Second-Class Asylum, Third-Country Danger

The Trump Administration has aggressively pursued a policy of deporting people who have been found to be in danger of persecution or torture in their countries of origin to third countries. It has primarily impacted people who have two types of what may be called second-class asylum, namely withholding or deferral or removal. This Article examines the structural problems posed by second-class asylum as defined in the Immigration and Nationality Act (INA). The INA’s collection of tiered protected status for people in danger in their countries of origin was always illogical, though its incoherency was more manageable before 2025, when the government began to actively pursue third-country removals.

The Article then proposes various solutions, including the creation of a new permanent protected status that would preserve the idea of tiered protection while avoiding the problems with the current system.