Appeals Court Questions Justice Department on Third-Country Deportation Policy

A federal appeals court on Wednesday questioned the Justice Department over the Trump administration's policy of deporting immigrants without permanent legal status to countries other than their country of origin. The Supreme Court has twice allowed the policy to continue while litigation proceeds.

A three-judge panel on the U.S. Court of Appeals for the 1st Circuit questioned a DOJ lawyer on the process and what assurances the federal government has received from those countries not to harm the deportees. Third-country deportations are typically used by federal immigration officers when they cannot return an individual to their home country because of an immigration court order or diplomatic reasons.

The case before the 1st Circuit involves a group of immigrants lacking permanent legal status whom the administration planned to send to South Sudan. The judges focused on the administration's reliance on diplomatic assurances to address human rights and torture concerns, asking what those assurances contain and whether they could be challenged in court.

The DOJ lawyer told the panel that the agreements with third countries represent a core executive branch function. The federal government determines on its own whether a diplomatic assurance against torture or prosecution is credible, the lawyer said, and courts cannot second-guess that determination.

Two of the judges expressed concern with that position. The lawyer leaned on the Supreme Court's prior actions in the case. “The district court’s preliminary injunction interfered with executing the valid and unchallenged removal orders of illegal aliens who were particularly difficult to remove and intruded on areas that the Constitution and Congress have consigned to the executive branch,” the lawyer said.