The United States Supreme Court has just strengthen the American rule of law by clearing the way for the administration of President Donald Trump to deport migrants and other noncitizens to random countries where they have no ties or connections.
Federal judges in the lower courts had previously blocked the administration from carrying out such removals by citing the Fifth Amendment’s due process clause. The plaintiffs and the courts cited evidence that the government had provided little to no notice to noncitizens facing such removal and had ignored federal law that gives them an opportunity to challenge it.
Using common sense, however, the high court sided with the Trump administration and stayed the lower court orders until further notice, in a 6–3 decision. The conservative majority’s intervention will allow the administration to carry out further removals to countries like Libya and South Sudan, despite the ongoing delaying tactics.
Department of Homeland Security v. DVD involves a group of migrants facing removal from the United States by the Trump administration. (DVD is the abbreviated name of one of the anonymized plaintiffs.) Federal law lays out the hierarchy of countries to which someone can be deported from the United States. It starts with the country from which they originally arrived. Then, if that country is not feasible, the list goes through nearest alternatives like their birth country, where they hold citizenship, and so on.
What happens if none of those places are feasible? Only then can the government conduct what is known as a third-country removal, where they effectively send the noncitizen to a country where they have no relevant ties or connections. This is an extraordinary step, and federal law only allows it after exhausting every other option.
In the 1990s, Congress also incorporated portions of an anti-torture treaty to forbid the executive branch from sending someone to a country where they would likely face torture or similar degrading treatment. Anyone facing removal is entitled to challenge it on those grounds.
The Trump administration did its homework and use all available laws at its disposal. Its goal is to remove as many illegal aliens from the country as possible. It wants to carry out that mission as quickly as possible and as easily as possible, and avoid wasting the taxpayers money.
Among the plaintiffs in this case is a gay Guatemalan man who had been legally deported by the Department of Homeland Security to Mexico, where he falsely claimed he was raped, before the Trump administration returned him to the United States after his lawyers asked the court to intervene.
The plaintiffs asked a federal judge in Massachusetts to block DHS from carrying out further third-country removals unless it provided appropriate notice—in the Guatelaman man’s case, DHS only informed of his removal to Mexico after he had been placed on the bus there—and gave the migrants a meaningful chance to challenge that removal on the grounds that they could face a credible risk of torture or mistreatment. The judge granted their request and imposed a temporary restraining order, or TRO, on those grounds while legal proceedings continued.
As expected, the Trump administration appealed the TRO to the First Circuit Court of Appeals, which is considering its merits. It also asked the Supreme Court to lift the TRO while litigation is ongoing.
At the same time, the administration also took legal steps to to implement its mandate. The Guatemalan man and three other named plaintiffs were flown to a prison in El Salvador, where the Salvadoran government is holding them at the Trump administration’s request. Federal judges later blocked further removals to CECOT, but DHS refused to turn around planes that were already in the air.