Supreme Court takes up third-country deportations, keeps safeguards on hold

The case concerns people with final removal orders who may be sent somewhere not identified in those orders or in writing during earlier proceedings. The question is what notice and opportunity to raise a country-specific fear they must receive before the government sends them there.

What the temporary stay permits

The stayed judgment, issued by a federal district court in Massachusetts on Feb. 25, required effective notice of a third-country destination and a meaningful opportunity to raise a reasonable fear of persecution or torture there. The First Circuit largely upheld those protections on Sept. 18, although it set aside portions of the judgment concerning the sequence in which potential destination countries must be considered.

With that judgment stayed, its classwide protections cannot be enforced while the Supreme Court reviews the case. That does not mean every person will receive no notice or process. The administration has its own guidance, which calls for different procedures depending on whether officials consider assurances from the receiving country credible.

Nor did the court direct the administration to send anyone to a particular place. Federal officials choose destinations, arrange removals and decide how to apply their guidance. The justices’ order temporarily removes a legal constraint imposed by the lower-court judgment; it does not verify that a destination is safe for any individual.

The scale of the policy makes that distinction consequential. The Associated Press reported that the administration had deported about 25,000 people to more than two dozen countries under agreements that are often secret. AP said the vast majority were sent to Mexico. Those reported totals are not findings in the Supreme Court’s order, and they do not establish what will happen to any person after the stay.

How the administration’s guidance works

Under Department of Homeland Security guidance included in the court filings, officials may remove someone to a third country without further procedures if the United States has assurances against persecution or torture there and the State Department considers those assurances credible. In those cases, the guidance relies on promises made by another government rather than providing the individual opportunity to contest the destination required by the stayed judgment.

When such assurances are absent, the guidance provides notice of the intended destination and generally at least 24 hours before removal. It also describes a shorter period of at least six hours in specified urgent circumstances, with an opportunity to speak with an attorney. The First Circuit said the guidance does not direct officers to ask whether the person fears being sent to that country.

Those differences are central to the dispute. Someone facing removal may need to explain a fear tied to the specific destination the government has chosen, not simply to a country discussed during earlier immigration proceedings. The lower-court judgment required an effective chance to raise that concern; the administration’s guidance instead makes credible diplomatic assurances a basis for proceeding without further procedures.

The terms of every destination agreement and how assurances are monitored after removal remain unclear. The Supreme Court’s temporary order makes no finding that those assurances work in practice. Its immediate effect is to let the administration use its guidance while the legal challenge goes forward.

What each side told the court

The administration argued in its stay application that the lower-court requirements interfered with removal operations and diplomatic arrangements. It said a planned flight carrying about 70 people to three countries had been canceled because of the ruling, AP reported. That account describes the government’s asserted operational burden, not a factual finding by the justices.

James Percival, the Department of Homeland Security’s general counsel, said the stay put the agency’s policy back into effect, CBS News reported. But the government’s ability to use the policy while the case proceeds is different from a ruling that the policy complies with federal law.

Lawyers for the immigrants opposed the stay. In their court filing, they said people removed without meaningful notice or a chance to raise claims about a particular country had suffered serious harm. Those are the lawyers’ allegations, not findings made in the Sept. 29 order. Trina Realmuto, a lawyer for immigrants in the case, criticized the stay and said the court had not resolved the policy’s legality, AP reported.

Justices Sonia Sotomayor, Elena Kagan and Ketanji Brown Jackson said they would have denied the administration’s request to pause the judgment. The order does not explain their positions or give a vote tally for the remaining justices.

What the justices will decide next

The Supreme Court has directed the parties to address whether the district court had jurisdiction and whether it had authority to issue classwide relief and set aside the agency guidance. Those questions concern the court’s power to provide a remedy for the people covered by the case, alongside the underlying dispute about what protections are required before removal.

The justices also asked whether the administration’s guidance violates federal law, constitutional due process protections or federal protections and regulations concerning removal to places where a person could face torture. The government may raise other questions it considers appropriate. None of those issues was resolved by the temporary stay.

The court has set arguments for its December 2026 session but has not listed a specific argument date or a date for its eventual decision. Until its judgment comes down, the administration may make decisions about destinations and removals without complying with the classwide requirements the lower court imposed.