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Speeding up Trump agenda, Supreme Court allows third-country deportations

The U.S. Supreme Court has allowed the Trump administration to proceed, for now, with deporting migrants to any country that will accept them.

The one-paragraph, unsigned聽 stayed a block on such 鈥渢hird country鈥� removals that was issued by a federal judge in April. The high court鈥檚 three Democratic-appointed justices dissented.

Legal challenges in the case, Department of Homeland Security v. DVD, will continue, but the order will aid the Trump administration鈥檚 aggressive deportation agenda. The high court has now approved multiple Trump immigration policies. And the court has again given the administration a legal victory via the justice鈥檚 fast-moving and opaque emergency docket. In another theme of the past five months, the Supreme Court also appears unconcerned with the Trump administration seeming to defy a lower court order.

Because the case reached the court via the emergency docket 鈥� also known as the 鈥渟hadow docket鈥� 鈥� the justices received limited briefing and no oral argument. As with Monday鈥檚 order, Supreme Court decisions in such cases are often short and unsigned.

This 鈥渋s an unsigned decision, with no analysis, that is going to allow the government to resume sending people to third countries with no notice and no process,鈥� says Sarah Sherman-Stokes, an immigration law professor at the Boston University School of Law.

鈥淭hat should worry us,鈥� she adds. 鈥淏ut even bigger than that, this decision endorses the government defying a federal court order and getting away with it, and in fact getting rewarded for it.鈥�

Monday鈥檚 ruling bodes well for the government, however, says George Fishman, senior legal fellow at the Center for Immigration Studies, a policy organization that supports strict immigration policies.

In a 2008 relating to an American being held in Iraqi custody, Chief Justice John Roberts wrote that allegations regarding the likelihood of torture in a foreign country 鈥済enerally must be addressed by the political branches, not the judiciary.鈥�

鈥溾�嬧�婽he tea leaves indicate ... that the court is likely on the merits to rule for the government,鈥� says Mr. Fishman.

Increased use of third-country deportations

Third country deportations are not new, but the Trump administration has sought to expand their use. The law allows the government to remove a migrant to if it鈥檚 鈥渋mpracticable, inadvisable, or impossible鈥� to remove them to the country they are a citizen of, or the country they entered the United States from.

In March, the U.S. Department of Homeland Security issued a guidance that if a third country provides 鈥渃redible鈥� assurance that it will not persecute or torture migrants, the U.S. can deport migrants there with minimal due process.

But the guidance skipped a critical due process step, four migrants have argued in a lawsuit filed that month. U.S. law and international law allow immigrant detainees to challenge their removal to a third country if they believe they would likely experience torture, persecution, or death there. This pleading asks for CAT relief, after the United Nations Convention Against Torture.

A federal judge issued an order in April pausing third-country removals of detainees who are not given a chance to pursue CAT relief. With its Monday order, the Supreme Court lifted that order. 鈥淭he decision is as incomprehensible as it is inexcusable,鈥� wrote Justice Sonia Sotomayor in a dissent.

鈥淎pparently, 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,鈥� she added.

How Trump鈥檚 immigration policies are faring at the Supreme Court

This is not the first time the Supreme Court has, on an emergency basis, allowed a controversial Trump immigration policy to take effect.

In April, the justices ruled unanimously that the government could deport alleged Venezuelan gang members under the Alien Enemies Act of 1798, so long as the detainees 鈥渞eceive notice and an opportunity to be heard.鈥�

Weeks later, U.S. District Court Judge Brian Murphy cited that high court ruling in the context of third-country removals. Seeking CAT relief is a 鈥渟mall modicum of process [that] is mandated by the Constitution,鈥� he聽. He issued a preliminary injunction barring DHS from deporting immigrant detainees to third countries without first allowing them to raise a fear of torture or persecution.

That injunction, the Trump administration told the justices, harms its ability 鈥渢o remove some of the worst of the worst illegal aliens.鈥� Congress, the administration, has delegated the CAT relief process 鈥渆ntirely to the Executive Branch.鈥�

Plaintiffs responded that the injunction merely gives them the right to pursue basic due process.

鈥淭he injunction does not stop Defendants from executing removal orders to third countries,鈥� the plaintiffs argued in聽. 鈥淚t simply requires Defendants to comply with the law when carrying them out.鈥�

There is also clear evidence that the Trump administration hasn鈥檛 been complying with Judge Murphy鈥檚 order.

In early May, the government was in the process of deporting Laotian, Vietnamese, and Filipino detainees聽 when the judge blocked it with an emergency restraining order. Two weeks later, reports emerged that the government had deported a half dozen men 鈥� of various nationalities, and all convicted of serious crimes 鈥� to South Sudan.

Judge Murphy ordered DHS to 鈥渕aintain custody and control鈥� of the men so they could be returned 鈥渋f the Court finds that such removals were unlawful.鈥�

The men are now being held on a U.S. military base in Djibouti, in a converted shipping container, under the care of 11 federal immigration officers, according to court documents. One imminent consequence of the Monday order is that the men will likely now be sent to a South Sudan that recently appeared to be聽on the brink of civil war.

鈥淒iplomatic assurances don鈥檛 satisfy鈥� the Convention Against Torture, says Scott Roehm, director of global policy and advocacy at the Center for Victims of Torture.

鈥淭here鈥檚 no recourse if [the assurances] are breached; there鈥檚 no accountability for a country that breaches them. They鈥檙e often sought from countries that are systematic violators of the prohibition on torture,鈥� he adds.

Ongoing legal challenges

Trump administration officials cheered the Monday ruling.

鈥淒HS can now execute its lawful authority and remove illegal aliens to a country willing to accept them,鈥� the agency鈥檚 assistant secretary, Tricia McLaughlin, said in a statement on Monday. 鈥淔ire up the deportation planes.鈥�

While the administration can resume deporting immigrant detainees to certain countries with minimal due process, the legal challenge to the policy will continue as well.

Monday鈥檚 order also represents another significant emergency ruling from the justices, and another one siding with the Trump administration. In addition to this case and the Alien Enemies Act, the Supreme Court has also allowed the administration to revoke temporary protected status for roughly 350,000 Venezuelan immigrants.

Combined with the evidence of Trump administration defiance of court orders in this case, the Supreme Court order breaks new and troubling ground, legal experts say.

鈥淭he absence of any admonishment or even mention of the fact that the government defied a federal court order twice is pretty profound,鈥� says Professor Sherman-Stokes. 鈥淚t practically invites future defiance whenever the government doesn鈥檛 like what a federal court judge says.鈥