Supreme Court Pauses Restrictions on Trump’s Third-Country Deportations

The Supreme Court on Tuesday temporarily stayed lower-court requirements governing third-country deportations, allowing the Trump administration to resume the removals for now. The temporary stay does not resolve the policy’s underlying legality.

Third-country removals can send immigrants to countries other than their countries of citizenship or origin, including destinations not identified in their removal orders. DHS issued internal guidance directing ICE to consider third-country removal for undocumented immigrants with deportation orders who had not been removed because they might be tortured if returned to their home countries.

The case centers on the procedures used for these third-country removals.

U.S. District Judge Brian Murphy and the U.S. Court of Appeals for the First Circuit had found that the policy failed to provide meaningful notice and an opportunity to raise fear-based objections to third-country removal. The lower-court requirements call for notice of the destination and an opportunity to raise safety objections before removal. Justices Sonia Sotomayor, Elena Kagan and Ketanji Brown Jackson indicated they would deny the government’s stay request.

Plaintiffs’ counsel Trina Realmuto called the Supreme Court’s order devastating, saying it permits removals under what she characterized as a policy courts had found unlawful for failing to provide meaningful notice or a chance to make safety claims. She warned that people may be placed on flights before learning their destination or having an opportunity to explain why they fear being sent there.

The dispute over removal safeguards

The parties’ dispute implicates federal-law protections: Federal law prohibits the government from sending immigrants to countries where they face persecution or torture when the law’s conditions are met. The procedural question is whether notice and an opportunity to raise safety objections allow people to present such concerns before removal.

The administration describes the policy as a lawful and essential enforcement tool for removing people whose home countries will not accept them, including people it characterizes as serious criminal offenders.

Solicitor General D. John Sauer argues that the lower-court requirements improperly obstruct that tool. The requirements provide individualized notice and proceedings to consider fear-based objections. Sauer says they slow or derail deportations, add expense and disrupt arrangements with destination countries. He says they can also leave people convicted of serious crimes in the United States.

Sauer said a scheduled deportation flight carrying 70 people with criminal convictions to three countries was canceled after the lower-court order took effect.

Realmuto and the immigrant plaintiffs’ lawyers counter that the requirements do not prohibit third-country deportations but require the government to carry them out lawfully. They say the requirements do not require anyone’s release from detention or undo existing arrangements with other countries, and argue that the government can avoid delays by providing legally required notice and a chance to be heard.

The estimate provides context for the broader use of third-country arrangements as the procedural dispute continues.

Assurances and allegations of harm

The administration says it relies on assurances from destination countries that deportees will not be persecuted or tortured.

Immigrants’ lawyers allege that removals without meaningful notice or a safety hearing have resulted in detention, abuse, disappearance, imprisonment and pressure to return to countries people had fled.

Realmuto and immigrant-rights advocates challenge the adequacy of diplomatic assurances. They argue that denying people a meaningful opportunity to raise country-specific safety concerns leaves them vulnerable to persecution, torture or other grave harm in destinations with which they have no connection.

The Supreme Court will hear oral arguments on the legal challenge in December. The Court instructed litigants to brief the legality of the DHS guidance and whether Murphy had the power to consider the immigrants’ claims and invalidate the guidance. Those questions remain unresolved by the temporary stay.