Court allows Trump administration to move forward in sending group of immigrants to South Sudan

The Supreme Court on Thursday afternoon cleared the way for the Trump administration to send a group of immigrants currently being held on a U.S. military base in the east African country of Djibouti to South Sudan. In a brief opinion, the justices made clear that their June 23 order, which paused an order by a federal judge in Massachusetts limiting the government’s ability to deport immigrants to countries that are not specifically identified in their removal orders, applies fully to the eight immigrants in U.S. custody in Djibouti.

Justice Sonia Sotomayor dissented, in an opinion that was joined by Justice Ketanji Brown Jackson. She argued that Thursday’s order “clarifies only one thing: Other litigants must follow the rules, but the administration has the Supreme Court on speed dial.”

The order came less than two weeks after the Supreme Court put on hold, at least for now, an April 18 order by U.S. District Judge Brian Murphy that prohibited the federal government from sending immigrants to “third countries” – that is, countries not explicitly listed in their removal orders – without first following a series of steps to help ensure that the immigrant would not be tortured if deported to those countries.

The dispute at the center of Thursday’s opinion by the justices stems from an order that Murphy issued on May 21, when he concluded that the federal government had violated his April 18 order when it tried to deport eight men to South Sudan – a country from which the U.S. government has evacuated all non-emergency personnel, and for which the State Department has issued an advisory recommending against travel to the country because of “crime, kidnapping, and armed conflict.”

The plane carrying the immigrants that was headed to South Sudan landed instead in nearby Djibouti, where the men have been held at a U.S. military base.

The Trump administration went to the Supreme Court on May 27, asking the justices to pause Murphy’s April 18 order and allow it to carry out “third country” removals while litigation over the practice continues. U.S. Solicitor General D. John Sauer contended that Murphy’s “judicially created procedures are currently wreaking havoc on the third-country removal process” and “disrupt[ing] sensitive diplomatic, foreign-policy, and national-security efforts.”

Lawyers for the immigrants facing possible third-country removals urged the justices to keep Murphy’s order in place. They stressed that the government could still carry out such deportations; Murphy’s order “simply requires” the Trump administration “to comply with the law” when doing so, they said.

In a brief unsigned order on June 23, the justices blocked Murphy’s order, at least for now.

Sotomayor dissented from that ruling, in a lengthy opinion joined by Justices Elena Kagan and Jackson. “Apparently,” she lamented, “the Court finds the idea that thousands will suffer violence in far-flung locales more palatable than the remote possibility that a District Court exceeded its remedial powers when it ordered the Government to provide notice and process to which the plaintiffs are constitutionally and statutorily entitled.”

Several hours after the Supreme Court acted on the Trump administration’s request, Murphy indicated that his May 21 order was not affected by the June 23 order.

The Trump administration returned to the Supreme Court the next day, asking the justices to make clear that the federal government could move forward with deporting the immigrants currently held on the U.S. base in Djibouti. Sauer urged the court to act quickly to address what he described as Murphy’s “unprecedented defiance” of the court’s power.

Lawyers for the migrants pushed back, telling the justices that Murphy issued his May 21 order to provide a remedy for the government’s violation of his April 18 order. Moreover, they added, the men’s “lives and safety” “are at imminent risk.”

In Thursday’s brief, unsigned opinion, the majority indicated that the court’s “June 23 order stayed the April 18 preliminary injunction in full. The May 21 remedial order cannot now be used to enforce an injunction that our stay rendered unenforceable.”

Kagan wrote a brief concurring opinion in which she explained that she “continue[d] to believe that this Court should not have stayed” Murphy’s April 18 order. “But a majority of this Court saw things differently,” she acknowledged, “and I do not see how a district court can compel compliance with an order that this Court has stayed.”

Sotomayor’s dissent contended that “[w]hat the Government wants to do, concretely, is send the eight noncitizens it illegally removed from the United States from Djibouti to South Sudan, where they will be turned over to the local authorities without regard for the likelihood that they will face torture or death.” Sotomayor argued that the court should not have considered the government’s request at all, because it should have made its arguments in the lower courts first instead. Moreover, she suggested, the Supreme Court’s “continued refusal to justify its extraordinary decisions in this case, even as it faults lower courts for failing to properly divine their import, is indefensible.”