What to know about US Supreme Court order on third-country deportations

What was the case?

According to a BBC report, the case concerns eight migrants from Myanmar, South Sudan, Cuba, Mexico, Laos and Vietnam, described by the Trump administration as “the worst of the worst.” US courts had convicted all men of violent crimes, with most of them having either completed or nearing the end of their sentences. The government was legally authorised to deport them, according to a report in The New York Times.

The group was initially held at an Immigration and Customs Enforcement (ICE) detention centre in Texas on May 17, with the understanding that they would be deported to their respective home countries. Two days later, the administration informed the men of their intent to deport the group to South Africa and sought their signed acknowledgement, which all eight denied, The NYT reported.

An emergency lawsuit was brought before Boston federal judge Brian Murphy the same day. He held that the Department of Homeland Security (DHS) had given the men less than 24 hours’ notice before they were deported, violating a court order from April on granting such migrants a “meaningful opportunity” to explain a reasonable fear of torture. He also held that if the government found that they had failed to demonstrate such a fear, they would be allowed “a minimum of 15 days” to challenge the legality of the deportations in court.

Homeland Security is holding eight deportees under 24/7 guard at a US military base in Djibouti. (NYT)

According to The NYT report, the administration proceeded with its plan but decided to send the men to South Sudan instead on May 20. It is unclear if an agreement has been signed between the government for the same.

The men travelled from Texas to Ireland before reaching South Sudan. On May 21, Judge Murphy said the Trump administration had violated his order barring deportations without allowing people time to object to their transfer to the African nation. The whereabouts of the group remained unknown until Trump took to social media the next day to post, “EIGHT of the most violent criminals on Earth remain in Djibouti.”

What did the Supreme Court ruling say?

Monday’s 6-3 ruling allows the government to potentially deport the men, currently being detained at a US naval base in Djibouti, to South Sudan, as planned.

While the court did not describe its rationale in the brief order, the three liberal judges on the bench issued a lengthy dissent. Justice Sonia Sotomayor wrote that the court ruling exposes “thousands to the risk of torture or death”, while giving the Trump administration a free rein.

She also referenced a separate case from April in which the administration decided to fly out four non-citizens to Guantanamo Bay, and from there to El Salvador, “in violation of unambiguous” lower court orders. The government “thus openly flouted two court orders,” even before it went to the Supreme Court, she wrote.

“The government has made clear in word and deed that it feels itself unconstrained by law, free to deport anyone anywhere without notice or an opportunity to be heard,” she wrote in the dissent, also signed by Justices Elena Kagan and Ketanji Brown Jackson. “This is not the first time the court closes its eyes to noncompliance, nor, I fear, will it be the last.”

Does the US normally deport people to foreign countries?

This is not the first time the US has relied on other countries to take in its deportees. However, accepting countries typically have agreements with the US describing the deportation flights that can be accepted.

Some countries, like China and Cuba, have refused to accept the deportation flights, while countries like Venezuela do not have diplomatic ties with the US. Others have limited the frequency of deportation flights. The NYT reported that Mexico has long been a destination to remove those who cannot be returned to their home countries.

The Trump administration has pushed for countries to repatriate their own citizens, including China, Venezuela and Cuba, to ensure faster deportations to countries far away from the US. “And the further away the better, so they can’t come back across the border,” Secretary of State Marco Rubio said during an April cabinet meeting, according to an NPR report.

The Trump administration is also in court over its deportation of Venezuelans whom it had described as dangerous gang members to a notorious prison in El Salvador.

How are the present deportations significant?

The case has highlighted how the US has abandoned the principle of ‘non-refoulement’, a longstanding principle of international law and domestic policy that prevents sending people to places where they would be at risk of torture and other persecution. This can also include the home countries of refugees.

It also aligns with other steps taken by the administration, such as an affidavit by Rubio wherein he declared the move to send migrants to South Sudan and Libya as part of a ‘diplomatic push’ to improve relations, according to a NYT report. Similarly, a statement by the US State Department noted that they would no longer indicate in annual human rights reports whether a nation had violated its obligations not to send anyone “to a country where they would face torture or persecution.” It justified this, saying it would now focus the reports on “human rights issues themselves rather than a laundry list of politically biased demands and assertions.”

Lawyers for the eight deportees have sought to highlight the risk posed by repatriating the deportees in South Sudan, given its political instability and instances of violence after its independence from Sudan in 2011. More recently, political tensions in the country have threatened to escalate into another civil war.

The US was the leading international donor to South Sudan, providing over $993 million in humanitarian assistance in FY 2022, the State Department said in a 2023 report. The report also noted the internal displacement of large sections of the population “due to sub-national violence and natural disasters”.

The move also draws a comparison with the British Conservative government’s 2022 deal with Rwanda to transfer asylum-seekers from the UK to the African nation. The arrangement transferred the responsibility of asylum-seekers to the national Rwandan system to consider their need for international protection. Regardless of their refugee or humanitarian status, people transferred to Rwanda would remain there, without the possibility of returning to the UK.