Trump must honor due process in his deportation push, but judges don’t get to make up their own requirements either.
Trump must honor due process in his deportation push, but judges don’t get to make up their own requirements either.
I have warned a number of times (see, e.g., here, here, here, here, and here) that the edgy, and occasionally illegal, steps the Trump administration is taking in its push to deport illegal aliens have had the unintended consequence of inviting federal district judges back into an immigration-enforcement thicket from which Congress directed that they be excluded.
This is now a profound problem for the administration. Of the 677 district judgeships Congress has authorized throughout the country, two-thirds of them (about 455 judges) were appointed by Presidents Obama and Biden. Those appointees are almost uniformly activist progressives who have few if any qualms about rewriting removal statutes to make them more alien-friendly.
Unless the Supreme Court reaffirms the statutory boundaries, this is going to continue vexing the administration’s priorities of removing the swarms of illegal aliens the Biden border collapse ushered into the country and meaningfully reducing the aggregate population of approximately 20 million illegal aliens (a population larger than that of two-thirds of the world’s countries).
A case percolating up from Boston may present the Court with that opportunity.
The Trump administration has been in the process of deporting eight criminal aliens who hail from six different countries — South Sudan, Laos, Cuba, Mexico, Burma, and Vietnam. Collectively, the Department of Homeland Security says they have been convicted of murder, sexual assault, robbery, and other offenses. (It is not clear to me from the coverage if some or all of these are convictions by American courts.)
The aliens’ lawyers filed an emergency petition in Boston federal court to try to stop the deportation, claiming that some or all of the aliens were being sent to South Sudan, a country to which the State Department advises Americans against travel because of its bloody civil strife. The case was assigned to Judge Brian Murphy, a Biden appointee who was barely confirmed by the Senate after the 2024 election — when, among other Republicans, then-Senators JD Vance and Marco Rubio did not show up to vote against his appointment (Biden and Democrats thus prevailed, 47–45).
The controversy has been brewing since March. Lawyers from the National Immigration Litigation Alliance filed a class action complaining that the Trump administration, with insufficient due process, was deporting removable aliens to countries other than the ones they’ve designated as their preferences. Specifically, the aliens demand notice of the intended deportation destination that gives them enough time to demonstrate that they would face persecution in that country — a circumstance, they contend, that would prohibit their deportation under the Convention Against Torture (CAT). They filed the class action under the Administrative Procedure Act (APA), the Fifth Amendment’s due process clause, and certain provisions of immigration law.
The lawsuit seeks to achieve exactly what Congress has forbidden: litigation in the federal district courts that prevents the government from executing valid removal orders. As we’ll see momentarily, Congress has generally stripped district judges of jurisdiction over removal and has barred lawsuits of the kind the aliens have brought.
There is a procedure for determining to which country an alien can properly be deported. As we’ve previously covered, removal proceedings have a three-stage process: hearing before a DOJ immigration judge, appeal to a DOJ Board of Immigration Appeals (BIA), and a single appeal to a circuit court of appeals (not the district court), which is generally limited to purely legal claims and must accept the fact-finding of the DOJ tribunals. This is because judgments about which non-Americans may enter or remain in the United States are quintessentially political, not legal, implicating foreign policy and national security concerns for which the judiciary — the nonpolitical branch — has neither constitutional responsibility nor institutional competence.
The participation of district judges has been generally foreclosed, and review by appellate courts is sharply limited because Congress has plenary authority and has vested sweeping enforcement power in the executive branch. The aliens are entitled to due process, but only to the limited extent it has been prescribed by statute or determined by the Supreme Court to be required.
Moreover, when a removable alien has a fear of persecution if he were to be sent to a particular country, he can raise that in the removal hearing process. (We’ve seen that this was done by Kilmar Abrego Garcia, who in 2019 convinced a DOJ immigration judge to prohibit his removal to El Salvador.) A removable alien should not be permitted to frustrate the government’s lawful deportation by waiting until he learns to which country he is being deported to raise CAT claims.
Furthermore, CAT is not a self-executing treaty; individuals may make CAT claims only to the extent Congress has permitted them. Congress has implemented CAT by regulations and deprived the district courts of jurisdiction to review these regulations. Instead, CAT claims should be raised in the DOJ removal proceedings and can be reviewed only as part of a final order of removal by the circuit court of appeals. What’s more, the Supreme Court ruled in Manuf v. Geren (2008) — in a unanimous opinion written by Chief Justice John Roberts — that the determination of whether a person is likely to be tortured in a foreign country is left to the political branches, not the judiciary.
Despite all of this, as the New York Times reports, Judge Murphy issued an order last month that “directed the Trump administration not to deport immigrants to countries other than their own without first giving them 15 days’ notice to raise concerns that they might face danger there.” Murphy has no legal authority to issue such a directive. The Trump administration sought an emergency stay, but the First Circuit Court of Appeals refused to stay it while the appeal proceeds. It is not clear to me whether the administration has asked the Supreme Court to impose a stay.
