In a short, one-paragraph order, the Republican justices ruled on Monday evening that President Donald Trump may effectively nullify a federal law and an international treaty that is supposed to protect immigrants from torture. The Court’s order in Department of Homeland Security v. D.V.D. does not explain the GOP’s justices’ reasoning, although Justice Sonia Sotomayor responds to their silent decision in a 19-page dissent joined by her two Democratic colleagues.
The Court’s order is only temporary, and will permit Trump to send immigrants to countries where they may be tortured while the D.V.D. case is fully litigated. It is possible that one or more of the Court’s Republicans could reverse course at a later date. But it is hard to know what arguments might persuade them to do so because the justices in the majority did not explain why they decided this case the way they did.
Federal law requires that the United States shall not “expel, extradite, or otherwise effect the involuntary return of any person to a country in which there are substantial grounds for believing the person would be in danger of being subjected to torture.” This statute implements a treaty, known as the Convention Against Torture, which the United States ratified over three decades ago.
Trump’s lawyers, however, claim that they uncovered a loophole that permits the Trump administration to bypass these laws, at least with respect to some immigrants.
Typically, before a noncitizen may be removed from the United States, they are entitled to a hearing before an immigration judge. The immigration judge will inform the person facing deportation which countries they might be sent to, allowing the noncitizen to object to any countries where they fear they may be tortured. If the immigration judge determines that these objections are sufficiently serious to trigger the Convention Against Torture’s protections, the judge may still issue an order permitting the immigrant to be deported — but not to the nation or nations the immigrant raised objections about.
The D.V.D. case involves noncitizens who have already been through this process. In their case, an immigration judge determined that they may be deported, but not to specific countries. After the hearing process was complete, however, the Trump administration unexpectedly announced that it would deport the D.V.D. plaintiffs to other nations that were not previously under consideration.
That means that no immigration judge has determined whether these immigrants may be sent to those particular nations, and the immigrants have not been given a meaningful opportunity to object to the new countries where they are about to be deported. Using this loophole, the Trump administration seeks to deport them without a new hearing.
The Trump administration, moreover, appears to have intentionally selected countries where the noncitizens are likely to be unsafe. It wishes to deport many of these immigrants to South Sudan, for example, a country that was recently in a civil war, and where an uneasy peace appears to be collapsing. Others are slated for removal to Libya despite the fact that, according to Sotomayor’s dissent, they “would have landed in Tripoli in the midst of violence caused by opposition to their arrival.”
The Trump administration, in other words, appears to have created a deadly trap for immigrants who fear torture in their home nations. These noncitizens may object to being sent home under the Convention Against Torture, and an immigration judge may even rule in their favor. But the Trump administration may still send them somewhere else even more dangerous.
If you are interested in the specific legal arguments Trump’s lawyers raised to justify this trap, I summarized them here. But, again, it is not possible to determine which of these arguments persuaded a majority of the justices because those justices did not even bother to explain their decision.
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