Supreme Court Allows Rapid Deportation to Third Countries Without Due Process

The Supreme Court, despite its earlier ruling that immigrants being deported must be allowed enough due process to challenge their deportation, lifted a lower court’s order that had required due process before deportation to a third country to which an immigrant has no connection and which was not mentioned in their initial deportation order.

The nationwide injunction lifted by the Supreme Court came from federal District Judge Brian Murphy. It required immigrants to be given “meaningful” advance notice and an opportunity to file a legal challenge before they are expelled to a third country—a nation that was not mentioned in their original deportation orders and to which they have no linkage.

The government subsequently tried to send seven men to war-torn South Sudan, with which they had no connection, without the due process Murphy’s order required. Murphy threatened to hold government officials in contempt of court for this. He allowed the government to choose how it would cure its contempt. The government chose to keep the immigrants at a stopover on a military facility in Djibouti and provide due process there. It has yet to figure out how to do so. The immigrants and the federal agents guarding them are enduring illness, withering heat and generally poor conditions while they wait.

The federal government’s solution to this quandary was an emergency request to the Supreme Court asking to put Murphy’s injunction on hold. With no explanation for its about-face, the majority granted the request.

Justice Sonia Sotomayor wrote a blistering dissent which Justice Elena Kagan and Justice Ketanji Brown Jackson joined, saying it the majority were “rewarding lawlessness” by the government.

Lawyers for the men stranded in Djibouti asked Murphy to require that they be returned to the USA for due process and continue blocking their deportation to South Sudan without due process. Murphy declined to make any changes in that case, saying a previous ruling protects them and is not affected by the Supreme Court stay of his injunction.

In the aftermath of the Supreme Court’s action, federal judges can still bar deportation to a third country for individual cases. Immigrants confronting deportation orders can lodge more sweeping claims of “credible fear” that name countries they are not linked with which are known for human rights abuses or mistreatment of foreigners. Both USA law and the United Nations Convention Against Torture prohibit deporting people to a country where they are likely to face torture.

Since Donald Trump took office for his second term, the USA has tried to make deals for third-country deportations to at least Angola, Benin, Costa Rica, El Salvador, Eswatini, Equatorial Guinea, Guatemala, Guyana, Honduras, Kosovo, Libya, Mexico, Moldova, Mongolia, Panama, Rwanda, Saudi Arabia, Ukraine and Uzbekistan. A few countries have accepted such deals.

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Click here to read the dissent.