DEPORTATIONS RESUME: Supreme Court Lets Trump Send Migrants to Third Countries as Major Legal Showdown Looms
The U.S. Supreme Court handed the Trump administration a significant victory Tuesday, allowing the government to resume expedited deportations of migrants to countries other than their homelands while the justices prepare to decide whether the administration’s controversial “third-country” removal policy is legal.
The court’s order temporarily blocked a lower-court ruling that required the government to provide migrants with notice and a meaningful opportunity to argue that they could face torture or persecution before being deported to a country with which they may have no connection.
The justices also agreed to hear the case on its merits, with oral arguments scheduled for December. That means Tuesday’s action does not constitute a final ruling that the administration’s policy is lawful; rather, it permits the deportations to continue while the Supreme Court considers the broader constitutional and legal questions.
The court’s three liberal justices — Sonia Sotomayor, Elena Kagan and Ketanji Brown Jackson — indicated that they would have denied the administration’s request and allowed the lower-court restrictions to remain in place.
The court did not provide an explanation for its decision, as is common with emergency orders.
The case, Department of Homeland Security v. D.V.D., centers on the Trump administration’s practice of sending people with final removal orders to so-called third countries when deportation to their country of origin is unavailable or impractical.
Since the policy was expanded after President Trump returned to office, the administration has deported more than 25,000 people to 29 countries under third-country arrangements. The overwhelming majority have been sent to Mexico, but deportees have also been transferred to countries including Liberia, Guyana, South Sudan, Uganda, Equatorial Guinea and the Central African Republic.
Some of those arrangements have been negotiated privately between the United States and foreign governments, with the receiving countries providing assurances that deportees will not be tortured or persecuted.
The administration says the program is particularly important for removing individuals whose home governments refuse to accept them or when other obstacles prevent their repatriation. Officials have also argued that the policy provides a mechanism for deporting individuals with serious criminal records who might otherwise remain in the United States.
The latest Supreme Court intervention came after a three-judge panel of the Boston-based 1st U.S. Circuit Court of Appeals unanimously upheld a ruling by U.S. District Judge Brian Murphy finding that the administration’s procedures violated migrants’ due-process rights.
Murphy did not prohibit third-country deportations altogether. Instead, his ruling required the government to provide migrants with sufficient notice of where they would be sent and an opportunity to raise claims that they could face persecution or torture there.
The administration argued that those requirements would severely hinder its ability to carry out deportations and complicate negotiations with foreign governments willing to accept migrants who are not their citizens.
“The government has been able to remove thousands of aliens to third countries in recent months, and thousands more are eligible for such removal,” Solicitor General D. John Sauer wrote.
Federal attorneys told the Supreme Court that the lower-court restrictions had already forced the cancellation of a flight carrying approximately 70 deportees with criminal convictions who were scheduled to be sent to three different countries.
The administration also argued that requiring individualized proceedings before every third-country removal could leave dangerous individuals inside the United States when their native countries refuse to take them back.
“Meanwhile, the very aliens whose removal is most urgent, including those who have committed serious crimes like murder, attempted murder, rape, child rape, kidnapping, and aggravated assault, will be allowed to remain — and often will be released (given practical and legal constraints on detention), to the peril of law-abiding Americans,” the administration told the Supreme Court.
Government lawyers have further maintained that assurances obtained from receiving governments should generally be sufficient to address concerns that deportees could face torture or persecution.
“The decision that a foreign government’s categorial assurance against torture or persecution is sufficient for all aliens is itself a ‘foreign policy’ judgment the Judiciary ‘is not suited’ to question,” the administration’s Supreme Court application said.
Attorneys representing the migrants strongly dispute that position. They contend that blanket diplomatic assurances cannot replace an individual opportunity to explain why a particular person may face imprisonment, persecution, torture or other serious dangers in the proposed destination country.
“Denying a stay does not prevent third-country removals; rather, it simply requires them to do so lawfully,” the Supreme Court filing for the immigrants who challenged the policy said.
Attorneys challenging the administration have also argued that the program extends beyond violent criminals. They say some deportees have no criminal convictions and that others have already been found to face a danger of persecution or torture if returned to their own countries.
Some third-country deportees have reportedly been detained after arriving in countries with which they had no previous connection. Critics of the policy say others have been placed in situations where their only practical option is to return to the homeland from which they originally sought protection.
South Sudan has emerged as one of the most controversial destinations used by the administration. The State Department itself warns Americans against traveling there because of armed conflict, crime and kidnapping.
The legal battle previously reached the Supreme Court after Judge Murphy imposed restrictions on third-country deportations. The justices allowed the administration to proceed with removals while litigation continued, including a closely watched case involving eight men who were ultimately deported to South Sudan.
The dispute took on renewed urgency this month after the 1st Circuit upheld Murphy’s final ruling that the administration’s procedures were unlawful. The administration quickly returned to the Supreme Court, asking the justices to prevent that decision from disrupting its deportation program.
Attorney General Todd Blanche described the administration’s approach as “an entirely lawful and critical tool for immigration enforcement.”
The Supreme Court has now agreed to address not only whether the third-country policy itself is lawful, but also whether the migrants were entitled to bring their challenge and whether the lower federal courts possessed the authority to impose broad restrictions on the administration’s program.
Those questions could produce a ruling with implications extending beyond third-country deportations, particularly as the Trump administration continues its broader effort to sharply increase removals of people living illegally in the United States.
