Legal experts publicly rebuked Attorney General Todd Blanche after he complained that a federal appeals court blocked third-country deportations “in the dark of night.”
Blanche lodged the objection in a Thursday post on X, the morning after the 1st U.S. Circuit Court of Appeals issued a late-night order putting its Sept. 18 ruling into effect.
The ruling requires the Department of Homeland Security to warn migrants before sending them to a country other than their own and to let them argue they would be persecuted or tortured there, according to the court’s opinion.
“Without even allowing the government a chance to respond, and in the dark of night, a federal appeals court blocked us from conducting all third-country removals of illegal aliens, an entirely legal and invaluable tool to stem the tide of illegal immigration,” Blanche wrote. “We will immediately seek relief from the Supreme Court, which previously granted a stay in this very same case.”
The Supreme Court stay that Blanche cited was issued in 2025 and covered an earlier, temporary order in the case, according to the opinion.
A lower court later replaced that order with a final ruling, which the appeals court upheld except for a requirement that officials first try to send migrants to countries they chose or where they are citizens, the opinion shows.
“Dark of night? What does that have to do with anything? Of course, the administration can appeal, but there’s nothing secret or sinister about a judge deciding an urgent case urgently and posting the ruling on the public docket,” former U.S. Attorney Barb McQuade wrote on X.
“Sounds like a judge working diligently for justice. But this AG would rather undermine public confidence in the judiciary,” she added.
“This is FALSE. The government has NOT been barred from doing third-country removals,” wrote Aaron Reichlin-Melnick, a senior fellow at the American Immigration Council. “ICE has been barred from doing so 1) without telling people before they’re on the plane, and 2) without letting them raise fears of persecution/torture.”
Solicitor General D. John Sauer made a similar complaint Thursday in an emergency request to the Supreme Court, writing that the appeals court acted three hours after lawyers for migrants in the case filed their motion and without letting the government respond.
The lawyers sought the order Wednesday night after hearing that a deportation flight would leave the next day from Alexandria, Louisiana, for Burundi, Rwanda and the Central African Republic, the Associated Press reported.
The administration said the order forced it to cancel a flight carrying 70 people to three countries, which it did not name, the AP reported.
“To be clear, the 1st Cir struck down your policy after full adversary briefing on 9/18. Rather than seek clarification on whether it took effect immediately, you tried to fly still more people to 3d countries so it would be too late for them. On 9/23 it found out & stopped you,” Lawfare senior editor Roger Parloff wrote Friday.
“Shipping human beings off in the dark of night to brutal dictatorships to which they have no connection while giving them no chance to respond is a bit worse than a court of law telling you ‘in the dark of night’ (or at any hour) that what you’re doing is illegal,” wrote former Rep. Tom Malinowski, who served as assistant secretary of state for democracy, human rights and labor.
To win a pause from the justices, the government must show it would suffer harm that cannot be undone. Government lawyers argued the ruling would cause cascading delays and could force officials to rework deals with foreign countries, the AP reported.
“This guy is such a tool,” Philadelphia immigration attorney Matthew Archambeault fired back at Blanche on X. “There is no irreparable harm to the US. These people were not ordered released, just not sent to a third country. If the courts rule in the DOJ’s favor, they can continue on their inhumane treatment of these humans.”
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