This week’s fireworks began on Tuesday, initially focusing on two of the aliens, nationals of Vietnam and Burma. The Trump administration would not reveal to where the aliens were removed. Lawyers from the Trump Justice and Homeland Security Departments told Judge Murphy that the destination information was classified. They either would not or could not explain why it was classified, and evidently did not know if an aircraft then in flight was taking the aliens to South Sudan or someplace else.
Murphy said he would not order the plane to be turned around (which was certainly big of him) but purported to order that the American officials transporting the aliens to keep them in the officials’ custody so they could be returned to the United States. The judge added that he suspected the government was in violation of the above-described directive.
On Wednesday, when court proceedings continued, it emerged that there were eight aliens in all (as described above). Much of the hearing was under seal, and it is still not clear who, if anyone, ended up in South Sudan. (DHS spokeswoman Tricia McLaughlin denied that South Sudan was the final destination, but wouldn’t say what country was.) It appears, instead, that the aliens were flown to a final destination of Djibouti in eastern Africa, where U.S. military personnel are stationed.
It is likely that they are still in American custody. Judge Murphy is exploring whether he could order that the aliens be held so they’d have time to consider making CAT claims, and whether he could direct that they be returned to the United States for that purpose. In the meantime, Murphy is demanding disclosure to the court of the names of all officials involved in the deportation operation with an eye toward notifying them that they may be held in contempt of court.
This is absurd.
I’ve been as adamant as any analyst that the Trump administration must honor due process requirements. But district judges are not permitted to manufacture due process mandates on the fly because Congress’s laws and the administration’s implementation of them offend a judge’s subjective sense of fairness. And when Congress has deprived a judge of jurisdiction only to have the judge defiantly take action, it is the judge, not the administration, who is acting lawlessly.
Congress has prescribed exacting laws for carrying out removals. A principal purpose of them is to strip district judges of jurisdiction.
It basically works this way: An alien is permitted to designate a country to which the alien wishes to be removed. The alien is generally deported there, unless that country declines to accept the alien or there is some legal prohibition — such as the CAT — on removing the alien there. In that event, the government may remove the alien to one of the following, in order of statutory preference: country of citizenship or nationality, country of birth, country of last residence, country that had jurisdiction over the alien’s last residence, or any country willing to accept the alien.
The obvious implication of this is that the country to which a removable alien is deported will often not be a country the alien prefers. It may also be a dangerous country with a dysfunctional government. The main limitation is the CAT: Under its terms, the government may not deport someone to a place where the person is likely to face torture or inhumane treatment. But that is reserved for real persecution; an alien doesn’t have a CAT claim against deportation to a country that is merely unpleasant. And again, if the executive branch determines that a person is unlikely to face torture or inhumane treatment, that determination is binding on the court. (Obviously, a State Department advisory that Americans avoid traveling to a country does not make that country ineligible on CAT grounds to accept deported aliens — especially its own nationals.)
The United States government is not a travel agent, and people who violate our laws by illegally entering our country don’t have a veto over where the government deports them. In that regard, our laws are extraordinarily solicitous, but they are nevertheless geared toward effectuating removal, not thwarting it.
Section 1252 of the immigration laws generally strips the courts of jurisdiction, including habeas corpus jurisdiction, to challenge the executive branch’s discretionary decision to remove an alien to a specific country. There are some exceptions. An alien raising a constitutional or purely legal claim (i.e., not a factual dispute but a question of interpretation of a law) may seek review, but only in a circuit court of appeals, not in the district court. Similarly, CAT claims may be reviewed by the circuit court of appeals, not the district court. If an alleged alien claims he is an American citizen, the circuit court of appeals may decide that claim or, if fact-finding is needed, refer it to the district court where the alleged alien resides. And if an alien wants to challenge the validity of the removal system, the statute permits a petition challenging the legality of regulations, but only in the district court in Washington, D.C. — not any district court in the country.
Manifestly, it was Congress’s purpose — in the area of immigration enforcement as to which Congress has plenary authority — to enable the executive branch to carry out removals with minimal judicial intrusion. Congress provided some narrow pathways to judicial review, but it cut the district courts out of the equation, except for a sliver of situations not relevant to the removal issues raised in Boston.
I’ve noted here many times that the Trump administration must follow the due process rules enacted by Congress. In addition, to the extent that relevant due process rules have been interpreted by the Supreme Court — as they have, for example, with respect to the 1798 Alien Enemy Act, which President Trump has invoked in connection with Venezuelan aliens alleged to be Tren de Aragua members — the administration must heed those decisions.
That said, courts are not at liberty to decree their own due process requirements simply because they disagree with Trump administration policy or sympathize with aliens.
Nothing in the immigration laws gives a district judge in Boston authority to impose a rule that the executive branch must delay removals for 15 days to give an alien the opportunity to object to being sent to a country other than his own. To the contrary, Congress has very clearly given the government authority to deport aliens to countries other than their own, and has given such removable aliens very limited avenues for challenging those determinations. None of those avenues lead to Judge Murphy’s courtroom.
Since the First Circuit appears unwilling to rein in Judge Murphy, the Supreme Court should reverse his order as swiftly as the Justice Department can get the case there.