The Justice Department filed an emergency appeal with the Supreme Court on Thursday to revive its policy of deporting illegal immigrants to countries other than their homeland, a practice lower courts have now blocked twice on due-process grounds.
Solicitor General D. John Sauer submitted the request after a federal appeals court largely upheld a February 2026 order from a Boston-based district judge requiring immigration officials to give deportees notice and a meaningful chance to challenge their removal before sending them to a third country. The appellate ruling, handed down last week, forced the Department of Homeland Security to cancel a planned flight carrying 70 would-be deportees to three unidentified nations, some of whom, Sauer wrote, had criminal records.
It is the third time the administration has brought this fight to the nation's highest court. The justices have sided with the White House twice before, including a 6-3 ruling last year that allowed third-country removals to continue while litigation played out. That earlier decision lifted a separate injunction from the same Boston judge that had barred deportations without first giving detainees the opportunity to raise fears of torture or persecution.
Now the administration wants the Court to do it again, and quickly.
In his emergency filing, Sauer cast the third-country removal program as essential to enforcing immigration law against people whose own governments refuse to take them back. He told the Court the policy has been operating for 15 months and has already removed "thousands" of individuals, with "thousands more" estimated to be eligible.
"These include some of the worst of the worst criminal aliens, whose home countries refuse to take them back."
Sauer argued that the lower court's interference disrupts sensitive diplomatic arrangements the administration has negotiated with receiving nations. The government has brokered agreements with dozens of countries, mainly across Africa and Latin America, to accept deportees who are not their own citizens.
"Finding third countries willing and able to accept aliens is a delicate diplomatic endeavor. By interjecting itself in that process, and potentially disrupting those carefully negotiated arrangements, the lower courts' actions 'will cause significant and irreparable harm to U.S. foreign policy.'"
He added that the lower court's decision "undermines our standing abroad." The filing asked Justice Ketanji Brown Jackson, who handles emergency appeals from Massachusetts and surrounding states, to grant temporary relief while the full Court considers the case. Jackson gave lawyers for the immigrants until Monday afternoon to respond.
The administration has fought a series of Supreme Court battles over immigration enforcement, and the third-country deportation dispute has become one of the most legally consequential.
The February 2026 order at the center of the dispute came from U.S. District Judge Brian Murphy, a Biden appointee based in Boston. Murphy ruled that the administration's process for removing people to third countries violates constitutional due-process protections because it does not give deportees adequate notice or a chance to contest where they are sent.
Under the policy, DHS can send detainees to third nations without individual notice so long as the receiving country has provided blanket assurances against persecution or torture. ICE targets two categories of people: immigrants with limited legal protections barring deportation to their homelands, and detainees whose home countries limit or reject U.S. deportation flights.
Murphy's order required officials to provide notice and a hearing before any third-country removal, a requirement the administration says grinds the program to a halt. The First Circuit Court of Appeals largely upheld Murphy's ruling last week, then dissolved its own temporary pause on the order after lawyers for the immigrants flagged a planned deportation flight to several African countries.
That forced DHS to cancel the flight for 70 detainees. Sauer's 42-page emergency application argued that Murphy's ruling directly conflicts with the two prior Supreme Court emergency stays that allowed the policy to continue.
The legal back-and-forth mirrors a broader pattern in which the administration has clashed with lower-court judges over immigration enforcement, only to seek, and often receive, relief from the Supreme Court. Other recent immigration disputes have also required executive workarounds after judicial setbacks.
The scale of the third-country removal effort is larger than Sauer's "thousands" framing suggests. The administration has deported more than 25,000 migrants to 29 countries under the program, according to figures cited in the emergency filing.
Destination countries include Liberia, Equatorial Guinea, the Central African Republic, South Sudan, and Eswatini. Several of those nations face serious internal challenges, armed conflict, repressive governance, human rights concerns, and deep poverty. South Sudan and Eswatini have received deportees with violent and serious criminal histories, including individuals convicted of murder, arson, robbery, and sexual assault.
But not all deportees fit the "worst of the worst" description. CBS News interviewed deportees in Liberia last month who had been sent to the West African nation from the United States. Those individuals came from Brazil, Colombia, Guatemala, Honduras, and Venezuela. They had no known criminal records beyond U.S. immigration violations.
Attorney Trina Realmuto, representing immigrants challenging the policy, argued that the administration wants to keep sending people to countries where they face life-threatening conditions. Former DHS Assistant Secretary Tricia McLaughlin offered the opposing view, saying the Supreme Court's prior rulings represent "a victory for the safety and security of the American people."
Judge Murphy, for his part, acknowledged the administration's enforcement authority but insisted constitutional limits still apply. "That does not change due process," he wrote. "The court treats its obligation to these principles with the seriousness that anyone committed to the rule of law should understand."
The tension between executive enforcement power and judicial due-process requirements has become a recurring flashpoint, one that has reached the Supreme Court's emergency docket repeatedly in recent terms.
Justice Jackson now controls the immediate timeline. As the justice assigned to emergency matters from the First Circuit, she can act alone to grant or deny temporary relief, or she can refer the application to the full Court. Her Monday afternoon deadline for the immigrants' lawyers to respond suggests a decision could come within days.
The administration's track record at the Supreme Court on this issue is strong. The justices have twice intervened to keep the program running, and the 6-3 ruling last year fell along the Court's familiar ideological lines. Justice Sonia Sotomayor, in dissent, wrote: "In matters of life and death, it is best to proceed with caution. In this case, the Government took the opposite approach."
Several questions remain unanswered. Which three countries was the canceled flight headed to? How many of the 70 passengers had criminal records, and for what offenses? What specific assurances have receiving governments provided, and how does the administration verify compliance? The emergency filing, by its nature, prioritizes speed over detail.
Critics of the judiciary's role in immigration enforcement, including some who have questioned the Court's institutional credibility from the opposite direction, will be watching closely to see whether the justices intervene a third time.
What is not in dispute is the core policy question: the federal government has thousands of deportable individuals in custody whose home countries will not take them back. The administration found countries that will. Lower courts say that arrangement requires due process. The Supreme Court has twice said the removals can proceed. Now a third round begins.
At some point, a federal government that cannot remove people who have no legal right to stay, because their own nations refuse them and judges block the alternative, is a government that has lost control of its own borders. The Supreme Court has a chance to say so clearly.