Washington — The Trump administration asked the Supreme Court on Tuesday to lift a lower court order that blocked immigration authorities from removing migrants to third countries without first providing them certain due process rights while a legal battle over President Trump’s deportation efforts continues.
The request for emergency relief from Solicitor General D. John Sauer stems from a preliminary injunction granted by U.S. District Judge Brian Murphy last month in a challenge brought by four migrants who are subject to final orders of removal.
The district judge’s order prevented the administration from deporting any migrant detainee unless it first provides written notice of the third country — one other than their home country — to which they may be removed, and gives them a “meaningful opportunity” to raise a fear of torture, persecution or death in that third country, among other conditions. In his ruling, Murphy found it is likely that federal immigration officials “have applied and will continue to apply the alleged policy of removing aliens to third countries without notice and an opportunity to be heard on fear-based claims — in other words, without due process.”
“Defendants argue that the United States may send a deportable alien to a country not of their origin, not where an immigration judge has ordered, where they may be immediately tortured and killed, without providing that person any opportunity to tell the deporting authorities that they face grave danger or death because of such a deportation,” Murphy wrote. “All nine sitting justices of the Supreme Court of the United States, the assistant solicitor general of the United States, Congress, common sense, basic decency, and this court all disagree.”
But in seeking relief from the Supreme Court, Sauer accused the district court of stalling the administration’s efforts to remove what he described as “some of the worst of the worst illegal aliens.”
“Those judicially created procedures are currently wreaking havoc on the third-country removal process,” Sauer wrote. “In addition to usurping the Executive’s authority over immigration policy, the injunction disrupts sensitive diplomatic, foreign-policy, and national-security efforts.”
The emergency appeal is the latest in which the Trump administration has asked the Supreme Court to step into the slew of legal battles targeting many aspects of President Trump’s second-term agenda. But the president’s policies on immigration, in particular, have created escalating showdowns with the federal judiciary.
Mr. Trump began his efforts to target migrants in the U.S. illegally on his first day back in the White House, when he directed the Department of Homeland Security to take action to detain and deport those who had been ordered removed but were still in the U.S.
Following that directive, the department ordered immigration officials to “determine the viability of removal to a third country” for those migrants, which are deportations to a country other than the ones designated on an order of removal.
The four migrants who brought the case now before the Supreme Court alleged that there are “valid reasons to fear removal to specific countries” that were not listed in their removal orders and said that their due process rights would be violated if the government did not provide them with notice and an opportunity to be heard before they were deported to a third country.
The migrants first secured a temporary restraining order in late March, followed by the injunction in mid-April. The Trump administration appealed that decision to the U.S. Court of Appeals for the 1st Circuit, though it declined to immediately halt the district court’s order.
But as proceedings continued, lawyers told the court in a filing that migrants from Laos, Vietnam and the Philippines were being prepared for removal to Libya, “a country notorious for its human rights violations.”
Then, last week, immigration lawyers again told Murphy that they had received information that at least two men from Myanmar and Vietnam may have been boarded on a plane bound for South Sudan, in violation of his preliminary injunction. South Sudan has been engaged in a bloody civil war for more than a decade and the State Department has warned Americans not to travel to the country due to “crime, kidnapping and armed conflict.”
On May 21, the Trump administration confirmed it had placed eight migrant detainees with serious criminal records on a removal flight to South Sudan. The judge then said that the government had “unquestionably” violated his order blocking deportations to third countries without providing migrants the chance to contest their removal and ordered the administration to give six deportees “reasonable fear” interviews, with the opportunity to have a lawyer of their choosing present during the interview.
Reasonable fear interviews typically assess whether a migrant can stay in the U.S. because of a risk of persecution or torture.
The judge said the Department of Homeland Security could provide this process to six of the migrants either within the U.S. or abroad if the government “retains custody and control” over them.
Following the judge’s order, Mr. Trump confirmed that the migrant detainees were being held at a military base in Djibouti, a small African country.
In his filing with the Supreme Court, Sauer lambasted the district court’s orders, writing that “the United States has been put to the intolerable choice of holding these aliens for additional proceedings at a military facility on foreign soil — where each day of their continued confinement risks grave harm to American foreign policy — or bringing these convicted criminals back to America.”
