Washington — The Supreme Court on Thursday cleared the way for the Trump administration to deport a group of migrants with criminal records held at a U.S. naval base in Djibouti, clarifying the scope of its earlier order that lifted restrictions on removals to countries that are not deportees’ places of origin.
The high court’s follow-up ruling came after it paused a federal judge’s April injunction that prevented the Trump administration from deporting migrants to so-called third countries without first giving them notice of the destination and a chance to contest their deportation there by raising fears of torture, persecution or death.
Soon after that order by the Supreme Court last month, U.S. District Judge Brian Murphy said that a decision he issued in May requiring the Trump administration to provide interviews with U.S. asylum officers to the men detained in Djibouti before removing them to South Sudan remained “in full force and effect.”
Those men — who hail from Latin America and Asia, and have been convicted of serious crimes in the U.S. — have been held at the Djibouti base for weeks after Murphy ordered the Department of Homeland Security to retain custody of them. The Trump administration has described deplorable and dangerous conditions faced by the personnel sent to guard the men in Djibouti, including concerns about malaria, rocket attacks, inadequate security protocols and triple-digit outdoor temperatures.
Murphy issued his order in May after finding that the Trump administration violated his initial injunction when it attempted to swiftly remove the migrants to South Sudan with less than 24 hours’ notice and no chance to raise fear-based claims. The world’s youngest country, South Sudan remains plagued by violence and political instability, with the State Department warning Americans not to travel there.
According to the Justice Department, the State Department has received “credible diplomatic assurances” from South Sudan that the migrants will not be subject to torture.
The Supreme Court on Thursday said Murphy’s May order “cannot now be used to enforce an injunction that our stay rendered unenforceable,” referring to the April injunction from Murphy that the high court paused last month. Justice Elena Kagan wrote in a concurring statement that, while she opposed the Supreme Court’s initial pause, “I do not see how a district court can compel compliance with an order that this Court has stayed.”
In a dissent that was joined by Justice Ketanji Brown Jackson, Justice Sonia Sotomayor said the high court’s majority was effectively allowing the Trump administration to pursue “unlawful ends,” expressing concern about the safety of the deportees.
“What the Government wants to do, concretely, is send the eight noncitizens it illegally removed from the United States from Djibouti to South Sudan, where they will be turned over to the local authorities without regard for the likelihood that they will face torture or death,” Sotomayor wrote.
The legal fight
The Supreme Court’s original order last month was a significant legal victory for President Trump and his mass deportation campaign. As part of that effort, administration officials have sought to convince countries around the globe, including in far-flung parts of Africa, to accept deportees who are not their citizens. Several countries — including El Salvador, Costa Rica, Panama and Kosovo — have already agreed to host migrants from other nations who have been deported from the U.S.
The high court’s decision in June was unsigned and did not contain any reasoning, prompting questions as to whether the Trump administration could move to deport the migrants being held in Djibouti to South Sudan, as it was initially trying to do. The three liberal justices — Kagan, Sonia Sotomayor and Ketanji Brown Jackson — dissented.
After Murphy clarified that the Department of Homeland Security could not yet remove the men without first providing them additional process, Solicitor General D. John Sauer sought further word from the justices.
Sauer, who represents the government before the court, argued that the justice’s decision meant there is no injunction in place barring the deportation of the migrants in Djibouti. Murphy’s ruling, he wrote, “is a lawless act of defiance that, once again, disrupts sensitive diplomatic relations and slams the brakes on the executive’s lawful efforts to effectuate third-country removals.”
“This court should immediately make clear that the district court’s enforcement order has no effect, and put a swift end to the ongoing irreparable harm to the executive branch and its agents, who remain under baseless threat of contempt as they are forced to house dangerous criminal aliens at a military base in the Horn of Africa that now lies on the borders of a regional conflict,” Sauer said.
Immigration attorneys disagreed and told the Supreme Court in a filing that Murphy’s May order “is the only shield that preserves and protects their statutory, regulatory, and due process rights to seek protection from torture in South Sudan.”
They said that the judge’s order requiring the government to retain custody of the eight deportees and provide them reasonable-fear interviews was simply a remedy that was issued to address the Trump administration’s violation of his injunction.
Plus, the immigration attorneys said that when the Justice Department first sought the Supreme Court’s intervention to resume third-country deportations, it did not seek relief from that follow-up order regarding the attempted removals to South Sudan.
“Because the district court’s remedial order is not before the court, it remains in effect,” they argued. “Any other conclusion would reward the government’s defiance of the district court’s orders.”
The back-and-forth over the third country removals before the Supreme Court has played out on its emergency docket, where the Trump administration has requested relief while legal proceedings play out. Decisions on those requests are typically made only with written briefing and no oral argument, and the court’s decisions often do not include its reasoning or how its members voted.
The Trump administration has filed more than a dozen emergency appeals with the Supreme Court, many arising from its efforts to curtail illegal immigration into the U.S. The high court has allowed the government to end two programs protecting nearly 1 million migrants from deportation while the challenges move forward.
But it has also said that migrants facing swift deportation under a 1798 law known as the Alien Enemies Act must receive notice and an opportunity to challenge their removals in court.
