A federal judge in Boston on Wednesday found that the Trump administration’s policy of summarily deporting immigrants to so-called third countries — nations other than their countries of origin — is unlawful.
In an 81-page ruling, Judge Brian E. Murphy of the Federal District Court for the District of Massachusetts wrote that the government must first try to deport detained immigrants to their home countries — or to countries designated by an immigration judge when the immigrants were ordered removed from the country. After that process, immigration detainees must be given “meaningful notice” before being deported to another country, to allow them the opportunity to raise any fears they have that they might be persecuted or tortured there.
Judge Murphy, who was appointed to the bench by President Joseph R. Biden Jr., paused his own order for 15 days, which gives the government time to seek an appeal.
Still, the ruling amounts to a sweeping repudiation of one of the administration’s most aggressive deportation policies, one in which immigrants are flown to distant places to which they have no ties, including Eswatini, Rwanda and Ghana. Deportations to third countries have been a high-profile component of the administration’s broader effort to depict migrants as “barbaric” criminals who should be dealt with harshly — and to persuade migrants to self-deport and leave the country voluntarily.
Immigrants have also been sent to El Salvador and South Sudan, two countries with documented human rights violations. The administration has discussed sending them to Libya as well, The New York Times has reported.
“This is a forceful statement from the court that the administration has been violating the law,” said Trina Realmuto, a lawyer for the migrants in the case.
The Justice Department did not immediately respond to a request for comment.
The ruling does not apply to migrants whom the government is seeking to deport using “expedited removal” authorities, which allow the quick removal of migrants who cannot prove, upon arrest, that they have been in the United States for longer than two years.
The case has already reached the Supreme Court once, when eight deportees with criminal records were held for days on a U.S. military base in Djibouti after Judge Murphy ordered that they remain in U.S. custody. The Trump administration filed an emergency application to the Supreme Court, which then allowed the men to be handed over to the government of South Sudan. The Supreme Court cited an earlier ruling that paused an order from Judge Murphy that required the government to give detainees the opportunity to object to their removal and raise fears of persecution or torture.
The Supreme Court’s ruling in July amounted to temporary guidance while the case continued to be litigated. The justices have not yet offered a final judgment as to whether they believe the policy is legal. Any challenge to Judge Murphy’s new order is likely to go first to the U.S. Court of Appeals for the First Circuit, which has often ruled against Mr. Trump’s policies, but could then return to the Supreme Court for review.
Still, in internal guidance from July, the Homeland Security Department cited the Supreme Court’s emergency order and said that if the government had received credible “diplomatic assurances” from the government receiving them that deportees would not be persecuted or tortured, they were not required to offer detainees a chance to challenge their removal.
In his ruling, Judge Murphy struck that policy down. He recounted a series of incidents where the government “repeatedly violated, or attempted to violate” his order that detainees be given additional due process before being shipped off to third countries. One of those, the flight to Djibouti, took place after detainees were given less than 24 hours’ notice. He characterized that event as a “flagrant” and “willful” violation of his order that detainees have the chance to challenge their deportations.
In his ruling, Judge Murphy noted that during a hearing in the case, he had asked an administration lawyer if it was the government’s position that it was “fine” to send detained migrants to a third country “as long as the department doesn’t already know that there’s someone standing there waiting to shoot” them.
The administration lawyer responded that it was. “It is not fine,” Judge Murphy wrote on Wednesday, “nor is it legal.”
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