Since March, the Trump administration has been rounding up and forcibly transferring people to foreign countries of which they are not nationals. In many of these cases, including the March transfer of over 200 Venezuelans to a notorious megaprison in El Salvador, the third-party countries are known perpetrators of significant human rights abuses, according to the U.S. government’s own State Department. As we wrote in March, the removal of individuals in such circumstances – whether to a person’s country of nationality or not – violates the prohibition on transferring individuals to torture, which is enshrined in both treaty and U.S. statute. U.S. immigration statutes more broadly prohibit most removals to countries where an individual’s “life or freedom would be threatened [because of their] race, religion, nationality, membership in a particular social group, or political opinion.”
The administration’s transfers of people to abusive and otherwise dangerous conditions in foreign countries has raised significant alarm, including within Congress. In May, we wrote about a legislative effort spearheaded by Senator Time Kaine (D-VA) intended to force the Trump administration to provide Congress with certain information related to its transfers to torture in El Salvador. We described the bill, sometimes referred to as a “502B” resolution, as a welcome effort but containing significant flaws. In our view, it fell short in two respects: First, due to some key omissions and the narrow scope of individuals covered – “U.S. citizens or residents,” a specious concept and one that risked undermining the treaty and statutory protections for all individuals – it would not have elicited the information the senators were demanding regarding the immediate crisis that compelled it. Second, that narrow language risked reinforcing a dangerous false dichotomy the Trump administration is advancing to justify its broader immigration agenda: that only some people are deserving of humane treatment.
On August 1, Sen. Kaine introduced six new 502b resolutions, one for each of the additional countries to which the Trump administration has reportedly transferred people: Costa Rica, Mexico, Panama, Rwanda, South Sudan, and Eswatini. As we explain below, these new resolutions resolve the concerns we originally raised. We welcome these changes and applaud this effort.
The original El Salvador resolution failed on a party-line vote. But demanding that the executive branch provide the most basic of information about the conditions to which it is consigning human beings transferred from U.S. shores should not be a partisan issue. And if senators are serious about guarding Congress’ constitutional prerogatives, then basic oversight like this – on an issue so consequential – is a must. These six new bills should pass unanimously.
A Quick Refresher on 502b Resolutions
Section 502B of the Foreign Assistance Act of 1961 (codified at 22 U.S.C. 2304) requires that U.S. foreign policy seek “to promote the increased observance of internationally recognized human rights by all countries,” and so prohibits the United States from providing security assistance to “any country the government of which engages in a consistent pattern of gross violations of internationally recognized human rights.” It includes two enforcement mechanisms, one of which empowers Congress, through a simple resolution, to require the State Department to produce a report on a country’s human rights record – including any related information Congress specifies – within 30 days. Failure to provide the report, entirely or in reasonable fashion, would end (at least temporarily), or potentially restrict, U.S. security assistance to that country.
Developments Since the El Salvador Resolution
As noted above, the six new 502b resolutions were prompted by reports that, in addition to the El Salvador transfers, the Trump administration has now sent people to Costa Rica, Mexico, Panama, Rwanda, South Sudan, and Eswatini. The new resolutions are also critical for several related reasons. In June, the Supreme Court issued a decision permitting, at least for the time being, the Trump administration to continue its version of “third-country removals,” which involve sending immigrants with final removal orders to countries other than the ones designated in their removal proceedings. But the administration has been doing so without first providing these people with an opportunity to litigate whether they face torture or other forms of cruel, inhuman, or degrading treatment in that country. (The plaintiffs in the case, D.V.D. v DHS – whose transfer to South Sudan had been halted mid-flight by a district court order, stranding them in a converted shipping container in Djibouti – have since been sent to South Sudan.)
As part of the litigation, the Department of Homeland Security (DHS) filed a memorandum purporting to “clarify” its policy regarding third-country removals, but, in fact, asserting radical claims to retain total discretion over assessments of whether individuals could be safely removed to particular countries. The memorandum – titled Guidance for Third Country Removals – is notable for several reasons, including the weight DHS affords diplomatic assurances from removal countries:
Prior to the alien’s removal to a country that had not previously been designated as the country of removal, DHS must determine whether that country has provided diplomatic assurances that aliens removed from the United States will not be persecuted or tortured. If the United States has received such assurances, and if the Department of State believes those assurances to be credible, the alien may be removed without the need for further procedures.
As we said in March, while diplomatic assurances would be part of the picture regarding whether the Trump administration is taking any steps to address known concerns with conditions in a transfer country, such assurances do not suffice to remediate a transfer to abuse. There are myriad significant problems with the policy, including that it seeks to withdraw judicial oversight of DHS assessments of an individual’s eligibility for protections from removal. But even the government’s own guidance recognizes that it must ensure that any assurances it receives from a third-party country are credible. This is true whether the transfer follows a removal proceeding, or is pursuant to the Alien Enemies Act, or otherwise. It is true regardless of the individual’s immigration status or country of nationality.
Indeed, the U.N. Special Rapporteur on Torture has made clear that diplomatic assurances are not sufficient to satisfy a country’s nonrefoulment obligations (the requirement that no one is returned to a country where they would face torture), and has called on governments “to refrain from seeking diplomatic assurances and the conclusion of memoranda of understanding in order to circumvent their international obligation not to deport anybody if there is a serious risk of torture or ill treatment.” The diplomatic assurances that we now know the administration sought and received from El Salvador prior to renditions to the country’s CECOT prison are a perfect example of why.
