SCOTUS to Trump: Deport, Deport, Ignore the Courts
Right-wing justices give the president a green light for the deportation programs lower courts have found unlawful.
ON MONDAY, THE SUPREME COURT issued, without explanation, an order that permits, at least for the time being, the Trump administration to remove noncitizens to a “third country” (i.e., someplace other than the country from which the noncitizen arrived in the United States) with little or no notice or opportunity to contest the removal. The order, although not an opinion that seeks to settle a major constitutional question, is important in that it gives the administration the go-ahead to continue acting with blatant disregard for the limits of its statutory authority and for constitutional protections.
The underlying issue in the case is not whether these noncitizens can be deported. Many, if not all, of the parties to the case before the Court have been convicted of serious felonies and are already subject to valid judicial orders of removal.
Rather, the case raises the issue of where they can be removed to, and under what circumstances and conditions.
A district court judge had issued an injunction prohibiting the removal of the noncitizens to third countries while their challenge to the removal was pending in court. The district court also required the government to provide the noncitizens with written notice in advance of their removal, along with a meaningful opportunity to contest the removal to a third country. The Trump administration had sought permission to continue conducting its third-country removals without notice while the case was pending, but both the district court and the First Circuit Court of Appeals had denied their request. The government then asked the Supreme Court to stay the district court’s injunction, the effect of which would be to allow the government to continue its current practice of third-country removals.
In its Monday order, the Supreme Court granted the Trump administration’s request to stay the district court’s injunction, the practical effect of which was best expressed by a giddy spokeswoman for the Department of Homeland Security: “Fire up the deportation planes.” She left off the “to South Sudan” part.
TO UNDERSTAND HOW SOUTH SUDAN comes into this, let’s set aside what Monday’s order didn’t focus on—the circumstances and processes under which the Trump administration has legal authority to send noncitizens to third countries—and instead look at what it did focus on: the much narrower legal issue of whether the district court’s order temporarily prohibiting the government from sending certain noncitizens to third countries should stay in place while court challenges are still pending.
The legal literature addressing when and under what circumstances courts should grant temporary relief while a case is still pending could fill a library. Justice Sonia Sotomayor’s nineteen-page dissent, joined by Justices Elena Kagan and Ketanji Brown Jackson, amply demonstrates the complexity of the issue.
Stripped of the complex jurisprudential architecture—and knowingly oversimplifying—the obvious issue that should have driven the Court’s ruling is who is likely to suffer the most harm by a decision on whether the prohibition of sending noncitizens to third countries with minimal notice or opportunity to be heard should stay in place temporarily until the underlying case is decided. The question might be framed this way:
Does the harm that the individuals will suffer if they are sent to South Sudan immediately, before the merits of the case have been decided, outweigh the harm that the Trump administration will suffer if it is required to maintain them in custody for a few more months until the case is decided?
That question should answer itself.
South Sudan is one of the most dangerous places on earth. The U.N. Human Rights Commission in South Sudan has issued a warning that the precarious peace deal that ended a disastrous five-year civil war that left hundreds of thousands dead before it ended in 2018 was on the verge of collapse. South Sudan’s current president has detained its vice president, who was his blood enemy during the civil war, on allegations of stirring up a new rebellion. Even the State Department under President Trump, which refers to South Sudan’s government as “transitional,” has taken actions to revoke all visas held by South Sudanese passport holders and to prevent further entry in the United States.
Moreover, none of the noncitizens in question has any connection whatsoever with South Sudan or, for that matter, anyplace else in Africa. They are all from Central and South America.
But none of that apparently mattered to the justices who granted the Trump administration’s request to temporarily stay the district court’s order prohibiting the government from continuing with its third-country removals. In the words of Justice Sotomayor, “the Court appears to give no serious consideration to the irreparable harm factor.”
IN THE ABSENCE OF A WRITTEN JUSTIFICATION for its order, it is also unclear whether the Court gave any serious consideration to the legal justification, if any, for what the Trump administration claims it should be free to do.
And the Trump administration’s justification for its actions here is highly dubious at best, lawless at worst.
