By Andrew Chung
(Reuters) -The U.S. Supreme Court cleared the way on Monday for President Donald Trump‘s administration to resume deporting migrants to countries other than their own without offering them a chance to show the harms they could face, handing him another victory in his aggressive pursuit of mass deportations.
The justices lifted a judicial order that required the U.S. 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 U.S. District Judge Brian Murphy had issued the order on April 18.
The Supreme Court’s brief order was unsigned and came with no reasoning, as is common when it decides emergency requests. The court has a 6-3 conservative majority.
In a sharply worded dissent, Justice Sonia Sotomayor, joined by the court’s two other liberal justices, criticized the decision, calling it a “gross abuse” of the court’s discretion.
“Apparently, the court finds the idea that thousands will suffer violence in far-flung locales more palatable than the remote possibility that a district court exceeded its remedial powers when it ordered the government to provide notice and process to which the plaintiffs are constitutionally and statutorily entitled,” Sotomayor wrote. “That use of discretion is as incomprehensible as it is inexcusable.”
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 May 21 found that Trump’s 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.S. State Department has warned against any travel “due to crime, kidnapping and armed conflict.”
The judge’s intervention prompted the U.S. government to keep the migrants at a military base in Djibouti, although American 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.
“The ramifications of (the) Supreme Court’s order will be horrifying,” said Trina Realmuto, executive director of the National Immigration Litigation Alliance, which is helping to represent the plaintiffs.
The decision “strips away critical due process protections that have been protecting our class members from torture and death,” Realmuto said.
Murphy had 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. Due process generally requires the government to provide notice and an opportunity for a hearing before taking certain adverse actions.
The administration, in its May 27 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.
A FLOOD OF CASES
The dispute is one of many cases involving legal challenges to various Trump policies including immigration to have reached the nation’s highest judicial body since he returned to office in January.
The Supreme Court in May let Trump end humanitarian programs for hundreds of thousands of migrants to live and work in the United States temporarily. The justices, however, in April faulted the administration’s treatment of some targeted migrants as inadequate under U.S. Constitution’s due process protections.
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, U.S. authorities would assess the likelihood of persecution or torture, possibly referring the person to an immigration court, according to the guidance.
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 U.S. Circuit Court of Appeals on May 16 declined to put the judge’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.
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 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.
Reuters has also reported that U.S. officials had been considering sending migrants to Libya, another politically unstable country, despite previous U.S. condemnation of Libya’s harsh treatment of detainees. Murphy clarified that any removals without offering a chance to object would violate his order.
(Reporting by Andrew Chung in New York and John Kruzel in Washington; Editing by Will Dunham)
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