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By Billal Rahman
Immigration Reporter
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The Supreme Court is preparing to decide a major challenge to the Trump administration’s use of “third-country” deportations, a practice that allows the government to remove some migrants to countries other than their own.
60 Minutes reported that migrants deported by the United States to Ghana were subsequently transferred to countries to which U.S. immigration judges had previously ruled they should not be returned.
The program covered Moussa Diawara, a Malian national who had lived in the United States for approximately 25 years and had been granted withholding of removal to Mali. Instead, U.S. authorities deported him to Ghana, where he said officials placed him on a flight to Mali within five days.
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The Department of Homeland Security (DHS) wrote in a post on X that Ghana had provided the United States with “diplomatic assurances for his safety” and questioned the credibility of Diawara’s fears of persecution. James Percival, the agency's top lawyer, said third-country removals can be used when a migrant’s home country refuses to accept them or when an immigration judge has barred their return to that country.
The wider case comes before the Supreme Court as the justices consider the legal limits of the administration’s broader third-country removal policy. The high court has allowed the policy to remain in effect while the litigation proceeds, but it has not ruled that the policy itself is lawful.
The case, Department of Homeland Security v. D.V.D., concerns people with final removal orders who face deportation to countries that were neither designated in their removal orders nor previously identified in writing as potential destinations.
Federal immigration law sets out a sequence for where people with final removal orders may be sent, including, depending on the circumstances, a country they designate, a country of citizenship or nationality, or a country where they previously lived. If those options are unavailable, the law provides additional destinations, including a country whose government will accept the person. Separate federal protections prohibit removal when the applicable legal standard for persecution or torture has been met.
Under DHS guidance issued in March 2025, officials first determine whether the proposed receiving country has provided assurances that people removed from the United States will not be persecuted or tortured. If the State Department considers those assurances credible, DHS guidance permits removal without further procedures.
Without such credible assurances, DHS informs the migrant of the destination. Officers do not affirmatively ask whether the person is afraid of being sent there. A migrant who independently expresses fear is referred to U.S. Citizenship and Immigration Services for screening.
What the Appeals Court Said
The policy prompted a class-action lawsuit that ultimately reached the 1st U.S. Circuit Court of Appeals.
In September, the appeals court largely upheld a lower-court judgment against DHS. It concluded that existing statutes and regulations require effective notice and a meaningful opportunity to raise fear-based claims before removal to a third country.
“An individual’s right to contest removal to a country based on a fear of persecution in that country means little if one does not receive prior notice of the intended removal destination and a meaningful opportunity to contest that destination,” the court said.
The appeals court reached a similar conclusion about torture claims, saying a person’s right to avoid removal to a country where they are likely to be tortured “means little” without prior notice and a meaningful opportunity to assert that fear.
“The statute and regulations prescribe hearing-related procedures for fear-of-persecution claims with no exception for third-country removals,” the court wrote. “We reject DHS’s efforts to create such an exception from whole cloth.”
The appeals court did not decide whether the policy violated the Fifth Amendment’s Due Process Clause. It upheld parts of the judgment on statutory and regulatory grounds but overturned two rulings on the order in which DHS must consider destination countries, finding that the plaintiffs lacked standing to challenge that issue.
The court also questioned the use of diplomatic assurances, noting that the record did not identify which countries, if any, had provided them. It expressed doubts that a country could guarantee protection from persecution or torture for every deportee, contrasting such broad promises with federal rules that provide for individual assurances in some cases under the Convention Against Torture.
DHS has disputed the lower courts’ interpretation. The government argues that immigration law gives the executive branch discretion over third-country removals and does not establish the additional procedures the lower courts imposed. It also argues that federal law bars the claims and restricts lower courts’ ability to issue classwide relief interfering with the government’s execution of removal law.
For countries that have provided adequate assurances, the government argues that no additional constitutional process is required. For countries without those assurances, it says its notice and fear-screening procedures satisfy due-process requirements. DHS has also argued that court-imposed restrictions create operational burdens and threaten diplomatic arrangements necessary to persuade other countries to accept deportees.
