Supreme Court Allows Trump Administration’s Deportation Policy to Continue
This week, the Supreme Court granted a temporary approval for the Trump administration to persist with its third-country deportation policy while the Department of Homeland Security (DHS) faces scrutiny about its immigration practices, which officials argue were largely neglected by previous administrations.
DHS has increasingly employed “third-country” removals when individuals cannot be returned to their home nations, or those countries decline to accept them. James Percival, the agency’s top lawyer, describes this approach as part of a broader effort by the Trump administration to utilize immigration authorities that have always been there, but not often utilized.
Percival commented, “Imagine going to a country and saying, ‘We’ve got a guy, he’s not yours, and he’s committed a crime. Can he stay with you?'” This, of course, isn’t a simple request to make. It calls for considerable diplomatic effort. For instance, “Norway isn’t going to accept a criminal from Cuba,” he noted.
Deportation Strategy in the Spotlight
On Tuesday, the justices intervened to pause a lower court ruling that was limiting DHS’s policy, allowing the administration to maintain its guidance while the Court reviews the case. Oral arguments are set for December, focusing on whether the DHS’s procedures align with federal immigration law and due process considerations, including protections against torture.
Interestingly, the case does not contest DHS’s authority to carry out third-country removals. Instead, it questions the procedural steps that need to be taken beforehand. According to Percival, “It’s expressly stated in the statute that we can do this.” He suggests that many existing immigration laws harbor valuable tools that haven’t been leveraged sufficiently in the past.
This third-country provision originated in the Illegal Immigration Reform and Immigrant Responsibility Act (IIRIRA) of 1996, a significant immigration reform law that was enacted under President Bill Clinton.
Percival drew an analogy likening government authorities to fine china—delicate and hesitated to be used for fear of breaking. “Many in government handle their authority like it’s too precious to touch. If you own fine china and never use it, you might regret it when it’s too late,” he remarked.
Controversy and Human Rights Concerns
While Percival’s strategies aim to maximize current authority, they haven’t been met without criticism. Human rights advocates have raised concerns, especially in light of allegations that deportees faced violence from authorities in Equatorial Guinea, a small nation under the long-term rule of President Teodoro Obiang.
This administration had reportedly provided $7.5 million to Equatorial Guinea to facilitate such deportations. Percival emphasized the dilemma, stating, “I’d prefer living in the U.S. over Equatorial Guinea too, but I’m a citizen, and I’ve not committed any crimes.”
Moreover, the detention aspect of deportation reflects experiences from a Supreme Court ruling in 2001 regarding a stateless individual whose deportation was ordered due to a criminal record but could not be returned to any country, leading to a complex legal predicament.
Percival is also addressing these challenges publicly through his “Daily Deportee” series, detailing cases of deportees whose native countries won’t accept them. He highlighted that the choices for high-risk individuals are stark: either find a third country or let them re-integrate into American society.
One case he mentioned involved a Burmese national, Kyaw Mya, who cannot be sent back to his homeland. Another case involves a migrant who, despite being convicted of a violent crime, was not deported during the Bush administration and allegedly re-offended after release.
As the DHS explores underutilized options from IIRIRA and other laws, Percival reiterated ongoing discussions about possible incentives for illegal immigrants considering voluntary departure, stating, “It’s not too late to take the $3,000 and a flight home.”
