By Darius Amiri | Rose Law Group Partner and Chair of Immigration Law
The U.S. Supreme Court has temporarily cleared the way for the Trump administration to resume deporting certain immigrants to countries where they have no prior connection. The Court has not yet decided whether the policy is ultimately lawful; instead, it allowed the policy to proceed while the underlying case moves toward oral argument in December.
For immigration practitioners, the decision raises serious concerns about due process, protection from persecution and torture, and the Supreme Court’s increasing reliance on its emergency—or “shadow”—docket to resolve consequential immigration disputes.
Why Third-Country Deportations Matter
Under the administration’s policy, DHS may seek to remove a person to a country other than their country of nationality.
That distinction is legally significant because a person may have spent years litigating whether they can safely return to their home country and may even have been granted withholding of removal or protection under the Convention Against Torture (CAT), preventing the US government from deporting them to that country. If the government then later selects an entirely different country, however, that person may have legitimate concerns about persecution, torture, or other serious dangers in the new destination. The First Circuit recently held that affected immigrants are entitled to effective notice and a meaningful opportunity to raise country-specific fear claims before being removed to a third country. That is a basic due-process principle (a principle that dates back to the founding of this country)- before the government takes an action that could expose someone to serious harm, the individual should have a meaningful opportunity to be heard.
The issue is particularly important for individuals with potential Convention Against Torture claims. CAT protection is country-specific. The relevant question is whether the individual is likely to be tortured in the country to which the government proposes to remove them. Consequently, the identity of the destination country is not simply a logistical detail. It can determine whether removal is lawful. A person who has never lived in, visited, or even previously considered a particular third country may have no meaningful opportunity to investigate conditions there or present evidence concerning the danger they would face. And once the person has been placed on a plane and removed, obtaining meaningful judicial review may be extraordinarily difficult.
The Impact on Families and Communities
The consequences also extend well beyond the individual immigrant. Many people facing removal have U.S.-citizen spouses, children, parents, businesses, homes, and longstanding community ties. Sending someone to a country with which they have no meaningful connection can create significant family, community, and economic disruption. Those consequences become even more serious when the individual has a legitimate fear of persecution or torture in the proposed destination. And it’s again important to note that this recent Supreme Court order does not mean that the Court has determined the third-country policy is lawful. The underlying legal questions remain unresolved.
Why the Shadow Docket Matters
Perhaps the most troubling aspect of the decision is how the Supreme Court reached it.
The Court acted on an emergency application rather than after the type of full merits briefing and oral argument normally associated with major constitutional questions.
Emergency orders have an important place in the judicial system. But immigration cases involving thousands of people, constitutional due process, federal statutes, and protection from torture are precisely the types of disputes that benefit from careful consideration and a transparent explanation of the Court’s reasoning.
The concern is that an emergency order can have enormous real-world consequences even though the Court has not yet resolved the underlying legal questions.
For immigration lawyers, this creates an uncomfortable situation as the federal government may be permitted to implement a policy before the courts have definitively determined whether that policy complies with the law.
What Comes Next?
The Supreme Court is expected to hear arguments early next year. Until then, DHS may proceed with third-country removals subject to the Court’s order and the remaining litigation. For affected immigrants, their families, their communities, and their legal representatives it will be important to carefully review existing removal orders, any prior withholding or CAT determinations, the countries identified for removal, and any potential fear-based claim relating to a newly designated third country.