Immigrants face third-country deportations while Supreme Court weighs the policy

A stay changes the timing of removal

The dispute concerns people with final deportation orders whom the administration seeks to remove to countries other than their own. The administration says it uses third-country removals when people cannot be returned to their home countries or those countries will not accept them.

On Sept. 18, the First Circuit upheld a district court’s conclusion that the administration’s guidance was unlawful. The appeals court said the guidance did not ensure effective notice and a meaningful chance to raise fears about a proposed destination before removal. The Supreme Court has now stayed the district court’s Feb. 25 judgment, rather than decided whether the appeals court was right.

The lower-court judgment was not a categorical prohibition on sending people to third countries. Its central requirement was process before removal. Staying that judgment changes what the government can do while the case proceeds, precisely when advance notice and an opportunity to object would matter to someone who fears a particular destination.

The administration said a lower-court ruling caused it to cancel a flight carrying about 70 people bound for three countries. That passenger count and the flight’s planned destinations are the administration’s account, not independently established details. The account illustrates why the government pressed for immediate relief: it wants to conduct removals without waiting for the Supreme Court’s final answer.

The people facing those removals do not share a single experience. The Associated Press reported that some migrants have been imprisoned in countries they did not know before arrival. Attorneys for people challenging the policy say some affected people have no criminal convictions and have been found at risk of torture or persecution. Those reports and assertions do not describe every deportee, but they show why a destination-specific objection can be consequential.

Who decides whether a destination is safe?

The administration’s strongest case against the lower-court judgment is operational: it says the requirements for notice and an opportunity to object impede removals. It says receiving governments offer assurances against persecution or torture. Those assurances are its answer to the concern that a third-country destination could expose someone to danger.

The First Circuit’s account of the guidance shows the gap in that answer. The guidance allowed removal without notice where the government considered diplomatic assurances credible and contemplated minimal notice for other destinations. The appeals court said the public record before it did not identify which countries had supplied assurances.

An assurance from a receiving government and an opportunity for an affected person to speak are different safeguards. The first reflects what officials have been told; the second lets a person raise a fear tied to the place they will actually be sent. The First Circuit found that the guidance failed to secure the latter. It did not decide the separate constitutional due-process question.

The concern is not merely hypothetical. CBS News reported that people deported to Liberia said they learned their destination shortly before departure or during the flight. Their reported experience does not establish how much notice every person receives, but it makes the timing question concrete: notice delivered too late may leave little opportunity to challenge a destination before removal.

The justices must decide rights and the reach of a remedy

The Supreme Court has agreed to consider more than whether the guidance meets legal protections against removal to danger. It directed the parties to address federal immigration law, due process and anti-torture protections, as well as whether the district court had authority to hear the case and grant relief covering a class of people. It also asked whether the district court could set aside the policy under the Administrative Procedure Act.

Those questions could lead to different kinds of rulings. A decision about the district court’s authority to grant broad relief would not, by itself, establish that the guidance gives people enough notice. A decision on the guidance’s legality would address more directly what protections the administration must provide. The Supreme Court’s order supplies no reasoning for the stay, so it does not tell readers which answer the justices favor.

Justices Sonia Sotomayor, Elena Kagan and Ketanji Brown Jackson said they would have denied the stay. The order gives no explanation of their positions either. Department of Homeland Security general counsel James Percival welcomed the immediate result, saying the policy was back in effect, as CBS News reported. That describes the government’s ability to proceed for now, not a final judgment on the policy.

The case is set for the Court’s December argument session, though the docket gives neither a specific argument date nor a date for a decision. Until judgment, the unresolved question for people facing removal is immediate: what notice and chance to raise a country-specific fear will they receive before the government sends them away?