What The Supreme Court Said
The Supreme Court first intervened in the case on June 23, 2025, when it stayed a preliminary injunction issued by U.S. District Judge Brian Murphy in Massachusetts. That injunction required DHS to provide migrants with written notice and a meaningful opportunity to raise claims that they could face torture before removing them to an undesignated third country.
The court's June order did not explain granting the stay. Justice Sonia Sotomayor, joined by Justices Kagan and Ketanji Brown Jackson, dissented. The Supreme Court has a 6-3 conservative majority. Those same three justices also said they would have denied the government's subsequent request to stay the final judgment in September 2026.
“In matters of life and death, it is best to proceed with caution,” Sotomayor wrote on June 23. “In this case, the Government took the opposite approach.”
“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.”
Sotomayor called the court’s intervention “so gross an abuse of the Court’s equitable discretion.”
Sotomayor said the dispute followed a series of removals and attempted removals to countries where migrants allegedly faced danger. “It wrongfully deported one plaintiff to Guatemala, even though an Immigration Judge found he was likely to face torture there,” she wrote. “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.” She added that a district court had “only narrowly prevented a third set of unlawful removals to Libya.”
The court again considered the dispute days later. Justice Kagan wrote separately on July 3 that although she agreed the district court could no longer enforce an injunction the Supreme Court had stayed, she continued to believe the justices should not have intervened in the first place.
“I continue to believe that this Court should not have stayed the District Court's April 18 order enjoining the Government from deporting non-citizens to third countries without notice or a meaningful opportunity to be heard,” Kagan wrote.
Sotomayor, this time joined by Jackson, dissented again. She accused the majority of allowing the administration to circumvent normal judicial procedures and concluded: “Today's order clarifies only one thing: Other litigants must follow the rules, but the administration has the Supreme Court on speed dial.”
Sotomayor pointed to the attempted removal of eight migrants to South Sudan, arguing that they risked being sent there without an opportunity to raise claims that they could face torture or death. “The United States may not deport noncitizens to a country where they are likely to be tortured or killed,” she wrote in July, in a dissent joined by Justice Ketanji Brown Jackson. “International and domestic law guarantee that basic human right.” She said the government sought to send the eight to South Sudan and turn them over to local authorities “without regard for the likelihood that they will face torture or death.”
The attempted removals involved a country the U.S. government itself warns Americans not to visit. The State Department currently classifies South Sudan at Level 4: Do Not Travel, citing unrest, violent crime, kidnapping, landmines and health risks. Its advisory says armed conflict is ongoing, violent crime is common, and the U.S. government has limited ability to provide emergency consular services there.
In an unsigned July 3 opinion granting the government's request for clarification, the Supreme Court said the lower court could not use a separate remedial order to enforce the injunction after the high court had stayed it. “The May 21 remedial order cannot now be used to enforce an injunction that our stay rendered unenforceable,” the court said.
After additional proceedings, the district court entered a final judgment in February 2026 that set aside the DHS guidance. The 1st U.S. Circuit Court of Appeals largely upheld that judgment on September 18, although it rejected a separate claim concerning the statutory sequence DHS must follow when choosing a removal destination.
On September 29, the Supreme Court again intervened, putting the lower court’s final judgment on hold and agreeing to hear the case. The September order did not contain a written dissent, although it noted that Sotomayor, Kagan, and Jackson would have denied the government’s request for a stay.
What Happens Next?
The justices are set to hear arguments on December 9. They will consider whether the district court had jurisdiction, whether it could grant classwide declaratory relief and vacate the DHS guidance, and whether the policy violates federal immigration law, due process protections, or U.S. law implementing the Convention Against Torture.
Newsweek’s reporters and editors used Martyn, our AI assistant, to produce this story. Learn more about Martyn here.
Contact Newsweek editors on this story: Matthew Cannon, Gray R. Thomas
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