Despite court wins, immigrants stay detained as ICE seeks to deport them

WASHINGTON — R.V. had already spent six months detained at a facility in California when he won his case in immigration court in June.

He testified that he had fled his native Cuba in 2024 after protesting against the government, for which he was jailed, surveilled and persecuted. So, after being kidnapped in Mexico, he entered the U.S. illegally and told border agents he was afraid for his life.

An immigration court judge granted him protection against deportation to Cuba, and R.V., 21, was looking forward to reuniting with family in Florida.

But R.V., who asked that his full name not be used for fear of retaliation from the government, hasn’t been released. At the detention center, he said, agents have told him they’ll still find a way to deport him — if not to Cuba, then maybe Panama or Costa Rica.

“The wait is so hard,” he said in an interview. “It’s as if they don’t want to accept that I won.”

R.V. is among what immigration attorneys describe as an escalating trend: some immigrants who win protection from deportation to their home countries are being detained indefinitely.

Often, the person has been held while the federal government appealed their win or sought another country willing to take them in.

The government has long had the ability to make such appeals or to seek another country where it could deport someone; the Department of Homeland Security generally has 90 days to find somewhere else to send them.

But, in practice, such third-country removals were rare, so the person was typically released and allowed to remain in the U.S.

That practice has changed under the Trump administration. Recent instructions to Immigration and Customs Enforcement personnel favor keeping people detained. A June 24 memo, for instance, states that “field offices no longer have the option to discretionarily release aliens.”

At issue are cases involving immigrants who, rather than winning asylum, are granted one of two kinds of immigration relief, known as orders of “withholding of removal” and protection under the international Convention Against Torture. Both have higher burdens of proof than asylum but don’t provide a pathway to citizenship.

These forms of relief differ from asylum in a key way: while asylum protects against deportation anywhere, the others only protect against deportation to a country where the person risks harm or torture.

Jennifer Norris, an attorney at the Immigrant Defenders Law Center, said the government’s actions now effectively render withholding of removal and protection under the anti-torture convention meaningless.

“We have entered a dangerous era,” Norris, said. “These are clients who did everything right. They won their cases before an immigration judge and now they’re treated like criminals and remain in detention even after an immigration judge rules in their favor.”

Laura Lunn, advocacy and litigation director with the Rocky Mountain Immigrant Advocacy Network in Colorado, noted that rules against double jeopardy do not apply in these cases, so the government has the ability to appeal when it loses.

“Here, they have so much control over whether someone remains detained because, if they just file an appeal, that person can just sit in detention for at least six months or what could be years,” Lunn said.

Homeland Security did not respond to specific questions and declined to comment.

Lawyers representing immigrants in prolonged detention say the government is keeping people locked up in hopes of wearing down their clients so they abandon their fight to remain in the U.S.

Ngựa, a Vietnamese man who asked to be identified by his family nickname, meaning horse, has been detained in California since he crossed the southern border illegally in March.

Ngựa fled Vietnam last year after being tortured by police officers who tried to extort him for a “protection tax,” according to his asylum application. When he refused, the officers beat and jailed him, and threatened to kill him and his family.

An immigration judge recently denied Ngựa asylum but granted him protection under the anti-torture convention. His pro bono lawyers have appealed the asylum denial.

In an interview through an interpreter, he said he chose to seek safety in the U.S. because he believed that the government of any other country would deport him back to Vietnam. He said he didn’t anticipate that U.S. officials would try to get rid of him.

Ngựa said ICE officers told him they know they can’t send him back to Vietnam, but will find another country willing to take him in. Every morning, he said, an officer goes from dormitory to dormitory asking whether anyone wants to self-deport.

The thought of being sent away keeps him up at night, but the alternative is nearly just as bad: “I’m afraid that I will be detained here for years,” he said.

DHS regulations allow continued detention when “there is a significant likelihood of removing a detained alien in the reasonably foreseeable future.”

Such scenarios are increasingly possible since a Supreme Court ruling in June broadened the ability for immigration authorities to quickly deport people to countries where they have no personal connection.

After the ruling, ICE released guidance directing agents to generally give migrants slated for removal to a third country “at least 24 hours” notice, but as little as six hours in “exigent circumstances.”

The guidance also said the U.S. needs to receive credible diplomatic assurances that the deported people will not be persecuted or tortured.

This year, the Trump administration has brokered deals with several countries, including Ghana, El Salvador, and South Sudan — which is on the brink of civil war — to accept deportees.

“It has just become more of a regular practice for the government to hold onto people who win protection because they are actively looking, in most cases, for a third country to accept them,” said Trina Realmuto, executive director of the National Immigration Litigation Alliance.

Realmuto is one of the lead attorneys in the case challenging Homeland Security’s practice of third-country removals.

Federal law states that Homeland Security should first seek out alternative countries to which the person being deported has some personal connection, and then, if that’s “impracticable, inadvisable, or impossible,” find a country whose government is willing to accept them.

Realmuto said the Trump administration is skipping straight to that last resort. As a result, she said, several people who were deported to a third country have been sent by officials there back to the country they originally fled.

Among them is Rabbiatu Kuyateh, a 58-year-old woman who fled Sierra Leone’s civil war 30 years ago and settled in Maryland until ICE agents detained her this summer during her annual check-in.

NBC News reported that because a judge had banned ICE from sending her back to Sierra Leone, where she had been tortured, the agency deported her to Ghana. But Ghanaian officials forcibly put her on a bus to Sierra Leone.

In fiscal year 2024, 2,506 people were granted withholding of removal or protection under the anti-torture convention, according to the Congressional Research Service.

Realmuto said that, like Kuyateh, tens of thousands of immigrants have been granted those types of relief over the course of several decades. Such people could now be at risk of being detained again while the government works to remove them to another country, she said.

The case of F.B., a 27-year-old Colombian woman who entered the U.S. at the San Ysidro port of entry in 2024, further illustrates the government’s approach toward the anti-torture convention. F.B. asked to be identified by her initials out of fear of retaliation by the U.S. government.

In February, F.B. won protection under the anti-torture convention. But instead of releasing her, Homeland Security said it was attempting to remove her to Honduras, Guatemala or Brazil.

In September, lawyers for F.B. filed a petition in federal court for her release.

“It’s kind of hard to argue somebody’s removal is imminent when they’ve been detained for eight months,” said her attorney, Kristen Coffey.

Court records show the judge initially denied the petition after ICE officials claimed they had booked a flight for her to Bolivia that would leave three days later.

But a month after that, she was still in U.S. custody.

In an order granting F.B.’s release last month, U.S. district court judge Tanya Walton Pratt in Indiana said the government’s claim that F.B. would be imminently deported had “proven false,” and that keeping her detained was “contrary to the Constitution and laws of the United States.”

She was released the same day.