Supreme Court Allows ICE to Restart Third-Country Removals

The “shadow docket” strikes again.

The conservative justices on the Supreme Court cleared the way Tuesday for the Trump administration to restart its “third-country removal” scheme, less than two weeks after an appeals court ruled it was unlawful.

The short, unsigned ruling also laid out a framework for oral arguments before the Court in the case, known as D.V.D. v. Department of Homeland Security, that appeared to give the Trump administration a wildly unfair advantage.

It was the third time the conservative justices used the emergency review power to overrule lower-court orders stopping third-country removals, in which an immigrant who can’t be deported to their country of origin is forcibly expelled to a country where they have no ties.

More from Gillian Brockell

The First Circuit Court of Appeals ruled on September 19 that the scheme was unlawful, upholding U.S. District Court Judge Brian Murphy’s February opinion. But as I predicted at the time, the Supreme Court, in agreeing to hear the case on the merits, granted the Trump administration a stay on the circuit court opinion until it could make a final ruling, which is unlikely to come until next spring or summer. That means several more months of ICE deportation flights to third countries.

The last line of the ruling says, “Justice Sotomayor, Justice Kagan, and Justice Jackson would deny the application for stay”—making clear by default that it came from the conservative justices.

Typically, temporary rulings like stays are supposed to weigh the harms of allowing or prohibiting a certain action and choose the least harmful option until a final ruling can be made. Here, it appears the conservative justices think not allowing the Trump administration to go forward with an unprecedented policy would be more harmful than tens of thousands of immigrants being cast out to every corner of the Earth, with no redress and often with no legal status.

“Appears” is key here, because, as has become typical of Supreme Court rulings, no legal justification for overriding the appeals court is given.

Due process being brought into the case for the first time is good news for the attorneys representing immigrants, who have been limited so far to arguing under narrower laws. But the ruling also included instructions to the attorneys in the case on what questions they should be prepared to answer for coming filings and at oral arguments in December. This is typical when the Court decides to hear a case, but some of the instructions were a flashing alarm that there may be conservative shenanigans afoot:

(1) Whether the district court had jurisdiction over Respondents’ claims. (2) Whether the district court had authority to enter classwide declaratory relief … (3) Whether the Government’s Guidance on third-country removals is unlawful under 8 U. S. C. §1231(b), the Due Process Clause, or FARRA/CAT and its implementing regulations. (4) Such other questions that the Government determines are appropriate for the proper disposition of the case. (emphasis added)

The first two questions open up room for the conservative justices to strike down the lower court’s rulings using procedural arguments: that the case was filed in the wrong jurisdiction, or that it only covers the named plaintiffs instead of the whole class of immigrants targeted by the scheme. That could allow third-country removals to continue for years until another case could be brought.

But the last phrase—“Such other questions that the Government determines are appropriate for the proper disposition of the case”—is the most suspect and unusual. It appears to empower Justice Department lawyers to argue whatever they want before the Court, while the other side will be limited to the legal questions already laid out. This could give the government an opening to claim national security imperatives or create entirely new precedents arrogating power to the executive to do whatever they want on immigration policy.

On social media, legal scholar Stephen Vladeck said he’d “never seen this before.” Civil rights lawyer Sherrilyn Ifill called the phrase “astonishing.”

“If you want to include a catchall question, why limit it to issues that one side thinks are relevant?” asked Sam Bagenstos, a law professor at the University of Michigan.

Conservative shenanigans are not new to the case. Just last week, the Prospect reported that the Trump administration was attempting to expel a Peruvian man to the Central African Republic within days, using a bizarre claim that the First Circuit decision wasn’t in effect until it had filed what amounted to final paperwork. Attorneys filed an emergency request for clarification, citing the Prospect’s story, prompting a late-night response from the circuit court that its ruling was “effective immediately.”

The New York Times reported the next day that third-country nationals had been pulled off of planes heading to Costa Rica, Honduras, and the Central African Republic.

The conservative justices have repeatedly used the shadow docket to pave the way for third-country removals going back to July of 2025, when they lifted a federal judge’s temporary order barring the removal of seven third-country nationals to South Sudan. Fourteen months later, two of those immigrants have been repatriated to their countries of origin, while the other five—who are from Cuba, Laos, and Myanmar—have been imprisoned without charge in an unknown location and without access to legal counsel, according to Amnesty International.

More than 25,000 people have been subjected to third-country removals so far during Trump’s second term, according to Third Country Deportation Watch, thanks largely to the shadow docket.

The post appeared first on The American Prospect.