(DENVER, COLORADO, USA) — A Board of Immigration Appeals precedent has become the legal hinge for the federal government’s renewed push to remove some noncitizens to “third countries” while their protection claims remain pending, a shift now surfacing in fast-moving dockets including the Denver Immigration Court.
At the center is Matter of A-S-M-, 28 I&N Dec. 282 (BIA 2021), which recognized that DHS may, in certain post-order settings, pursue removal to a country other than the person’s country of nationality and that protection screening can attach to the country of proposed removal, not just the home country.
While the decision arose in a narrow procedural posture, its practical impact is broader: it supplies DHS and immigration courts a framework to treat third-country removal as a live issue even when an asylum seeker’s core fear claim focuses on the home country.
What that means on the ground is straightforward and high-stakes. If DHS indicates it is considering a third country under INA § 241(b)(2) (the removal-country statute), immigration judges and counsel may be forced to litigate safety, notice, and timing questions on an accelerated track—sometimes alongside, or even ahead of, the merits of an asylum case under INA § 208.
Overview: Denver Immigration Court and the third-country removal policy
“Third-country removal” generally means removal to a country that is not the person’s country of citizenship. It can also mean removal to a country the person did not recently transit.
That distinguishes it from the more familiar pattern of removal to the home country, or return to a last transit country under specific programs.
Why is the Denver Immigration Court featuring prominently in reporting on this expanded approach? Operationally, immigration court proceedings intersect with DHS/ICE custody decisions and removal planning. When a person is detained, ICE may be arranging travel documents and flights while the court calendar moves on a separate track.
That mismatch in timelines can turn a removal-routing decision into an emergency litigation problem.
Agency roles
- DHS/ICE: arrests, detention, custody classification, removal logistics, and choosing a proposed country of removal under INA § 241(b)(2).
- EOIR (Immigration Court and BIA): removal proceedings, bond hearings where available, and adjudication of “defensive” asylum and related protections.
- USCIS: “affirmative” asylum filings and interviews, plus related work authorization processing.
This is not just about one lawsuit. It is an administrative posture that can affect case flow across many courts and many nationalities.
Official statements and policy milestones (dates and quotes)
Several government actions and public messages set the current operational tone.
- After Supreme Court-related litigation activity, DHS messaging on June 23, 2025 emphasized removal authority and speed, including the line: “Fire up the deportation planes,” attributed to DHS Assistant Secretary Tricia McLaughlin on dhs.gov.
- DHS later framed its enforcement posture with large removal figures in an October 27, 2025 press release, stating over 2 million removals in 2025, including 527,000 deportations and 1.6 million “voluntarily self-deport[ing]” under administrative pressure.
- USCIS then announced a major adjudication change through Policy Memorandum PM-602-0192, dated December 2, 2025, placing an indefinite hold on pending asylum applications, citing “vulnerabilities” and a “comprehensive review” on uscis.gov.
Those milestones matter because public statements often translate into operational priorities. They also affect what asylum seekers experience day-to-day.
An “adjudicative hold” can freeze case outcomes, while removal planning accelerates elsewhere in the system.
“Removed” can be used as an umbrella term in public messaging. It may include formal removals, expedited removals, returns, and departures under pressure. Definitions can matter in individual cases.
Key policy details and legal mechanisms
The BIA precedent’s practical effect
Matter of A-S-M- did not create third-country removal power from scratch. That authority is rooted in INA § 241(b)(2). But the decision is frequently read for a practical proposition: if DHS identifies a different removal country, the protection inquiry may shift to whether the person fears persecution or torture in that proposed country.
In practice, that can change sequencing. Litigation that would normally focus on the home-country asylum narrative may get interrupted by urgent questions such as:
- What country is DHS proposing right now?
- Has DHS given meaningful notice of that country?
- What process is available to raise fear of that country?
Agreements with destination countries
Third-country routing is easier when the United States has arrangements with destination governments. Public reporting has described revived or new agreements, including “safe third country” concepts and “asylum cooperative” style agreements.
At a high level, such agreements can affect DHS routing decisions. They do not automatically resolve an individual’s fear claim. A country’s willingness to accept a transfer is not the same thing as a finding that the person will be safe there.
Due process tension
The core tension is evidentiary. An asylum seeker may be asked to address safety in multiple potential third countries, sometimes without clear advance notice.
That can resemble a “prove-a-negative” exercise when the proposed destination shifts.
Adjudicative hold and asylum process status
USCIS’s affirmative asylum system and EOIR’s defensive asylum system are related but distinct.
- Affirmative asylum (USCIS): typically filed by people not in removal proceedings at the time of filing. The case is decided by USCIS unless it is referred to EOIR.
- Defensive asylum (EOIR): requested in removal proceedings as a defense to removal.
