The Supreme Court will hear arguments in December on third-country removals, a contested federal practice that allows deportations to nations not listed in individuals’ removal orders. In an unsigned order Tuesday, the justices allowed the government to continue using third-country removals while the case proceeds, with a decision expected next year.
The court’s three Democratic appointees, Justices Sonia Sotomayor, Elena Kagan, and Ketanji Brown Jackson, indicated they would have denied the government’s request to keep the policy in effect during the appeal.
What are third-country removals
The dispute stems from a January 2025 executive order by President Donald Trump directing the Department of Homeland Security to take all appropriate actions to remove noncitizens with final deportation orders. DHS later issued internal guidance instructing U.S. Immigration and Customs Enforcement to evaluate whether people who could face torture if returned to their home countries might instead be removed to another country.
A subsequent DHS memo outlined procedures required before removing someone to a country not specified in their order and without assurances against torture. The guidance required DHS to notify individuals of planned removal, allow them to raise fears of torture, and, if necessary, screen those claims to assess the likelihood of torture.
Lower court rulings and rapid Supreme Court interventions
Four immigrants with removal orders sued in federal court in Massachusetts in March, saying they feared deportation to countries not identified in their orders. U.S. District Judge Brian Murphy blocked the government from carrying out third-country removals without first providing written notice of the intended destination and a meaningful chance to challenge that transfer.
He also said DHS should apply a “reasonable fear” standard, not “more likely than not,” when evaluating torture claims, and give at least 15 days to seek to reopen immigration cases if that showing is not met.
U.S. Solicitor General D. John Sauer asked the Supreme Court in May 2025 to pause Murphy’s order. The justices granted that request on June 23 over a dissent from Justice Sotomayor, joined by Justices Jackson and Kagan.
One day later, Sauer returned seeking clarification that the ruling allowed the administration to deport eight men held at a U.S. military base in Djibouti after Murphy found their attempted removal to South Sudan violated his order.
On July 3, the court said its June 23 order stayed Murphy’s order in full, including the South Sudan-related ruling. Justice Kagan concurred, writing that although she disagreed with staying Murphy’s order initially, a district court cannot compel compliance with an order the Supreme Court has stayed. Justice Sotomayor dissented, joined by Justice Jackson.
Appeals court largely affirms district court
In February of this year, Judge Murphy entered final judgment for the plaintiffs and struck down the third-country removal policy, holding that before any deportation to a third country, immigrants are entitled to meaningful notice and an opportunity to contest on grounds of a reasonable fear of persecution or torture.
On Sept. 18, the U.S. Court of Appeals for the 1st Circuit largely upheld Murphy’s decision. Five days later, the court lifted an earlier stay that had kept Murphy’s ruling on hold during the government’s appeal.
Government and plaintiffs present competing harms
Sauer then returned to the Supreme Court, arguing that Murphy’s order deprives the government of an essential tool to remove certain noncitizens, including serious criminal offenders. He said reinstating the order caused logistical problems for ongoing removals, such as canceled flights, added expenses, potential diplomatic issues, and the inability to remove dangerous individuals.
The immigrants responded that Murphy’s ruling does not bar third-country removals, but requires the government to conduct them lawfully with proper notice and a chance to be heard. They warned of significant harm from sending thousands of longtime U.S. residents, many without criminal records, to countries where they could face persecution or torture.
They added that any government harms are not irreparable and could be avoided by providing timely notice and hearings, noting the order does not mandate release from detention, prohibit removals, or undo existing arrangements.
What the Supreme Court will decide next on third-country removals
In its latest order, the Supreme Court stayed Murphy’s ruling and set the case for December argument. The justices directed the parties to brief several questions, including the legality of DHS’s guidance, whether the district court had authority to consider the claims and set aside the guidance, and, unusually, any other questions the government deems relevant to the proper resolution of the case.
Justices Sotomayor, Kagan, and Jackson said they would have denied the stay but did not elaborate.
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