


Over the past couple of weeks, I’ve extensively detailed (see here and here) the controversy over the Trump administration’s effort to deport eight criminal aliens subject to removal to a “third country.” In this context, “third country” means a country to which the aliens (a) did not ask to be sent and (b) have no prior ties of citizenship, nationality, residence, or prior travel. The third country in question is South Sudan — a poor, strife-torn African country, which neighbors Sudan, where one of the world’s most savage civil wars is being waged.
This weekend, after weeks of litigation, mainly before Judge Brian E. Murphy, a Biden appointee to the federal district court in Boston, the eight men in question were finally transferred to South Sudan. For weeks, they had been in limbo — held by Department of Homeland Security agents at a U.S. military base in Djibouti after Judge Murphy intervened after the deportation flight had commenced.
As I’ve detailed, federal immigration law authorizes the executive branch to deport removable aliens to third countries if no country to which the alien has ties is willing to take the alien. Although Congress’s immigration laws essentially divest district court judges of jurisdiction over removal matters, Judge Murphy intervened with an injunction, in connection with which he sought to legislate a condition — a requirement that the government provide 15 days’ notice before removal to a third country to allow the alien to challenge it — that Congress had not prescribed. Last week, the Supreme Court admonished Murphy for attempting to enforce his injunction even after the Court had nullified it back on June 23. Subsequently, Murphy stood down and the deportation proceeded.
All of the aliens in question were convicted of serious crimes in the United States. Only one of them was from South Sudan; the others were from Vietnam, Mexico, Laos, Cuba, and Myanmar (Burma). The government of South Sudan has agreed to give the aliens at least temporary legal status and has satisfied the Trump administration that the men will not be tortured or persecuted.
To repeat what I’ve contended, Congress should consider whether some countries — because of the nature of their regimes or conditions — should be off the board for purposes of third-country deportation. That said, it is not the place of district judges, no matter how well-intentioned, to decree new immigration standards, much less to defy the Supreme Court when called on it.