An affirmative asylum hold means pending cases are not moving to grant or deny. People can remain in limbo. Some may still end up in immigration court for separate reasons, including arrest or issuance of a charging document by DHS.
Work authorization can become a pressure point. Even if adjudication is paused, employment authorization documents may expire. Renewal timing, eligibility category, and processing delays can create gaps.
The source content notes work permits issued before December 4, 2025 remain valid for their original duration, but that does not eliminate renewal risk.
Deadline Watch: If your EAD will expire soon, talk to counsel early about renewal options and timing. Processing times can outlast validity periods.
Denver courtroom case specifics (Feb 1, 2026)
Courtroom reporting from Feb. 1, 2026 in Immigration Judge Brea Burgie’s Denver courtroom illustrates how third-country removal can surface mid-proceeding.
The snapshot described a woman and her 6-year-old son in a pending asylum trial posture when DHS raised third-country removal. That posture matters: an asylum trial is typically set after months of scheduling and evidence preparation, while removal logistics can move quickly once ICE has a destination and travel pathway.
The episode also tested the practical reach of the D.V.D. v. DHS nationwide injunction as described in the reporting: the government must provide written notice and an opportunity to claim fear of the third country before removal.
“Judicial resistance,” where it appears, may take measured forms. Judges may press for clarity on notice, record development, and counsel’s opportunity to respond. Judges may also scrutinize custody-related procedures when removal planning appears to outrun court process.
Timing is often the case’s most unforgiving variable. Detention transfers and flight scheduling may move faster than court continuances or briefing schedules.
Impact on individuals and lived experiences
Third-country removal is not experienced as an abstract jurisdictional concept. It is experienced as detention, transport, uncertainty, and fear.
Reporting has described transfers involving destinations such as South Sudan, Eswatini, and El Salvador, including detention contexts like CECOT. These examples illustrate the range of outcomes that may follow a third-country transfer, depending on the receiving country’s detention practices and onward-movement decisions.
Advocates also warn about “chain refoulement,” meaning a person is sent to a third country and then ends up returned—mistakenly or intentionally—to the danger they fled. That risk is difficult to litigate in real time if the destination is not disclosed early and clearly.
The procedural burden can compound. A person may be asked to present evidence about safety conditions across multiple potential destinations. That can be particularly hard for detained families with limited access to documents, language support, and country-conditions materials.
Family separation and psychological distress are recurring themes in third-country removal reporting. Uncertainty about where one will be taken—sometimes until the last moment—can make it harder to assist counsel and to present consistent testimony.
Context: legal challenges and safeguards
As described in the source content, D.V.D. v. DHS is referenced as establishing a safeguard framework: written notice plus an opportunity to assert fear of the proposed third country before removal.
In immigration court, those safeguards often become practical litigation tools rather than abstract rights. Counsel may request continuances to gather evidence, make offers of proof, and build a record. Judges may require DHS to clarify the proposed country and the notice provided.
Colorado has also been a notable venue for detention-related litigation dynamics. The reporting referenced an October 2025 decision striking down an ICE policy that denied bond hearings to detainees. While bond rules vary by detention category and charging posture, that history may shape how aggressively local courts scrutinize custody and process issues tied to removal planning.
Importantly, none of these safeguards guarantee an outcome. They may, however, determine whether the person had a fair chance to raise fear-based protections tied to a proposed destination.
Official government sources and where to find them
Primary documents matter because policy text and implementation guidance can change quickly. Readers should rely on the issuing agency’s postings and save the version consulted.
- USCIS updates and policy materials: https://www.uscis.gov/newsroom
- DHS announcements: https://www.dhs.gov/news/press-releases
- EOIR court system context and practice materials: https://www.justice.gov/eoir
- Official regulatory and notice language: the Federal Register via law.cornell.edu or federalregister.gov (search by citation when available).
Saving PDFs or screenshots can be important if a posted memo is revised. It can also help counsel show what guidance was in effect when an action occurred.
Practical takeaways for asylum seekers and practitioners
- Ask early what country DHS is proposing. The identity of the proposed third country can control what evidence matters most.
- Treat notice as a litigated issue. If notice was late or unclear, counsel may need to make a record quickly.
- Separate the systems. A USCIS affirmative asylum hold does not necessarily pause EOIR proceedings or ICE removal planning.
- Plan for EAD timing. A paused asylum adjudication does not automatically prevent work authorization gaps.
- Get case-specific advice fast. Third-country removal disputes often move on emergency timelines in detention.
Given the speed and complexity, anyone facing third-country removal—especially detained families—should consult a qualified immigration attorney immediately. Representation can be decisive in preserving procedural rights and building a record for EOIR, the BIA, and potential federal court review.
This article provides general information about immigration law and is not legal advice. Immigration cases are highly fact-specific, and laws vary by jurisdiction. Consult a qualified immigration attorney for advice about your specific situation.
