The judge asked the administration to clarify its position but declined to order the return of removable aliens from Ghana.

A well-known Trump antagonist — former antagonist? — has waded gingerly into the controversy over the president’s policy of deporting removable aliens to third countries (i.e., countries to which they have no ties of citizenship, residence, or travel).

While manifestly skeptical of the administration’s good faith, Judge Tanya Chutkan has declined for now to block the deportation to Ghana of five aliens from Gambia and Nigeria.

Judge Chutkan, of course, presided over the criminal indictment of then-candidate Trump on charges arising out of the 2020 stolen-election claims that led to the Capitol riot. She backed Biden-DOJ special counsel Jack Smith’s patently politicized effort to subject Trump to a lengthy criminal trial in the run-up to the 2024 election. The effort was thwarted by Trump’s ultimately successful appeal of Chutkan’s ruling that he lacked immunity from prosecution. By the time the Supreme Court reversed that ruling (and its affirmance by the D.C. Circuit), it was July 2024 — too late, as a practical matter, for Smith to overhaul the charges and push the case to trial. After Trump won the November election, Chutkan approved Smith’s dismissal of the charges (based on the Justice Department’s long-standing, constitutionally rooted guidance that a sitting president may not be prosecuted).

The aliens in question present an issue similar to that in the Kilmar Abrego Garcia controversy: They were in the United States illegally and are removable, but the immigration courts gave them “withholding of removal” protection from being deported to their native countries, finding that their fear-of-persecution claims were credible.

In its report, the New York Times highlights the case of a bisexual Gambian man who fears persecution if repatriated because “same-sex relationships are criminalized” to the extent of life imprisonment. Imagine my shock that the Times omitted mention of the fact that, with its overwhelming majority of Muslims, Gambia incorporates principles of Islamic law (sharia), under which homosexuality is severely punished.

As we’ve covered extensively, federal immigration law authorizes the executive branch to deport a removable alien to a third country if the alien cannot be sent to the country where he is a native, citizen, or prior resident because such countries either refuse to accept him or raise concerns about persecution. The administration is authorized to do this over the alien’s objection, as long as it is satisfied that the alien will not be tortured or persecuted in the third country.

Lawyers for the aliens claim that, for the Trump administration, Ghana is not so much a third country for resettlement as it is a way station. They contend that the administration sends aliens to Ghana (or other African countries with which it has made arrangements, such as South Sudan, Uganda, Rwanda, and Eswatini), aware that the third country may then transfer the alien to his native country — i.e., the aliens claim that the administration is accomplishing by indirection what the withholding-of-removal orders prohibit it to do directly.

For its part, the administration is not admitting to participation in such a scheme. It does, however, take the firm position that it has no control over what a third country does once the alien has been transferred there, and that the administration’s obligation is to be satisfied that the third country itself will not engage in torture or persecution.

For now at least, Chutkan is resistant to requests that she order the aliens to be returned. The Supreme Court has recently reaffirmed third-country removals under Congress’s statutes, and those same statutes essentially cut district judges (such as Chutkan) out of removal issues. (The process goes through the Justice Department’s immigration tribunals, followed by a narrow appeal to a Federal Circuit Court.) Consequently, while the Obama-appointed Chutkan is sympathetic to the aliens’ plight, she sees no sense in issuing a directive that would immediately be appealed by the Trump Justice Department and reversed by the higher courts.

Nevertheless, at a hearing on Saturday, Chutkan asked the government to provide a sworn statement detailing what efforts it has made (if any) to ensure that removal to a third country will not result in transfer to a country to which the alien has protection from deportation under U.S. law.

It is not clear to me whether Judge Chutkan had jurisdiction to make that request, or whether the administration will comply.