judges. If at the end of that process, once all the appeals (if any) are considered and those aliens are ordered removed, DHS has a duty under section 241(a)(1)(A) of the INA to remove them within 90 days.
You may wonder then why there are more than 1.42 million aliens under final removal orders who are not detained but instead still in the United States.
One reason is that the Biden administration didn’t prioritize the removal of the vast majority of those aliens, with the exception of those with serious criminal convictions or who posed a threat to the national security, regardless of what Congress had to say.
The second reason — and the one most pertinent to this analysis — is that some subset of those aliens under final orders of removal are nationals of so-called “recalcitrant countries”, that is, countries that refuse to issue the travel documents DHS needs to physically deport them.
Section 243(d) of the INA provides a mechanism to force those countries to accept back their nationals by restricting visas to nationals of those countries who are attempting to enter the United States legally. Both the George W. Bush and Obama administrations used that power on a limited basis, and the first Trump administration employed it much more broadly, and it usually had the intended effect.
One issue that blunts the effectiveness of 243(d) is that there are strong lobbies in the United States supporting continued and unfettered visa issuances for nationals of many of the worst recalcitrant offenders, including China and India.
A second is that the United States has poor diplomatic relationships with other recalcitrant countries — like Cuba and Venezuela — which limits our ability to use visa threats to compel compliance.
Personally, the latter issue is likely overblown, because (aside from North Korea) even countries that hate the U.S. government still love selling products to American consumers, giving us tariff leverage we can use to force compliance.
None of this would matter if DHS could simply keep aliens under final orders locked up until they can be shipped out, but the Supreme Court in 2001 limited the indefinite detention of all except for the most dangerous aliens facing deportation.
Consequently, detained aliens under final removal orders for whom there is “no significant likelihood of removal in the reasonably foreseeable future” must generally be released after six months.
“Countries of Removal”. At the outset of those section 240 removal proceedings, most aliens are given the chance to designate a “country of removal” to which they would be sent if they are ultimately deported.
Asylum applicants generally refuse to designate a country because it would undermine their claims, and a few others choose tropical paradises or EU countries that are unlikely to take them. In either case, DHS gets an opportunity to designate a place to which the alien would be sent, usually the alien’s country of nationality.
Which brings me to section 241(b) of the INA, “countries to which aliens may be removed”. It provides a whole calculus to determine which country or countries aliens can and should be deported to.
Under that calculus, “arriving aliens” stopped at ports of entry aren’t allowed to pick a removal country. Instead, they are supposed to be returned to the country in which they boarded the conveyances that brought them to the United States.
There are a couple of exceptions to that rule, the most important being that it doesn’t apply if the alien came here on a conveyance from a “contiguous country”, i.e., Mexico or Canada.
The other obvious exception is where the country of last departure won’t take the alien back. In that case, the alien can be sent to the alien’s country of nationality, the place the alien was born, anywhere the alien has a residence, or if removal to any of those countries “is impracticable, inadvisable, or impossible”, to any other country that will take the alien.
All other aliens — those who weren’t stopped at the ports or who were but came from a contiguous country — get to designate a removal country, but again there are exceptions.
Mexico, Canada, and any island adjacent to the United States or a U.S. territory are off the list unless the alien is “a native, citizen, subject, or national of, or has resided in, that designated territory or island”.
And then as noted, though rare, aliens get cute with their designations, in which case DHS or the court will pick an alternate country.
In such cases, DHS must first try to remove the alien to the country that the alien designates, unless that country gives a hard “no” or it fails to say whether it will take the alien one way or the other within 30 days, or DHS “decides that removing the alien to the country is prejudicial to the United States”.
If that happens, by statute, DHS must attempt to send the alien “to a country of which the alien is a subject, national, or citizen”, unless that country refuses to take the alien back or fails to respond in 30 days.
“Additional Removal Countries”. If all of this seems overly complicated, it usually isn’t in practice, but to Congress’s credit it really thought through all the potential scenarios in which DHS would be stuck with an alien under a final removal order and added a last catch-all provision, section 241(b)(2)(E) of the INA, “additional removal countries”, that ignores many of the earlier rules:
If an alien is not removed to a country under the previous subparagraphs of this paragraph, [DHS] shall remove the alien to any of the following countries:
(i) The country from which the alien was admitted to the United States.
