The Supreme Court will hear oral arguments in December in a challenge by immigrants to the government’s practice of deporting them to countries that are not identified in their removal orders – a procedure known as “third-country removals.” In a brief, unsigned order on Tuesday afternoon, the justices cleared the way for the government to continue such “third-country removals” until they can consider, and rule on, the merits of the dispute – a decision that will likely come sometime next year.
The court’s three Democratic appointees – Justices Sonia Sotomayor, Elena Kagan, and Ketanji Brown Jackson – indicated that they would have denied the Trump administration’s request (and, as a result, kept the third-country removals on hold).
Tuesday’s order was the most recent chapter in a whirlwind proceeding at the Supreme Court – and the third time that the Trump administration had asked the justices to step in to pause a ruling against it by a federal judge in Massachusetts. The dispute has its roots in the executive order that President Donald Trump signed in January 2025, in which he instructed the Department of Homeland Security to take “all appropriate actions” to remove noncitizens who were in the United States despite having orders to deport them.
In the wake of that order, DHS issued internal guidance that directed U.S. Immigration and Customs Enforcement to determine whether undocumented immigrants who had received deportation orders but had not yet been removed because of the possibility that they would be tortured if they were returned to their home countries could instead be sent somewhere else. One month later, DHS issued more guidance in which it indicated that before immigrants can be sent to a country that is not specifically identified in their removal orders and that has not provided the United States with assurances that the immigrants will not face torture, DHS must follow a series of procedures: It must first notify the immigrants of the planned removal, provide them with an opportunity to voice any fears that they will face torture, and – if needed – screen them to determine the likelihood that they will indeed be tortured.
In March, four immigrants with removal orders went to federal court in Massachusetts, where they contended that they feared being deported to a country that was not identified in their orders.
U.S. District Judge Brian Murphy issued an order that barred the government from deporting the plaintiffs and others like them to third countries without first giving them written notice of the third country to which they might be removed, as well as a “meaningful opportunity” to challenge that removal. Moreover, Murphy added, DHS should also determine whether the immigrants’ fears of torture were “reasonable,” rather than whether it is “more likely than not” that they will be tortured. If immigrants cannot make that showing, Murphy added, DHS must give them at least 15 days to seek to reopen their immigration proceedings.
U.S. Solicitor General D. John Sauer went to the Supreme Court for the first time in May 2025, asking the justices to pause Murphy’s order. Over a dissent by Justice Sonia Sotomayor that was joined by Justices Ketanji Brown Jackson and Elena Kagan, the court on June 23 granted that request.
Sauer returned to the court for the second time one day later, asking the justices to “clarify[]” that, in the wake of their first order, the Trump administration could deport eight men it was holding on a U.S. military base in Djibouti after Murphy had ruled that efforts to remove them to South Sudan violated his order.
On July 3, the court issued a brief opinion in which it indicated that its June 23 order paused Murphy’s order “in full” – and also applied to his later order regarding the South Sudan deportations. Kagan wrote a brief concurring opinion, in which she indicated that although she disagreed with the court’s initial decision to pause Murphy’s order, she did “not see how a district court can compel compliance with an order that this Court has stayed.” Sotomayor again dissented, joined by Jackson.
In February of this year, Murphy issued a final judgment in the immigrants’ favor and struck down the third-country removal policy. He ruled (among other things) that before immigrants can be deported to a third country, they have the right to “meaningful notice” and a “meaningful opportunity” to contest deportation to that third country on the ground that they reasonably fear persecution or torture there.
On Sept. 18, the U.S. Court of Appeals for the 1st Circuit largely upheld Murphy’s ruling, and five days later, it dissolved a March 16, 2026, order that put Murphy’s ruling on hold while the government appealed.
That prompted Sauer to go to the Supreme Court for the third time, asking the justices to block Murphy’s order again. Sauer argued that Murphy’s order robbed the government of “an essential tool to remove certain aliens, including some of the worst criminal aliens,” and asserted that it “rests on the same fundamentally flawed legal premises as the previous rulings.” Moreover, he contended, the reinstatement of Murphy’s order has “created substantial logistical problems with ongoing removal operations—including the cancellation of flights—and led to added expense, potential diplomatic issues, and the inability to remove dangerous criminals.”
The immigrants countered that Murphy’s decision “does not prevent third-country removals; rather, it simply requires” the Trump administration “to do so lawfully.” They told the justices that the Trump administration’s arguments “ignore the significant harm resulting from deporting thousands of longtime U.S. residents, many with no criminal history, to third countries without regard to the persecution or torture they face there.” But if Murphy’s order is allowed to remain in place, they said, any injuries that the Trump administration will suffer “are neither irreparable nor caused by” his decision because the order does not require the Trump administration to release immigrants from detention, “prohibit third-country removals, or undo existing arrangements.” The government, they said, “can avoid any resulting delays by timely providing the notice and opportunity to be heard that the law requires.”
In a brief order released on Tuesday afternoon, the court put Murphy’s order on hold and set the case for oral argument sometime in early December. They instructed the litigants to brief several different questions, including the legality of the DHS guidance, whether Murphy had the power to consider the immigrants’ claims and to throw out the DHS guidance, and – in an unusual move – any “other questions that the Government determines are appropriate for the proper disposition of the case.”
Sotomayor, Kagan, and Jackson indicated that they would have denied the government’s request to pause Murphy’s order, but they did not provide any explanation for that statement.
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[ H/T SCOTUSblog ]
