Supreme Court to Hear Challenge on Immigrant Deportations to Third Countries

Why it matters locally: While North Dakota has a smaller immigrant population compared to some other states, this Supreme Court case could affect the procedures and legal safeguards for individuals facing deportation who may reside in or pass through the state, potentially impacting local U.S. Immigration and Customs Enforcement operations.

The Supreme Court has scheduled oral arguments for December to examine the practice of deporting immigrants to countries not listed in their removal orders. This procedure, known as "third-country removals," faces a legal challenge from several immigrants. In an unsigned order issued Tuesday afternoon, the justices permitted the government to continue these third-country removals pending a full review of the case. The Court's three Democratic appointees — Justices Sonia Sotomayor, Elena Kagan, and Ketanji Brown Jackson — indicated their dissent from this decision, stating they would have denied the administration's request to resume the removals. The dispute originates from a January 2025 executive order by then-President Donald Trump. This order directed the Department of Homeland Security (DHS) to remove noncitizens present in the United States who had received deportation orders. Following this directive, DHS issued internal guidance. This guidance instructed U.S. Immigration and Customs Enforcement to assess whether undocumented immigrants, who had received deportation orders but remained in the U.S. due to potential torture in their home countries, could instead be sent to another nation. A month later, DHS issued additional guidance. This guidance outlined procedures for deporting immigrants to a country not specified in their removal orders and lacking assurances against torture. The procedures included notifying immigrants of the planned removal, allowing them to express fears of torture, and screening them to determine the likelihood of torture. In March, four immigrants with removal orders filed a lawsuit in federal court in Massachusetts. They argued a fear of deportation to a country not identified in their original orders. U.S. District Judge Brian Murphy subsequently issued an order. This order prohibited the government from deporting the plaintiffs and others under similar circumstances to third countries without providing written notice of the destination country and a "meaningful opportunity" to challenge the removal. Judge Murphy also mandated DHS to determine if immigrants' fears of torture were "reasonable," rather than requiring a higher standard of "more likely than not." If immigrants could not meet this showing, Judge Murphy required DHS to grant them at least 15 days to reopen their immigration proceedings. U.S. Solicitor General D. John Sauer appealed to the Supreme Court in May 2025, requesting a pause on Judge Murphy's order. The Court granted this request on June 23, with Justice Sotomayor dissenting, joined by Justices Jackson and Kagan. One day later, Sauer returned to the Supreme Court. He sought clarification that the administration could deport eight men held at a U.S. military base in Djibouti, whom Judge Murphy had ruled could not be removed to South Sudan under his original order. On July 3, the Court issued an opinion stating its June 23 order had paused Judge Murphy's order "in full," including his subsequent ruling regarding the South Sudan deportations. Justice Kagan wrote a concurring opinion, acknowledging her disagreement with the initial pause but stating that a district court could not compel compliance with a stayed order. Justices Sotomayor and Jackson again dissented. In February of this year, Judge Murphy issued a final judgment in favor of the immigrants. He invalidated the third-country removal policy. He ruled that immigrants must receive "meaningful notice" and a "meaningful opportunity" to challenge deportation to a third country based on a reasonable fear of persecution or torture there. The U.S. Court of Appeals for the 1st Circuit largely upheld Judge Murphy's ruling on September 18. Five days later, it dissolved a March 2026 order that had put Judge Murphy's ruling on hold during the government's appeal. This prompted Sauer's third appeal to the Supreme Court, asking the justices to again block Judge Murphy's order. Sauer argued that Judge Murphy's order deprived the government of a tool to remove noncitizens, including those with criminal records. He contended the order relied on flawed legal premises and created logistical problems for removal operations, including flight cancellations, increased expenses, diplomatic issues, and an inability to remove individuals deemed dangerous. The immigrants countered that Judge Murphy's decision did not prevent third-country removals, but instead required the administration to conduct them lawfully. They told the justices that the administration's arguments disregarded the harm resulting from deporting U.S. residents, some without criminal histories, to third countries where they might face persecution or torture. They stated that any difficulties the administration might experience were not irreparable or caused by Judge Murphy's decision, as the order does not mandate releasing immigrants, prohibit third-country removals, or undo existing arrangements. They argued the government could avoid delays by providing the required notice and opportunity to be heard. The Supreme Court's Tuesday order put Judge Murphy's order on hold and scheduled the case for oral argument in December. The Court instructed litigants to brief several questions, including the legality of the DHS guidance, Judge Murphy's authority to hear the claims and invalidate the guidance, and any other questions the government deems appropriate for the case's disposition. Justices Sotomayor, Kagan, and Jackson noted their dissent from pausing Judge Murphy's order but provided no further explanation.