A case with a weird title, D.H.S. v. D.V.D, merits a weird Supreme Court decision. In a ruling this week on its “shadow docket,” the Supreme Court summarily stayed a lower court injunction before the appeal was even heard and gave Trump permission to deport migrants to places other than their country of origin—countries where they had never set foot, where they might not speak the language, and even to countries where they might be tortured. It is hard to discern what was decided. On the much-criticized shadow docket, the judgment is unsigned, there is no reasoning, and no precedential value.
Inhumane, you might say, we don’t do that in America. Well, we do. To quote Dickens, “ ‘If the law supposes that,’ said Mr. Bumble, ‘the law is an ass—a idiot.’”
The administration has claimed this power as part of its campaign to deter immigrants from coming to America to join our nation of immigrants. Because of the vagaries of the “shadow docket,” we do not know whether five or six Republican-appointed justices voted for the ruling. Precisely who was in the majority is as anonymous as the masked faces of ICE agents grabbing a suspected migrant off the streets. The majority did not explain its reasoning; the three liberal justices—Ketanji Brown Jackson, Elena Kagan, and Sonia Sotomayor—dissented sharply, and their names accompany the ruling.
Georgetown Law Professor Steve Vladeck told CNN. “[T]oday’s ruling allows the government to remove those individuals and others to any country that will take them, without providing any additional process beyond an initial removal hearing, and without regard to the treatment they may face in those countries.”
The case included deportations of eight men, now temporarily held in a U.S. military base in Djibouti, to war-ravaged South Sudan, where the State Department advises against all travel “due to crime, kidnapping, and armed conflict.” The court stripped the migrants of any opportunity to present claims to an immigration judge that, if deported to these third countries, they would be at risk of serious harm or death.
The majority in this bizarre proceeding ignored that the government had twice disobeyed orders of the lower federal court—in short, they gave Trump, as Justice Benjamin Cardozo put it, “a healing benediction.” The ruling fights a venerable precept of the law of equity that no one can obtain relief from a court of equity who comes to equity with unclean hands. In a 19-page opinion, Justice Sonya Sotomayor made the point in a sizzling dissent:
It is best to proceed with caution in matters of life and death. In this case, the Government took the opposite approach. It wrongfully deported one plaintiff to Guatemala, even though an Immigration Judge found he was likely to face torture there. Then, in clear violation of a court order, it deported six more to South Sudan, a nation the State Department considers too unsafe for all but its most critical personnel. An attentive District Court’s timely intervention only narrowly prevented a third set of unlawful removals to Libya. Rather than allowing our lower court colleagues to manage this high-stakes litigation with the care and attention it plainly requires, this Court now intervenes to grant the Government emergency relief from an order it has repeatedly defied.
The case was about the government’s ability to accomplish what is known as a “third country removal,” meaning a removal to any “country with a government that will accept the alien.”
Migrants are already entitled to claim that they face mistreatment in the country the government has designated for removal. The question is whether they’re entitled to more process, raising the possibility of abuse in other countries that the government identifies after the removal proceeding has concluded.
District courts are in the hearing business, and the Boston judge who had the case is no exception. His answer, crafted in careful legalese, was, “a hearing, of course”. It was a modest ruling, a no-brainer. It barred the government from removing individuals to third countries without some process. It was why Congress wisely limited third-country removals, recognizing the hardships for the affected noncitizens. Such removals may be accomplished only after the Government exhausts every alternative noted in the statute and determines they are all “impracticable, inadvisable, or impossible.”
There are other reasons why third-country removals may be prohibited. The United States is party to the Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, which prohibits returning any person “to another State where there are substantial grounds for believing that he would be in danger of being subjected to torture.”
In 1998, Congress passed the Foreign Affairs Reform and Restructuring Act to implement the provisions of the Convention. The Act provides that “[i]t shall be the policy of the United States not to 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…”
In violation of a temporary restraining order entered by the district court, the government transported four migrants to Guantanamo, and hied them thence to El Salvador, where the prison system is anything but a model of humanitarian treatment. Then, in violation of the preliminary injunction entered by the district court, it removed six class members to South Sudan with less than 16 hours’ notice and no opportunity to be heard.” As Sotomayor elaborated, by ignoring the government’s “unclean hands,” the majority not only closed its eyes to a time-honored principle of equitable relief but affirmatively threatened the rule of law. She put it into a nutshell: “This is not the first time the Court closes its eyes to noncompliance, nor, I fear, will it be the last. Yet each time this Court rewards noncompliance with discretionary relief, it further erodes respect for courts and for the rule of law.”
But what is astounding is that at least five of the very justices who just last April were quick to rule that alleged enemy aliens were entitled to notice and hearing before removal unabashedly switched positions and held that other migrants could be removed to third countries despite the fact they had plausible arguments they would be tortured there. According to the Supreme Court majority, due process is apparently satisfied because the migrants, after what is called a “reasonable fear” hearing in the trade, previously lost their argument that they would be mistreated in some other country, but that other country wasn’t South Sudan.
Meanwhile, the district judge pounced on the fact that the Supreme Court stayed the wrong order. The majority only dealt with his April 18 injunction, not his May 21 remedial order requiring a hearing, which remains in effect. It was an “aha moment.” The May order could not be before the Supremes because the government didn’t take an appeal from that order, nor did it seek a stay.
The government was in such a swivet over the bad lawyering that its White House mass deportation czar, Stephen Miller, accused the district judge of “refusing to obey” the Supreme Court’s order. It’s all getting very ugly.
We have only an interim ruling on third country removal. The case will return to the court when there is an appeal on the merits. But meanwhile, renditions to dangerous countries are likely to continue, and if the class of migrants eventually prevails on the merits, it will be too late for those who may be sent to South Sudan or worse. For the time being, the eight migrants will reside in Djibouti.
It’s only a case about a handful of migrants in the country illegally. It shouldn’t raise too many hackles. But, as my venerated mentor Judge Edward Weinfeld used to say, “every case is important.” And an anxious nation, watching our country on the slippery slope to autocracy, continues to lose hope that our help can come from the courts.