The issue of where a non-citizen can be removed to is governed primarily by 8 U.S.C. § 1231(b). That statute states a general rule that noncitizens should be removed to the country from which they arrived in the United States, but it also provides for exceptions. If the country of origin is unwilling to accept the noncitizen, possible countries for removal can include a country designated by the noncitizen, or the noncitizen’s country of birth, citizenship or previous residence. If removal to any of those countries is “impracticable, inadvisable, or impossible,” noncitizens can be removed to any other country that will accept them.
The Trump administration clearly interprets this to mean that they can send noncitizens to any country that will accept them, full stop. The government’s application to the Supreme Court makes no attempt to describe any steps that were taken by the Trump administration to determine whether the noncitizens involved might be removed to their countries of choice, birth, citizenship, or previous residence. That, it seems, is one of the issues that would have to be adjudicated by the district court before deciding whether the government should be permitted to ship these individuals off the South Sudan. That alone should be sufficient to tell the government to stop until the matter is finally heard and adjudicated.
Equally important, as noted in Justice Sotomayor’s dissent, is that noncitizens facing removal are entitled to challenge deportation under the Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (“CAT”).
The Trump administration’s application to the Supreme Court acknowledges that “the alien may seek withholding or deferral of removal under regulations implementing” CAT, and cites DHS guidance on how to implement the requirements of CAT.
The DHS guidance distinguishes between removals to countries that have provided “credible assurances” that any aliens removed there will not be tortured, and removals to those countries that have not done so. For countries that have provided such an assurance, “the alien may be removed without the need for further procedures.” For countries that have not offered such credible assurances, DHS must first inform the alien of removal to the country, and give him an opportunity to “affirmatively express a fear of persecution or torture” there. If he does so, an immigration officer will conduct a prompt screening to determine whether he “would more likely than not be” tortured in the country of removal. If the alien fails to satisfy this standard, he “will be removed.”
This guidance is, in a word, pathetic. It provides absolutely no effective safeguard against delivering noncitizens into the arms of the worst, most dangerous regimes in the world.
Start with the first prong, that no process or procedures of any kind are required to remove noncitizens to a third country so long as that country has provided “credible assurances” that they will not be tortured.
Who decides which assurances are “credible”? What does “credible” even mean?
Since “credible” is doing so much work here, here’s a “credible” imagining of a conversation between Donald Trump and the perpetually cowboy-hatted president of South Sudan, Salva Kiir Mayardit:
DJT: Yo, Salva. Nice hat!
SKM: It’s yours, Mr. President! I’ll send it on the first plane out.
DJT: That’s a very beautiful gesture, Salva. But don’t bother rustling up a plane, we’re already sending one over. We have four convicted criminals we’ve been trying to ship out of the country, but nobody seems to want to take them. They’re real scumbags, the worst of the worst. I was hoping I could send them to you.
SKM: No problem. We know how to handle scumbags.
DJT: But there’s a catch. We can’t send them to you unless you promise to treat them humanely. Can I have your word?
SKM: Pinky promise! Don’t worry, we’ll take care of them!
DJT: Perfect! Keep the aliens. Send the hat.
Full disclosure: This is not a verbatim transcript. Truth to tell, I just made it up. But “credible,” non?
And what about the second prong of the DHS “guidance”? It’s not much better. If a country refuses to provide credible assurances that it won’t torture some poor soul we want to hand them—about as red a flag as you can imagine—what next? Well, an “immigration officer” (maybe the one who, masked, detained the noncitizen in the first instance) will conduct a “prompt screening” to determine whether the noncitizen would “more likely than not” be tortured at the hands of the government that has already refused to provide assurance that it would not do so.
Cold comfort, that.
The bottom line here is that despite the fact that the Trump administration’s third-country removal program is on the shakiest of legal grounds and has in fact been repeatedly found to be unlawful, the Supreme Court has, without explanation, given it a green light. It has effectively decided the case in the Trump administration’s favor without even addressing the merits. It easily could have—and should have—left the district court’s order in place without causing the government any harm other than the cost of keeping a handful of noncitizens in custody until their challenges to removal to third countries has been ruled upon by the courts.
But instead, without taking any accountability, and pretending to resolve only a narrow procedural issue, the Court found a way to give the Trump administration what it wants.
This does not bode well for the future.
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