A nation that abandons due process turns its back on justice

The second Trump administration has taken unprecedented actions to meet its aggressive goal of deporting one million immigrants this year. It has conducted raids near sensitive locations like schools and churches and arrested people complying with their immigration obligations at court hearings and ICE check-ins. It has weaponized the immigration courts to deny a record number of asylum cases. It has terminated temporary humanitarian protections for individuals from nations reeling from natural disaster and civil unrest. And where noncitizens cannot be removed to their home countries, it has increasingly sent them to third countries where they face grave risks without due process.

A country of removal is designated for noncitizens facing deportation, typically at the outset of proceedings. In the vast majority of cases, it is the noncitizen's country of origin or, alternatively, another country in which they hold citizenship or some other status. Where removal to the designated country is "impracticable, inadvisable, or impossible," for example the country will not accept their return, U.S. law permits removal to a third country. However, such removals are subject to statutory and constitutional protections to ensure noncitizens are not returned to places where they will be persecuted, tortured, or killed. 

Since January, the administration has removed, or attempted to remove, at least 760 individuals to countries such as El Salvador, Costa Rica, Libya, Panama and South Sudan, with plans to add up to 58 additional nations willing to receive nonnationals with no discernible connection. Among them are countries experiencing acute humanitarian crises and lethal political violence. In a break from past practice, before conducting these third-country removals, the administration has provided minimal or no notice of the intended destination and no opportunity for the individual to express fear of removal or to contest it.

On March 23, plaintiffs -- represented by the National Immigration Litigation Alliance, the Northwest Immigrant Rights Project, and Human Rights First -- brought a lawsuit challenging third-country removals executed without safeguards. One of the named plaintiffs, O.C.G., is a gay Guatemalan man who was granted protection from return to Guatemala. While transitioning through Mexico en route to the United States, O.C.G. was kidnapped and raped. Nevertheless, the administration returned him to Mexico with no chance to seek protection from removal there. Mexican authorities then deported him to Guatemala, where he has been forced into hiding.

On April 18, a federal district court in Massachusetts granted a preliminary injunction and certified a nationwide class of individuals with a final removal order who face deportation to a country not previously designated or identified in writing. Through that and subsequent clarifying orders, the preliminary injunction requires the government to provide written notice of the intended country of removal and a minimum of 10 days for the individual to raise their fear of torture if removed to that country. The government appealed and requested a stay of the injunction, which the 1st Circuit Court of Appeals declined.

In an unreasoned decision on June 23, the Supreme Court granted the government's request to stay the preliminary injunction while the litigation proceeds. That is to say, the Supreme Court is at least temporarily allowing the administration to continue its practice of sending people to countries other than their own with no due process or screening to assess their fear of being sent to those countries.

Justice Sonia Sotomayor dissented in a 19-page opinion joined by Justices Elena Kagan and Ketanji Brown Jackson. The dissent voiced special concern with the government's "misconduct" in this case, having "openly flouted two court orders." By granting discretionary relief to a party with unclean hands, the dissent cautioned that the majority "further erodes respect for courts and for the rule of law."

The parties are currently engaged in briefing, contesting the scope of the Supreme Court's decision lifting the injunction. For instance, there is a dispute over whether the district court's separate order requiring the government to retain custody of the eight men it attempted to deport to South Sudan on May 20 still stands. The plaintiffs argue that the Supreme Court's decision does not undo the separate protections given by the district court to this group of individuals, as the remedial measures were intended to redress the government's violation of the injunction, which was in force at the time of their removal. The men, who hail from Cuba, Laos, Myanmar, Mexico and Vietnam, were diverted to a shipping container at a U.S. naval base in Djibouti, where they allegedly remain.

The case will inevitably end up back before the Supreme Court on the merits. It is possible that unlawful third-country removals will be struck down once and for all. But there is little doubt that individuals will be harmed in the meantime. And the harm done to the bedrock principles of due process and democratic institutions may also be irreparable.