The Trump administration returned to the Supreme Court on Thursday, asking justices to overturn a federal judge’s ruling that blocks deportations to countries not listed in removal orders—a process known as third-country removals. In a 42-page filing, U.S. Solicitor General D. John Sauer argued that the government’s ability to deport certain noncitizens, including some convicted criminals, has been severely limited by lower court decisions.
Trump’s 2020 Third-Country Removal Order
The case stems from a January 2020 executive order from President Donald Trump directing the Department of Homeland Security (DHS) to remove undocumented immigrants with deportation orders who could not safely return to their home countries due to torture risks. Instead of sending them back, DHS proposed deporting them to third countries—those not named in their removal orders—provided those nations agreed not to torture them.
In February 2020, DHS issued internal guidance outlining the process: immigrants would be notified of the planned removal, given a chance to express fear of torture, and screened for credible threats. A month later, the agency added further protections, requiring written notice of the third country and a meaningful opportunity to challenge the removal if torture fears were reasonable.
By March 2020, four immigrants with removal orders sued in federal court in Massachusetts, arguing they had not been properly informed about potential third-country deportations. U.S. District Judge Brian Murphy ruled in their favor, blocking the practice until DHS provided written notice of the destination country and allowed immigrants to contest the move based on reasonable fears of torture, not just a statistical likelihood. Murphy also required DHS to give them 15 days to seek to reopen their cases if needed.
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Supreme Court’s Initial Stay and Dissent
The Trump administration first appealed to the Supreme Court in June 2020, asking the justices to pause Murphy’s order while the case proceeded. The court granted the request, though Justice Sonia Sotomayor dissented, joined by Justice Ketanji Brown Jackson and Justice Elena Kagan. The following day, the administration sought clarification, arguing that eight men detained on a U.S. military base in Djibouti could still be deported to South Sudan despite Murphy’s ruling. The court’s June 23 order temporarily halted Murphy’s restrictions, though Kagan noted in a concurring opinion that she disagreed with the decision.
When the case returned to the lower courts, Murphy issued a final judgment against the third-country removal policy. The 1st Circuit Court of Appeals largely upheld his ruling, and on Wednesday it dissolved the stay that had kept Murphy’s order from taking full effect while the government appealed.
Government Cites Logistical Disruptions
Sauer’s latest filing argues that Murphy’s ruling has caused logistical disruptions. He contended that the lower courts had ignored jurisdictional limits on reviewing torture claims outside formal removal petitions. Without Supreme Court intervention, Sauer warned, the government would face repeated delays in deporting dangerous criminals, forcing it to restart removal processes from scratch.
The justices now face a third request to intervene. Justice Ketanji Brown Jackson, who handles emergency appeals from the 1st Circuit, directed the immigrants in the case to respond by 4 p.m. EDT on Monday, September 28. The outcome could determine whether the Trump administration can proceed with third-country removals, or whether lower court restrictions remain in place.
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Legal Fight Over Torture Review Standards
The Trump administration’s filing emphasized that lower courts had exceeded their authority by reviewing torture claims outside the formal removal process. Sauer argued that the Immigration and Nationality Act restricts judicial review of such claims to petitions for review from removal orders, not to procedural disputes over third-country deportations. The government contended that Murphy’s ruling improperly extended protections beyond what Congress intended, particularly by requiring a “reasonable fear” standard rather than the “more likely than not” threshold set by statute.
The administration also challenged the 1st Circuit’s decision to uphold Murphy’s requirement that DHS provide written notice of the third country before deportation. Sauer asserted that this added step was unnecessary under the executive order, which only mandated that immigrants be given an opportunity to express fears of torture, not that they be formally notified of the destination. The government further argued that the 15-day window to reopen removal proceedings created an undue burden, as it forced DHS to pause deportations indefinitely while reviewing individual cases.
The Supreme Court’s decision on the Trump administration’s latest request will determine whether Murphy’s restrictions remain in effect or whether third-country removals can proceed while the case continues. The justices must now weigh the government’s claims of jurisdictional overreach against the immigrants’ arguments that their due process rights were violated by the lack of notice and meaningful review.
