Supreme Court for now allows Trump to deport migrants to ‘third countries’

The Supreme Court allowed the Trump administration to deport immigrants to third countries, blocking a lower court's decision. Photo / Getty Images

The Supreme Court on Monday cleared the way for the Trump administration to deport immigrants to countries where they are not citizens, temporarily blocking a decision by a lower court judge who said migrants must have a “meaningful opportunity” to contest their removal.

The court’s order, which drew a sharp dissent from the three liberal justices, was in response to an emergency request by the administration and will remain in place while legal challenges to such removals make their way through lower courts.

As part of President Donald Trump’s mass-deportation efforts, the administration has attempted to send groups of migrants, some convicted of crimes in the United States, to countries other than their own, including to conflict-ridden South Sudan. Four individuals initially filed a lawsuit in Boston on behalf of all migrants potentially subject to third-country removals, saying they are entitled to notice and an opportunity to raise fear-based claims before deportation.

One group of potential deportees is being held in a makeshift detention facility at a US naval base in Djibouti, under health hazards and threat of rocket attacks, after the judge said a planned deportation flight to South Sudan violated his order.

As is typical in emergency orders, the court’s conservative majority did not explain its reasons for pausing the judge’s order.

In a nearly 20-page dissent, the liberal justices criticised the administration for violating that lower-court order and trying to send migrants to “a nation the State De­partment considers too unsafe for all but its most critical personnel”.

“Rather than allowing our lower court colleagues to manage this high-stakes litigation with the care and attention,” the liberals wrote, the majority was “rewarding lawlessness” by halting an order the administration has repeatedly defied.

“Apparently, the Court finds the idea that thousands will suffer violence in far-flung locales more palatable than the remote possibility that a District Court exceeded its powers when it ordered the government to provide notice to the targeted migrants,” wrote Justice Sonia Sotomayor, joined by Justices Elena Kagan and Ketanji Brown Jackson.

The case is one of several testing the Trump administration’s aggressive efforts to ramp up deportations and restrict legal and illegal immigration. In other cases, the Supreme Court has joined lower court judges in chastising Trump officials for failing to provide those targeted for deportation with sufficient time or due process to challenge their removals. In one case, Kilmar Abrego García was wrongly deported by the administration before being flown back from El Salvador to the United States this month after a protracted legal battle. The administration brought him back after securing an indictment against him for allegedly transporting undocumented migrants.

In the case involving the migrants being sent to South Sudan, the administration asked the Supreme Court to intervene after US District Judge Brian E. Murphy in Massachusetts ruled that the US cannot send migrants to an alternate country without giving them time to raise claims about their fears of being persecuted or tortured if they are sent there.

The deportees also must be interviewed by the Government, with their attorney and interpreter present, to determine whether they qualify for humanitarian protection.

Solicitor General D. John Sauer told the justices that the US is “facing a crisis of illegal immigration, in no small part because many aliens most deserving of removal are often the hardest to remove”.

Persuading other countries to accept migrants from other nations “requires sensitive diplomacy,” Sauer said. He argued that the lower court judge infringed on the executive’s authority over deportations and imposed an “onerous set of procedures” for the Government to assess any claims under the Convention Against Torture. The convention was ratified by Congress in 1994 to bar the US Government from sending people to countries where they might face torture.

Attorneys for the immigrants urged the Supreme Court to leave in place the lower-court order from April blocking their removal without notice. To do otherwise, they said in a filing, “would place thousands at substantial risk of deportation to third countries where they could face torture or death without the meaningful ability to contest that fate”.

The legal team, led by Trina Realmuto of the National Immigration Litigation Alliance, told the justices that the lower court “went to great lengths to avoid micro-managing” the administration’s compliance with federal law prohibiting such deportations – even of criminals – to third countries where they would face persecution or torture.

The administration’s “selection of war-torn countries - countries to which the State Department advises against travel - as places to which it plans to remove class members raises grave concerns absent the district court’s intervention,” the court filing states.

In addition, the lawyers disputed the administration’s characterisation of the migrants as “the worst of the worst”, saying that many of those targeted have not been convicted of crimes and initially entered the United States legally as refugees or on student or work-based visas.

Murphy, the district court judge in Massachusetts, has grown increasingly frustrated with the administration’s responses to his orders, accusing Justice Department lawyers of “manufacturing the very chaos they decry” as a way to evade his instructions. In May, Murphy found that the administration had violated his court order by attempting to remove one group of migrants, who are from Cuba, Vietnam, Myanmar, Laos and Mexico, after federal authorities determined they had committed serious crimes and their homelands would not take them.

A lawyer for the immigrants had urged Murphy to order the government to return the men bound for South Sudan to the US on grounds that their removal amounted to torture and a violation of federal law. But the judge declined to order their return, saying only that the Department of Homeland Security could bring them back for the interviews or conduct them where the migrants were being held.

In its filing, the administration said Murphy imposed a “set of intrusive and onerous procedures” on the government at odds with immigration law.

Sauer assured the court that under the Convention Against Torture, the administration “will not remove an alien to any country where he is likely to be tortured – i.e., the extreme scenario where the alien is likely to face severe pain or suffering intentionally inflicted by the hand or with the consent of a public official”.

Maria Sacchetti contributed to this report.