Procedural snapshot: As of October 10, 2026, the U.S. Supreme Court had stayed the lower-court order governing notification and meaningful opportunities to challenge third-country removals; argument in D.V.D. v. DHS was scheduled for December 9, 2026. A stay is not a judgment on the merits.

Abstract

Drawing on international human rights law, refugee law, comparative case law and reports published on October 8, 2026 by Human Rights Watch and the Associated Press, this article asks when removal to a country other than one’s own violates non-refoulement. It differentiates the lawfulness of a third-country destination in principle from the failure to examine individual risks in that destination, including onward deportation. It argues for a transgender-specific assessment of documents, detention, health, gender expression and effective access to asylum, and considers Ecuador’s duties as a country of origin, consular actor and potential receiving state.

Keywords: non-refoulement; third-country removals; transgender people; international protection; diplomatic assurances; Ecuador.

1. Introduction and research questions

Third-country removal is not a new legal concept. What matters is the growing scale, opacity and deterrent effect of transfers to states with which deportees may have no previous connection. HRW cites nearly 28,000 people transferred to more than 50 countries under its broader count, while Third Country Deportation Watch estimates approximately 25,000 to over two dozen countries, largely Mexico. These figures involve different methods and cannot be treated as directly interchangeable.

The questions are straightforward but difficult: what happens if someone cannot safely return home and cannot secure meaningful protection in the receiving country? What procedural guarantees bind the removing state? What must the receiving state do? How are risks tied to sexual orientation and gender identity assessed? What are Ecuador’s particular responsibilities?

Method and limits: This is doctrinal, comparative and case-based analysis. HRW interviewed 24 people in six countries; those interviews are not a representative sample. The separate AP account of Daniela Fuentes is not proof that she held a judicial protection order. Some destinations are withheld by HRW for safety. The U.S. litigation remains pending. This text is not individualized legal advice.

2. The facts: removals to Africa, LGBT people and Daniela Fuentes

In its October 8, 2026 report, “To Scare People”: US Expulsions of Third-Country Nationals to Countries in Africa, HRW describes deportees transported in shackles, at times without meaningful prior disclosure of destinations, detained in receiving states and sometimes sent on to countries they feared. The research covered Cameroon, the Central African Republic, the Democratic Republic of the Congo, Equatorial Guinea, Eswatini and South Sudan. Cases involving Ghana were also documented.

HRW interviewed four LGBT people and collected credible case information about others. It concluded that at least twelve LGBT people had been sent to states criminalizing same-sex relations or public displays of same-sex affection. Some had obtained withholding of removal against deportation to their homelands, but faced no equivalent inquiry into protection at their new destination.

The reported case of Daniela Fuentes

Mark Banchereau of the Associated Press reported on a 32-year-old Cuban transgender woman deported to Bangui, Central African Republic, on August 29, 2026. She described having fled mistreatment in Cuba, arrived in the United States through the CBP One process, worked in Miami, and experienced detention among men before her unexpected removal. AP reported that she lacked normal documentation and work authorization in Bangui and concealed her identity for safety. A local official disputed the portrayal of living conditions. ICE did not answer AP’s questions. Crucially, AP did not establish that Fuentes held CAT or withholding protection; her case and the group of protected individuals described by HRW must not be conflated.

The U.S. government’s position

U.S. authorities argue that removal to alternative destinations is authorized for people under final removal orders, including some whose home country will not accept them, and that receiving governments offer assurances against persecution or torture. They also argue that judicial requirements to notify and allow objections impede removals and diplomatic arrangements. Those positions deserve consideration even though a statutory power is distinct from the lawfulness of its exercise in individual cases.

3. U.S. law and pending litigation

Under Immigration and Nationality Act § 241(b), 8 U.S.C. § 1231(b)(2), the choice of removal destination follows statutory steps, ultimately allowing another country that agrees to receive the person. Jama v. ICE, 543 U.S. 335 (2005), distinguishes clauses requiring advance acceptance from others that do not. But permission to designate another country does not dissolve prohibitions against persecution or torture.

