Trump administration seeks to stay district court order prohibiting government from deporting noncitizens absent additional analysis that they may face torture  

This article was updated on May 28 at 10:56 a.m.

The Trump administration on Tuesday afternoon asked the Supreme Court to pause an order by a federal judge in Massachusetts that prohibits the federal government from deporting immigrants to a country that is not specifically identified in their deportation orders unless the government first meets criteria to ensure that the immigrants will not face torture in that country. “These judicially created procedures,” U.S. Solicitor D. John Sauer told the justices, “are currently wreaking havoc on the third-party removal process,” infringing on the executive branch’s power over immigration and disrupting “sensitive diplomatic, foreign-policy, and national-security efforts.” 

The court called for a response to the government’s request by 4 p.m. on Wednesday, June 4.

The order by U.S. District Judge Brian Murphy has garnered significant attention in the past several days as it has, at least for now, stymied the Trump administration’s efforts to remove a group of immigrants to South Sudan, which is once again teetering on the edge of civil war. 

Like many of the disputes coming to the court on its emergency docket, the case before the court has its roots in the Trump administration’s efforts, set in motion by an executive order signed by President Donald Trump on Jan. 20, to remove undocumented immigrants from the United States. As part of the order, Trump instructed the Department of Homeland Security to take “all appropriate actions” to remove noncitizens who were in the United States despite having orders to deport them. 

In February, DHS issued internal guidance instructing a division of U.S. Immigration and Customs Enforcement to determine whether undocumented immigrants who had received deportation orders but had not yet been removed because of the possibility that they would be tortured if they were returned to their home countries could instead be removed to a different country. Such removals, Sauer said, “are often the only viable option for removing” some immigrants. 

On March 30, DHS issued more guidance, in which it indicated that before immigrants can be removed to a country that is not specifically identified in their removal orders and that has not assured the United States that the immigrants will not face torture, DHS must follow a series of procedures: It must notify the immigrants of the planned removal, give them a chance to “affirmatively express” fear that they will face torture, and – if needed – conduct a screening to determine the likelihood that they will indeed be tortured. 

Four immigrants with removal orders filed this lawsuit in Massachusetts in March, contending that they feared being removed to a country that was not identified in those orders. Murphy issued an order that barred the government from deporting them and others to third countries. And Murphy directed DHS to provide immigrants and their lawyers with written notice of the third country to which they might be removed, as well as a “meaningful opportunity” to challenge that removal. DHS should also, Murphy instructed, decide whether the immigrants’ fears of torture were “reasonable,” rather than whether it is “more likely than not” that they will be tortured. If immigrants cannot make that showing, Murphy added, DHS must give them at least 15 days to seek to reopen their immigration proceedings. 

On May 20, the Trump administration sought to remove several immigrants, all of whom had been convicted of crimes in the United States that included murder, arson, kidnapping, and armed robbery, to South Sudan. One day later, Murphy ruled that the removal violated his earlier order, because the government had not provided the immigrants with enough time to raise any concerns about the possibility of torture in South Suden. He added that for purposes of his order, that “meaningful opportunity” meant “a minimum of ten days.” 

As for the immigrants whom the government had flown to South Sudan, who are now being held on a military base in nearby Djibouti, Murphy ordered the government to “maintain custody and control” over them. After giving them 72 hours’ notice, Murphy added, as well as resources “commensurate” with what they would receive if they were still in the United States, the government must also interview them “in private” to give them a chance to voice any fears about torture. 

Sauer came to the Supreme Court on Tuesday, asking the justices to put Murphy’s order on hold while the government’s appeal moves forward. He told the justices that the dispute “addresses the government’s ability to remove some of the worst of the worst illegal aliens.” 

 “Convincing third countries to accept some of the most undesirable aliens requires sensitive diplomacy, which involves negotiation and the balancing of other foreign-policy interests. Until recently,” Sauer stressed, “those efforts were working.” But Murphy’s order, he said, “has stalled these efforts nationwide.” 

That order, Sauer continued, has placed the United States between a rock and a hard place with respect to the immigrants currently on the base in Djibouti: It can either conduct more immigration proceedings at the base or it can bring the immigrants back to the United States. 

Moreover, Sauer added, Murphy’s orders conflict in several ways with federal immigration law. Congress gave the executive branch, rather than federal courts, primary authority over the deportation of noncitizens from the United States, he wrote, and over the execution of removal orders. Federal law also bars courts from issuing the kind of broad relief that Murphy ordered in this case, he continued. 

Because of what he described as “the urgency of the circumstances and the government’s ongoing irreparable injury in the diplomatic, immigration, and foreign policy spheres,” Sauer also asked the court to issue an administrative stay – that is, to temporarily block Murphy’s order while the justices consider the government’s request. That request will go first to Justice Ketanji Brown Jackson, who fields emergency appeals from the geographic area that includes Massachusetts.