SCOTUS Removes Due Process Requirement On Deportations to Third Countries

The Supreme Court’s conservative wing on Monday allowed the Trump administration to conduct “third country removals,” deporting detainees to nations with which they may have no connection, and without a due process requirement put in place by a lower court. The court’s three liberals dissented.

The ruling suspends a lower court order which mandated a three-week period in which non-citizens would have to receive notice and an opportunity to challenge their removal to a third country before deportation.

It’s a big win for the Trump administration’s deportation regime, which seeks to speed up removals by sending people to whatever country is willing to take them, regardless of that state’s human rights record or ability to ensure the deportee’s safety.

In handing the White House that win, the Supreme Court is ignoring how far the administration has gone to flout judges’ authority, both in this case and in others. In this case — labeled D.V.D., the initials of one plaintiff — the judge issued orders requiring the administration to give detainees three weeks’ notice before their removal to third countries. Immigration and Customs Enforcement, however, continued to try to remove people in violation of that requirement. In one instance, several Venezuelans were sent to the American military base at Guantanamo Bay before being transferred to El Salvador’s CECOT prison — all after the judge issued an order blocking removals to third countries without the migrants receiving notice.

Weeks later, ICE tried to deport a planeload of people to Libya — also without notice. The judge in the D.V.D. case issued a terse note blocking that. Even then, the Trump administration continued: in late May, ICE sent another load of migrants on a plane bound for South Sudan. It stopped at a U.S. military base in Djibouti after the court intervened to say that the move was violating the judge’s authority; ICE declined to return the people back to the U.S.

The Supreme Court issued its ruling Monday via the emergency docket. The order itself is curt, particularly when compared to the 19-page fiery dissent written by Justice Sonia Sotomayor. Per the order, the court decided to grant a stay of the district court’s order until the First Circuit Court of Appeals can rule and until the government can ask the Supreme Court to review the case in full.

In the dissent, joined by Justices Elena Kagan and Ketanji Brown Jackson, Sotomayor wrote that the government’s conduct “resembles that of the arsonist who calls 911 to report firefighters for violating a local noise ordinance.”

She added that the court was “rewarding lawlessness” in staying the lower court order.

Sotomayor took square aim at the court’s decision to side with the government and its focus on jurisdictional questions around the lower court’s ability to require three weeks of notice before removals to third countries.

“Apparently, the Court finds the idea that thousands will suffer violence in far-flung locales more palatable than the remote possibility that a District Court exceeded its remedial powers when it ordered the Government to provide notice and process to which the plaintiffs are constitutionally and statutorily entitled,” she wrote.