Withholding under INA § 241(b)(3) and protection under the Convention against Torture (CAT) are country-specific. An order prohibiting return to Cuba, for example, is not a finding that the Central African Republic is safe. Withholding carries defined statutory exceptions; protection against return to torture cannot be defeated merely by criminal history. In Avendano-Hernandez v. Lynch, 800 F.3d 1072 (9th Cir. 2015), the court recognized distinctive risks affecting a transgender woman and ordered CAT deferral despite a conviction barring withholding.

HRW describes DHS guidance from March and July 2025 concerning diplomatic assurances, abbreviated notice and interviews dependent on a deportee articulating fear. Litigation in D.V.D. v. DHS contested these procedures. After the lower court required meaningful notice and an opportunity to challenge third-country removal, the Supreme Court granted interim stays, including on September 29, 2026, and set oral argument for December 9. The dispute concerns procedure, judicial authority and safeguards, not a general ban on all third-country removals.

4. International law: non-refoulement and chain return

Article 33 of the 1951 Refugee Convention, applicable through the 1967 Protocol, bars return to threats to life or freedom on enumerated grounds, subject to its narrow Article 33(2) exception. CAT Article 3 prohibits sending any person to a place where substantial grounds establish danger of torture. ICCPR Articles 6 and 7 and Human Rights Committee General Comment 31 address foreseeable irreparable harm, including through subsequent transfer. Article 22(8) of the American Convention explicitly covers a receiving country whether or not it is the person’s country of origin. The United States is not a party to that Convention, although its other treaty obligations and the Inter-American human rights system remain relevant.

Chain refoulement occurs when the first receiving country sends someone to another place of foreseeable danger. The European Court of Human Rights has considered such duties in T.I. v. United Kingdom, M.S.S. v. Belgium and Greece, Hirsi Jamaa v. Italy, and Ilias and Ahmed v. Hungary. The UK Supreme Court in R (AAA) v. Secretary of State [2023] UKSC 42 found the Rwanda scheme unlawful given a real risk of onward refoulement. These are comparative authorities, not decisions directly binding U.S. courts.

Due process and diplomatic assurances

Effective protection requires a procedure capable of identifying risk in time. The Inter-American Court’s Pacheco Tineo Family v. Bolivia case emphasizes individualized protections for people subject to expulsion. Diplomatic assurances are relevant evidence but no substitute for inquiry: Agiza v. Sweden and Othman (Abu Qatada) v. United Kingdom illustrate the importance of specificity, enforceability, monitoring and the receiving state’s actual record. HRW’s reports of onward repatriation despite stated assurances raise profound questions about reliability.

5. Why transgender-specific risk assessment matters

UNHCR’s Guidelines on International Protection No. 9 recognize persecution linked to sexual orientation and gender identity as relevant to refugee status. Decision makers must not assume that a person can escape harm by concealing their sexual orientation or gender identity. HJ (Iran) [2010] UKSC 31 rejects compelled concealment of sexual orientation. A transgender person hiding gender expression in order to remain safe is not evidence that a destination is safe.

Avendano-Hernandez cautions against treating sexual orientation and gender identity as identical legal experiences. The Inter-American Court’s OC-24/17 and Vicky Hernández v. Honduras also illustrate the importance of gender identity, documents and violence prevention.

6. Ecuador: origin, consular duties and reception

Ecuador is implicated in three separate ways. As a country of origin it receives removed Ecuadorians; as a state exercising consular protection it assists Ecuadorian nationals held abroad; and under the November 2025 U.S.–Ecuador arrangement it may receive some third-country nationals. These roles cannot be collapsed into a single migration policy.

Based on figures reported by Ecuadorian outlets citing the Foreign Ministry, 57,406 Ecuadorians were deported from the United States between 2019 and January 26, 2026, including 9,351 in 2025 and 742 between January 1–26, 2026. These figures were not broken down by sexual orientation or gender identity. In April 2026, three Ecuadorians were identified among people sent to the DRC; the Ecuadorian Foreign Ministry and deportees offered different characterizations of their conditions and willingness to return. HRW additionally mentioned an Ecuadorian nationality on a July 31 transfer to the Central African Republic without a count.

