DOJ appeals judge’s block on third-country deportations after Supreme Court intervenes twice
Key Takeaways
- The Justice Department has appealed a district court order blocking DHS from removing certain noncitizens to “third countries.”
- It has been reported that the Supreme Court twice granted emergency relief narrowing or pausing the lower court’s order while litigation continues.
- The dispute centers on DHS authority under the Immigration and Nationality Act (INA) to remove people with final orders to countries other than their nationality, such as places of last residence or transit.
- Advocates argue the practice risks refoulement (return to danger), while the government says the block disrupts routine removal operations when a home country won’t accept returns.
- For now, removals may proceed in some circumstances due to the Supreme Court’s interventions, but the appeal keeps outcomes in flux.
What happened
The Department of Justice (DOJ) has appealed a Biden-appointed federal judge’s order that barred the Department of Homeland Security (DHS) from deporting certain migrants to third countries, it has been reported. The order restricted DHS’s use of long-standing statutory tools to remove noncitizens with final orders of removal when their home country is not an available destination. According to the reporting, the Supreme Court has already stepped in twice on the government’s emergency requests, limiting the impact of the lower court’s injunction while the case proceeds.
At issue are removals under 8 U.S.C. § 1231(b)(2), which authorizes DHS to designate alternative countries for removal—such as a country of last residence, a country the person transited, or any country willing to accept the individual—if removal to the country of nationality is not feasible. The district court’s order, as described, curtailed that practice; DOJ’s appeal seeks to restore it fully pending a final ruling.
The legal fight
Plaintiffs challenging the policy argue that third-country deportations risk violating non-refoulement obligations, including protections under the Convention Against Torture (CAT), and may sidestep procedural safeguards intended to assess fear of harm. The government counters that the INA explicitly permits alternative-country removals and that DHS applies fear-screening processes—such as “reasonable fear” interviews—when individuals indicate a fear of persecution or torture in the proposed country of removal.
The Supreme Court’s emergency actions do not resolve the merits but signal concern about sweeping injunctions that disrupt nationwide enforcement. By narrowing or pausing the order, the Court has allowed some removals to continue while the appeal moves forward. The appellate court will now weigh statutory text, agency discretion, and the adequacy of existing safeguards against harm in third countries.
What this means for immigrants right now
For individuals with final orders of removal, the practical effect is uncertainty. Because of the Supreme Court’s interventions, DHS may still pursue removal to third countries in certain cases, particularly where a home country refuses repatriation or lacks diplomatic channels. Anyone who fears harm in the country DHS proposes should urgently disclose that fear to trigger protection screenings; this can include seeking a reasonable fear interview and, where appropriate, filing for withholding of removal or CAT protection.
Immigration lawyers should monitor the appeal closely and advise clients that outcomes may change quickly. Those with pending fear claims or protection grants should carry documentation and ensure DHS has updated counsel information. As litigation continues, policy could shift again—affecting travel planning, custody decisions, and timelines for removal or release.
Source: Original Article