Ngoc Phan was preparing for her husband to be deported to Vietnam.
Phan, 40, this spring had gathered luggage with clothes and a cell phone at her home just south of Seattle. Her husband was filling out paperwork and travel documents, she said. Family abroad was preparing to greet him at the airport. And in a few years, she would join him to start a brand new life together.
"Everything that was done up to this point, my communication with his [Immigration and Customs Enforcement] officer, him filling this declaration form, providing names of people to pick him up at the airport — there was no indication that he was going to be sent anywhere else except Vietnam," Phan told NPR.
The deportation itself did not come as a surprise. Her husband, Tuan Thanh Phan, had been serving about a 25-year prison sentence for first degree murder and second degree assault in 2000 after firing a gun that struck a bystander during what was labeled a gang-related dispute. He was a green card holder, whose lawful permanent residency was revoked during his sentence, in 2009, his wife said.
He never walked free. ICE officers picked up from the Coyote Ridge Corrections Center in Connell, Wash., on March 3, his release date, and immediately put him into deportation proceedings.
"We've accepted it. We planned for it, and we were looking forward to it," Ngoc Phan said. "And then in the middle of the night, they picked him up and sent him to South Sudan."
Phan's husband was one of several men who were first told that they would be sent to South Africa instead of their home countries — which also included Mexico, Burma, Cuba and Laos. Then they were told instead their destination would be South Sudan, a politically unstable country in Africa and one of the poorest in the world.
The administration argues that the men's home countries won't take them — and people with criminal records shouldn't be allowed to stay in the U.S.
"As a career ICE officer, I've been dealing with these recalcitrant countries for years, having to see repeated murderers, sex offenders, violent criminals re-released back into the United States because their home countries would not take them back," ICE Acting Director Todd Lyons said during a press conference.
"We are now able to remove these public safety threats so they won't prey on the community anymore and they won't have any more victims in the United States."
But immigration lawyers sued over the flight to South Sudan, arguing their clients weren't given enough time to contest their deportations there. The same lawyers had sued earlier to stop a deportation flight headed to Libya, another unstable country with a notorious history of poor treatment towards migrants.
Brian Murphy, a federal judge in Massachusetts appointed to the bench by President Joe Biden, ruled in their favor, arguing migrants set to deported to anywhere that's not their country of origin need more time to contest their removal there.
Specifically, migrants should get an interview, known as a credible fear interview, where they have a chance to say they may face violence or persecution if sent to a specific country.
"Is it okay for the government then to turn around and destroy their lives and the lives of their families, just because those individuals at one time committed a crime for which they've already been convicted, they've already served their sentence?" said Matt Adams, the legal director at the Northwest Immigrant Rights Project, one of the groups suing the administration over the flight to South Sudan and deportations to other so-called third countries.
"It's just a complete renunciation of our justice system," he said.
Expanding use of third-country deportations
The strategy to rely on other countries to take in U.S. deportees is not new.
Mexico, for example, has been a past destination to remove those who cannot be returned back to their home countries. That's because countries like Cuba and Venezuela, for example, for many years didn't accept deportees from the U.S. Other countries placed limits on the frequency of flights.
Vietnam, Tuan Thanh Phan's home, has also been on the list of countries with limits on accepting deportees. The country did sign an agreement with the U.S. in 2020 that made it easier to accept those who arrived in the U.S. before 1995; Phan arrived in 1991, said his lawyer Adams, from the Northwest Immigrant Rights Project.
The Trump administration has prioritized getting more countries to repatriate their citizens, including from China, Venezuela and Cuba.
Still, there can be barriers to send people to their countries of origin.
Homeland Security Department officials justified the flight to South Sudan by arguing the home countries of the men would not accept them because of the crimes they had committed in the U.S., which included murder and sexual assault.
"These are the ones that you don't want in your community. These are the ones that we prioritize every day," Lyons, from ICE, said. He noted the State Department has been key to brokering international deals with countries to play this role.
"And the further away the better, so they can't come back across the border," Secretary of State Marco Rubio said during an April cabinet meeting.
It's unclear whether the administration first tried to deport some of the men now in Djibouti to their home countries.
ICE did not respond to questions about whether Mexico and Vietnam, the home countries of two of the men, were placing limits on deportations, whether this specific flight only included people who had entered without legal status, or how many individuals have been sent by DHS to third countries since the start of the administration.
"We do not comment on private diplomatic discussions surrounding the removal of any specific individual or final destination," a State Department spokesperson said.
The Vietnamese Embassy did not respond to a request for comment.
'Credible fear' claims
Greg Chen, senior director of government relations for the American immigration Lawyers Association, said the difference from prior administrations includes the kinds of countries this White House is negotiating with.
"The principle in law is that it needs to be a safe country for that person to be removed there," said Chen, whose nonpartisan organization represents immigration attorneys and law students.
The Department of Homeland Security hasn't commented about conditions in South Sudan. But the State Department's travel advisory for it warns U.S. citizens not to travel there due to "crime, kidnapping, and armed conflict."
DHS policy requires any deportee to get notice of what country they're being sent to, "and an opportunity for a prompt screening of any asserted fear of being tortured there."
The arguments in court have centered on how long migrants should have to contest their removal to a country. DHS says this process takes "minutes," not weeks.
In the case of the flight to South Sudan, the men got less than 24 hours' notice.
Immigration lawyers say such little time means deportees' have little hope of arguing against a removal, especially if they don't speak English.
And ultimately, immigration attorneys say, the government makes mistakes.
"That these deportations are happening in a rushed fashion, it means that the administration is dangerously close to violating due process in these cases," Chen said.
Fight continues in the courts
Judge Murphy of Massachusetts did not prohibit the use of third country removals. But he said the government needs to provide notice in the deportee's language and 15 days to contest their removal to a particular country — something that didn't happen in the case of the flight to South Sudan, Murphy said.
After the flight left, Murphy ordered the men stay in DHS custody while the department conducts a credible fear assessment.
The flight ended up landing at a military base in Djibouti where, since around May 22, the men and federal agents remain while the administration fights the orders in court.
The Trump administration appealed Murphy's order to the Supreme Court, arguing that the judge was interfering with the executive branch's role to carry out immigration policy and conduct international deals.
"Having slammed on the brakes while these aliens were literally mid-flight — thus forcing the government to detain them at a military base in Djibouti not designed or equipped to hold such criminals — the court then retroactively 'clarified' its injunction to impose an additional set of intrusive and onerous procedures on DHS," John Sauer, the U.S. Solicitor General, said in the appeal.
"While certain aliens may benefit from stalling their removal, the Nation does not. Worse, the injunction has harmed—and will harm — American foreign policy and national security," Sauer added.
The Supreme Court gave the lawyers representing the men until June 4 to respond to the appeal. The government will then get another chance to reply before the Supreme Court weighs in.
Until then, the men and the immigration officials are left in Djibouti.
Phan says her husband used to call her from the detention center every morning. Now she has not heard from him since he was put on the plane.
She is frustrated the administration is lumping him in with others who perhaps entered the country without legal status and committed multiple crimes.
"I'm angry about it," Phan said. "They want to call him a barbaric monster without really understanding the details of his case … He [already] did 25 years."
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