In diplomatic notes exchanged between the United States and El Salvador over the two days prior to the first transfers, El Salvador “assure[d] that … the reception of these individuals will be conducted in accordance with Salvadoran law and international obligations, including adherence to the Convention against Torture.” But as we’ve explained previously, a mountain of evidence demonstrated that senior Trump administration officials were “not merely aware of the array of gross human rights violations and related abuses these men [would] face in El Salvador; they welcome[d] it.” Having watched those violations begin immediately – in fact the White House posted a video of Salvadoran security forces dragging the shackled men off the plane and forcibly shaving them, alongside a message from Trump calling the men “monsters” – the administration then sent another 16 men to El Salvador on March 30. DHS Secretary Kristi Noem said, “they should stay there for the rest of their lives.”
Exacerbating both of these developments – the Supreme Court’s decision in D.V.D., and the administration’s heavy reliance on diplomatic assurances that it has no intention of ensuring are credible – on August 6, the Washington Post reported that several leaked chapters of the State Department’s annual Country Reports on Human Rights Practices suggest the Trump administration intends to whitewash certain human rights abuses in those countries. The El Salvador chapter in particular reportedly includes the risible sentence: There were “no credible reports of significant human rights abuses” in 2024. All of this makes it even more important that Congress has full visibility into the administration’s processes, analyses, and decisions related to third-country transfers. Kaine’s new 502b resolutions would afford Congress just that.
How the Six New Resolutions Get It Right
The resolutions Kaine introduced request information critical to the government and the public’s ability to analyze these transfers and the conditions of confinement. Each of the resolutions requests the same information regarding each country’s human rights record overall, and actions the U.S. government has taken to advance human rights and disassociate U.S. security assistance from any violations in those countries. We had identified two problems with the original El Salvador resolution: first, an information gap between what we understood to be the purpose of the resolutions and the actual requests; second, language that could have been perceived to suggest that certain fundamental human rights apply only to those with substantial ties to the United States. Read in the context out of which they arise, the six new resolutions resolve both.
The new resolutions request all of the information we believed was missing from the El Salvador resolution:
- Steps the administration is taking to facilitate release or return of the people wrongfully deported to the country;
- Any agreements between the United States and the country related to the transfers;
- Any analysis the State Department conducted regarding the conditions they would face, including conditions of confinement;
- Any diplomatic assurances the United States sought, and/or received, that the men would not be subjected to torture or ill treatment there;
- Any conclusions it reached, including whether there were substantial grounds for believing that the men transferred would be in danger of being subjected to torture. (The six new resolutions do not specify this as such, but it would clearly be required pursuant to section (b)(3)).
Moreover, the new resolutions smartly request additional key information, including:
- Information designed to address the possibility of chain deportation or indirect refoulement, specifically: whether the United States assessed the prospect of the transfer country subsequently sending that person to their country of origin or last residence, and if so, whether the country to which the United States sent them would first provide them with meaningful opportunity to show that they may be persecuted, tortured, or otherwise harmed if sent to yet another country;
- Information ensuring that the transfer country would provide legal immigration status and humane treatment to those sent there, should they wish to remain in that country; and
- A summary of all meetings in 2025 between Government of Mexico officials and Washington-based officials of the United States Government.
Importantly, the information requested by these resolutions on the countries’ human rights records – and on related assessments and analysis regarding risks of human rights violations in these cases specifically – are not limited to a narrow subset of individuals transferred from the United States. They request information on the human rights records in the countries of transfer generally, and “including people who are not citizens of [transfer country X] but have been removed to [transfer country X] by the United States Government.”
As we discussed in our two prior posts, U.S. law places legal restrictions on removal from the United States to abusive conditions abroad regardless of the citizenship or legal status of the individual, and so this formulation could have been broadened to include all transfers from the United States. (If DHS extends to home-country removals its recent guidance on third-party removals, which seeks to rely heavily on diplomatic assurances and retain total discretion over protection eligibility, then this will become more critical.) Given the administration’s recent practice of sending immigrants to third-party countries with which they may have no ties whatsoever, the resolutions’ focus on these third-country transfers – using language that is inclusionary, not exclusionary – should be understood in that context. Certainly, nothing in the resolutions should be read to suggest that distinction based on nationality or immigration status in the applicability of fundamental human rights or the relevant statutory prohibitions on refoulement.
Also, and for good measure, where the resolutions request information regarding actions the United States is taking to protect people prior to any transfer, they apply to people “within United States’ jurisdiction or effective control,” and so include people held at Guantanamo.
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In his press release upon introduction of the bills, Kaine said:
If President Trump is going to send immigrants to random countries they are not from—without congressional consent—we have a right to understand the situation on the ground in the places they are being expelled to using American taxpayer dollars.
And in fact, as recently as August 2, DHS spokesperson Tricia McLaughlin left no doubt that the administration will continue to do so, saying: “If you come to our country illegally and break our laws, you could end up in CECOT, Alligator Alcatraz, Guantanamo Bay, or South Sudan or another third country.” In Kaine’s words, with these bills he is: “forcing debates and up to six votes in the Senate to give each of my colleagues the opportunity to affirm [Congress’s right to know] and reclaim our power as a co-equal branch of government as outlined in the Constitution.” Every senator should seize that opportunity
