TheUS supreme courtcleared the way on Monday forDonald Trump’s administration to resume deporting migrants to countries other than their own without offering them a chance to show harms they could face, handing him another victory in his aggressive pursuit of mass deportations.
The justices lifted a judicial order that required the government to give migrants set for deportation to so-called “third countries” a “meaningful opportunity” to tell officials they are at risk of torture at their new destination, while a legal challenge plays out.
Boston-based US district judge Brian Murphy had issued the order on 18 April.
The court’s three liberal justices – Sonia Sotomayor, Elena Kagan and Ketanji Brown Jackson – dissented from the decision.
After the Department of Homeland Security moved in February to step up rapid deportations to third countries, immigrant rights groups filed a class action lawsuit on behalf of a group of migrants seeking to prevent their removal to such places without notice and a chance to assert the harms they could face.
Murphy on 21 May found that the administration had violated his order mandating further procedures in trying to send a group of migrants to politically unstable South Sudan, a country that the U state department has warned against any travel “due to crime, kidnapping and armed conflict”.
The judge’s intervention prompted the US government to keep the migrants at a military base in Djibouti, although US officials later said one of the deportees, a man from Myanmar, would instead be deported to his home country. Of the other passengers who were on the flight, one is South Sudanese, while the others are from Cuba, Mexico, Laos and Vietnam.
Reuters also reported by that officials had been considering sending migrants toLibya, another politically unstable country, despite previous US condemnation of Libya’s harsh treatment of detainees. Murphy clarified that any removals without offering a chance to object would violate his order.
As part of its pattern of assailing various judges who have taken actions to impede Trump policies challenged as unlawful, the White House in a statement called Murphy “a far-left activist judge”.
The administration, in its 27 May emergency filing to the supreme court, said that all the South Sudan-destined migrants had committed “heinous crimes” in the United States including murder, arson and armed robbery.
The dispute is the latest of many cases involving legal challenges to various Trump policies including immigration to have already reached the nation’s highest judicial body since he returned to office in January.
The supreme court in May let Trump endhumanitarianprograms for hundreds of thousands of migrants to live and work in the United States temporarily. The justices, however, in Aprilfaultedthe administration’s treatment of some targeted migrants as inadequate under US constitution’s due process protections.
Due process generally requires the government to provide notice and an opportunity for a hearing before taking certain adverse actions.
In March, the administration issued guidance providing that if a third country has given credible diplomatic assurance that it will not persecute or torture migrants, individuals may be deported there “without the need for further procedures.”
Without such assurance, if the migrant expresses fear of removal to that country, US authorities would assess the likelihood of persecution or torture, possibly referring the person to an immigration court, according to the guidance.
Murphy found that the administration’s policy of “executing third-country removals without providing notice and a meaningful opportunity to present fear-based claims” likely violates due process requirements under the constitution.
Murphy said that the supreme court, Congress, “common sense” and “basic decency” all require migrants to be given adequate due process. The Boston-based 1st US circuit court of appeals on 16 May declined to put Murphy’s decision on hold.
In his order concerning the flight to South Sudan, Murphy also clarified that non-citizens must be given at least 10 days to raise a claim that they fear for their safety.
The administration told the supreme court that its third-country policy already complied with due process and is critical for removing migrants who commit crimes because their countries of origin are often unwilling to take them back.