Ecuador’s domestic protections

Article 11(2) of Ecuador’s Constitution prohibits discrimination, including on gender identity, sexual orientation and migration status; Articles 41 and 66(14) recognize asylum, non-refoulement and individualized immigration protections. Article 2 of the Organic Law on Human Mobility expressly addresses removal to another country whether or not it is the country of origin. Articles 90 and 91 reinforce international protection, while Article 36 of the Vienna Convention on Consular Relations is relevant to consular communication.

Gender recognition is material to safety. In Judgment 66-18-IS/24, Ecuador’s Constitutional Court addressed delayed legislative compliance on changing the sex or gender field in identification documents and the amendment of Article 94 of the Organic Law on Identity Management and Civil Data. This can matter enormously for the dignity and reintegration of returning transgender Ecuadorians. The judgment’s procedural context is also personally relevant to the author, whose enforcement action with Asociación Silueta X was joined to the case.

The November 2025 arrangement with the United States

Public reporting described an arrangement under which the United States may propose transfers and Ecuador may choose whether to accept them, with stated obligations related to asylum and withholding onward return while claims are resolved. Important public-interest questions remain: what individual screening takes place before transfer; how can an LGBT person access counsel, documentation and healthcare; which operational procedures exist; what constitutional review occurred; and what aggregate transfer data will be published? Legal protections must be measured by implementation, not promises alone.

7. Recommendations and conclusions

1. For U.S. authorities: ensure individualized advance notice, an effective chance to contest destination-specific and chain-refoulement risks, and scrutiny of diplomatic assurances.
2. For Ecuador’s Foreign Ministry: publish privacy-protecting, voluntarily collected disaggregated data and establish responsive consular safeguards for LGBT and transgender nationals.
3. For Ecuador’s receiving institutions: disclose operational criteria for transfers, guarantee access to asylum and independent review, and provide safe documentation and gender-responsive healthcare pathways.
4. For receiving African governments: prevent arbitrary detention and onward return to harm, and allow independent monitoring.
5. For civil society and academia: document cases through informed consent, support legal representation and investigate implementation of safeguards.

The central distinction is between the legal possibility of removal to a third country and a removal executed without the protections required by the circumstances of the person concerned. Nationality, criminal history and diplomatic negotiation cannot replace an assessment of torture, persecution and onward-return risks. Transgender refugees require protection that sees their real lives—not merely a destination on paper.

Frequently asked questions

Selected legal and reporting references

Human Rights Watch (October 8, 2026), “To Scare People”: US Expulsions of Third-Country Nationals to Countries in Africa; Associated Press, Mark Banchereau (October 8, 2026), reporting on Daniela Fuentes; U.S. Supreme Court, Department of Homeland Security v. D.V.D., 24A1153, 26A406 and 26-426; Immigration and Nationality Act, 8 U.S.C. §§ 1158 and 1231; Jama v. ICE, 543 U.S. 335 (2005), Cornell LII; Avendano-Hernandez v. Lynch, 800 F.3d 1072 (9th Cir. 2015); CAT Article 3 and General Comment 4 (2017); ICCPR Articles 6 and 7, General Comment 31 (2004); Refugee Convention Article 33; UNHCR (2012), Guidelines on International Protection No. 9; R (AAA) v. Secretary of State [2023] UKSC 42; Agiza v. Sweden (CAT 2005); Othman v. United Kingdom (ECtHR 2012); Inter-American Court of Human Rights, OC-24/17 and OC-25/18, Pacheco Tineo (2013) and Vicky Hernández (2021); Ecuador Constitution (2008), Arts. 11, 41, 66, 392, 419 and 438; Ecuador Organic Law on Human Mobility, Arts. 2, 90 and 91; Ecuador Constitutional Court, Judgment 66-18-IS/24 (2024). Source claims are attributed and differences between reported totals are not resolved without common methodology.

Research and legal developments considered through October 10, 2026. For live proceedings, consult the court docket and updated official sources.