(ii) The country in which is located the foreign port from which the alien left for the United States or for a foreign territory contiguous to the United States.
(iii) A country in which the alien resided before the alien entered the country from which the alien entered the United States.
(iv) The country in which the alien was born.
(v) The country that had sovereignty over the alien's birthplace when the alien was born.
(vi) The country in which the alien's birthplace is located when the alien is ordered removed.
(vii) If impracticable, inadvisable, or impossible to remove the alien to each country described in a previous clause of this subparagraph, another country whose government will accept the alien into that country.
Respectfully, Congress could have just stuck with the last clause, but that’s beside the point.
“Mexico Opens Possibility of Receiving Non-Mexican Deportees from Trump”. As noted at the outset, the incoming Trump team has reportedly been exploring ways it can plow through that backlog of 1.42 million-plus aliens under final orders who are currently crowding DHS’s non-detained docket of aliens, while also setting the stage for deporting an untold number of others.
The Bahamas has “firmly rejected” any attempts to send non-Bahamians there, however, while Panama claims it hasn’t been asked but in any event doesn’t “have the capacity to be a host country”, and Turks and Caicos complains that it “is already grappling with the challenges of irregular migration and will not allow external policies to exacerbate these issues or compromise its national security”. Grenada’s response meanwhile was nearly identical to Panama’s.
The incoming administration hasn’t said much one way or the other, so it’s impossible to know whether any reporting on potential removals to those countries is anything more than rumor and innuendo from outlets that have been busy peddling those products since the election.
That said, however, one obvious country to which removable aliens could be sent is the one many of those aliens passed through on the way to the United States, Mexico. It checks any number of boxes under section 241(b) of the INA.
In a January 4, article captioned “Mexico opens possibility of receiving non-Mexican deportees from Trump”, CNN reported that the country’s president, Claudia Sheinbaum, indicated during a press conference that she would reluctantly be open to taking some OTMs if DHS can’t send them elsewhere, suggesting her government was willing to “collaborate through different mechanisms”.
That’s a bit vague, but she appeared to clarify her intentions when she stated: “There will be time to speak with the United States government if these deportations really happen, but we will receive them here, we are going to receive them properly and we have a plan.”
Again, it’s not clear from Sheinbaum’s statements whether the incoming administration has asked Mexico to take OTMs, but her pragmatism is a switch from December when the president signaled that she planned to ask Trump to send those deportees to their homes, not hers.
Keep three things in mind even if Mexico does take OTMs: (1) it likely won’t be doing so gratuitously; (2) it will be choosy about which OTMs it accepts; and (3) those aliens probably won’t all stay in Mexico.
As CNN notes, Sheinbaum “did not offer details, but Mexico could limit [her offer] to certain nationalities or request compensation from the US to move the deportees from Mexico to their home countries”. That very last point is important because Mexico has robust relations with countries that aren’t friendly to the United States.
For example, back in March, Mexico reached an agreement with Venezuela to send deportees back to that South American country, after inking deals with Mexican and Venezuelan companies to hire them.
There were only around 5,000 Venezuelan migrants in Mexico at the time, and it remains to be seen whether the Maduro government would be amenable to accepting countless U.S. returnees via Mexico. The 135,000 barrels of oil we import from Venezuela per day — one fifth of the country’s total — may give Trump and Sheinbaum leverage.
Moreover, Havana describes its relationship with Mexico City as “brotherly”, which might provide a Mexican conduit for U.S. removals.
So, why would Sheinbaum change her tune? Part of it may have to do with the fact that the United States is far and away Mexico’s largest trading partner, the source of 56 percent of its imports and (more importantly) 77 percent of its exports, the latter worth roughly $500 billion annually.
Trump has shown his willingness to use U.S. economic muscle to get his way with Mexico in the past, and has recently threatened to do so again, so she may be acting preemptively.
That said, as CNN has gently intimated, Sheinbaum may also seek some sweeteners in any returnee deal. My colleague Todd Bensman reported that the last Mexican president extorted billions in aid from the Biden administration to crack down on migration routes in 2024, and his successor likely wants more where that came from to help Trump fulfill a key campaign promise.
Mexico City has opened the door to accepting “other than Mexican” deportees, and the law allows DHS to use that door as an exit for hundreds of thousands of aliens here illegally. The only real question is how high the fee will be — because Claudia Sheinbaum likely isn’t offering this out of the kindness of her heart.