A federal appeals court issued a ruling Monday allowing Homeland Security to continue deporting illegal immigrants to countries other than their homes when the need arises, putting on indefinite hold a decision by a lower court that had stopped the practice.
Known as “third-country” removals, they come into play when someone has been ordered deported by an immigration judge but their home country either won’t take them back, or they have reason to fear persecution if they were sent back.
For decades, that usually meant they were released back into the U.S., but the Trump administration has made a concerted effort to find other nations that would take them.
Judge Brian Murphy, a Biden appointee to the court in Massachusetts, declared the administration’s third-country removal push illegal in a ruling late last month, but put it on hold to give a chance for appeal.
The First U.S. Circuit Court of Appeals has now put Judge Murphy’s ruling on hold while it more broadly considers the issues.
The ruling was 2-1, with Judges Jeffrey R. Howard, a George W. Bush appointee, and Seth Aframe, a Biden appointee, siding with the administration’s request. Judge Lara Montecalvo, another Biden appointee, dissented.
The court set a speedy schedule for filing briefs.
Judge Murphy, who sits in Massachusetts, acknowledged in his ruling last month that the law allows for third-country removals but said the Constitution requires a fair chance for migrants to challenge the specific removal. He said the DHS policy short-changes that.
He pointed to one of the plaintiffs, a Guatemalan man known in court documents by the initials OCG. He faced sexual violence in Guatemala, came to the U.S. illegally and was ordered deported, but the immigration judge said he couldn’t be sent there because of the chance he’d be victimized again.
So the U.S. sent him to a third country, Mexico, where he was in fact raped — then Mexico deported him to Guatemala anyway.
And the government “lied about it,” the judge scolded.
The administration, in arguments to the First Circuit, said Judge Murphy lacked jurisdiction to intervene and was trampling on tricky Executive Branch decisions.
“Removing aliens to third countries often involves tight timing and sensitive diplomatic coordination. The district court’s tool for delay gives aliens the ability to thwart this delicate process,” Mary L. Larakers, a Justice Department lawyer, told the appeals court in a brief asking for the hold on Judge Murphy’s ruling.
Judge Murphy first tangled with the Trump administration over third-country deportations last year, saying they deserved more due process. He also issued an order to halt the deportation of eight migrants being sent to South Sudan rather than their home nations.
They ended up living in a shipping container at a U.S. military base in Africa’s Djibouti while the case developed.
The Supreme Court blocked both of those rulings.
Ms. Larakers, in her briefs to the First Circuit, said Judge Murphy failed to grapple with those previous Supreme Court actions.
