Supreme Court ruling gives US new powers to deport migrants to countries to which they have no connection

The US Supreme Court on Monday allowed the Trump administration to deport migrants to countries other than their own, putting on hold a lower court ruling that required giving them a chance to prove if they would be tortured if sent to a third country. The decision may enable the US to remove men held at a military base in Djibouti to South Sudan.

The court gave no reasons for its decision. It said the lower court ruling would remain paused while the government appeals and until the Supreme Court acts. The three liberal justices disagreed, issuing a long dissent.

No links to destination countries

This order refused to give migrants a chance to prove that they would be tortured if sent to a country with which they have no link. The lack of reasons made it unclear why the court ruled this way.

Tricia McLaughlin, a spokesperson for the Department of Homeland Security, said, “DHS can now execute its lawful authority and remove illegal aliens to a country willing to accept them. Fire up the deportation planes.”

Leila Kang, a lawyer with the Northwest Immigrant Rights Project, told The New York Times, “The Supreme Court’s ruling leaves thousands of people vulnerable to deportation to third countries where they face torture or death, even if the deportations are clearly unlawful.”

Dissent calls decision a threat to due process
In dissent, Justice Sonia Sotomayor, joined by Justices Elena Kagan and Ketanji Brown Jackson, said the majority ignored a federal law requiring due process. “Congress expressly provided noncitizens with the right not to be removed to a country where they are likely to be tortured or killed,” she said. “Being deprived of the right not to be deported to a country likely to torture or kill you plainly counts as grievous loss. Thus, plaintiffs have a right to be heard.”

Sotomayor added that the majority had endorsed “lawlessness” and said the government felt it could “deport anyone anywhere” without notice or a chance for a hearing.

Contested deportation flight to Djibouti
The case started after a judge ruled that migrants cleared for deportation had the right to notice and an opportunity to challenge being sent to a third country. The issue gained attention when eight men were put on a flight said to be headed for South Sudan, a country most had never visited. Instead, the flight landed in Djibouti, where the men have been held ever since.

One man was from South Sudan, and another was set to be sent to Myanmar. The rest were left in limbo. All had been convicted of serious crimes. The judge said the men must be given access to lawyers and a chance to contest their removal.

The government argued that allowing review forced it to operate a “makeshift detention facility” in Djibouti, disrupting the base and consuming resources meant for service members. The solicitor general said that holding the men in a converted conference room exposed staff to health and security threats, including the risk of a rocket attack from Yemen.

Legal arguments and counterclaims
The lawyers for the men said the ruling would have serious consequences for migrants and accused the government of trying to remove people to dangerous places with only hours’ notice. The solicitor general responded that the judge’s ruling stopped the government from removing “some of the worst of the worst illegal aliens,” many of whom came from countries that refused to accept their return.

He said that as a result, “criminal aliens are often allowed to stay in the United States for years on end, victimizing law-abiding Americans in the meantime.” In a related case in March, a lawyer in the solicitor general’s office had stated that the government must give notice of the destination and an opportunity for the person to raise a claim if they feared torture.

Judge Brian E. Murphy of the US District Court in Boston had ruled that migrants must have ten days to raise claims about torture and another 15 days to contest adverse findings. The solicitor general argued that this delayed the president’s ability to carry out foreign policy and added that “it typically takes minutes, not weeks, for an alien to express a fear of being tortured in a country.”