A federal appeals court has rejected a Trump administration policy designed to rapidly deport migrants to countries where they may never have lived, ruling that the government must provide meaningful due-process protections before putting them on a plane.
The unanimous ruling from the First U.S. Circuit Court of Appeals represents another significant legal setback for one of the administration's most aggressive immigration-enforcement strategies.
At the center of the case is a relatively simple question:
Can the United States deport someone to an entirely different country without first giving that person a meaningful opportunity to explain why being sent there could put them in danger?
The appeals court said the government must provide that opportunity.
Deporting People Somewhere Else
Ordinarily, deportation brings to mind returning someone to his or her country of origin.
That's not what this case is about.
The Trump administration has increasingly used what are known as third-country deportations.
Under the policy, migrants can be removed from the United States and sent to countries other than their own.
According to Reuters, more than 25,000 migrants have been sent to third countries since Trump returned to office.
The destinations have included countries in Africa and Latin America.
The administration argues that the strategy is necessary when a migrant's home country refuses to accept the person or when other obstacles make conventional deportation difficult.
But the policy created another problem.
What happens if the third country is dangerous for the person being deported?
The Court Says They Get a Chance to Object
Federal law and international agreements prohibit the United States from sending people to countries where they are likely to face torture.
Immigration law also provides protections for some people who face persecution.
The administration attempted to streamline third-country removals by limiting how much notice migrants received before being deported.
A federal judge intervened.
U.S. District Judge Brian Murphy ordered the government to provide migrants with notice and a meaningful opportunity to raise concerns before deporting them to a third country.
The Trump administration appealed.
On September 18, the First Circuit sided with Murphy.
The three-judge panel upheld the central protections imposed by the lower court.
The Judges Were Unanimous
This wasn't a divided ideological decision.
All three judges on the panel agreed with the result.
The appeals court concluded that people facing third-country deportation must have a meaningful opportunity to raise claims that they could face persecution or torture at their proposed destination.
The ruling doesn't prohibit third-country deportations.
That's important.
The government can still deport migrants to countries other than their own under appropriate circumstances.
What the government cannot do, according to the ruling, is eliminate the procedural protections required before doing so.
In practical terms:
The administration can still pursue the policy.
It just can't necessarily do it as quickly as it wanted.
Why Use Third Countries at All?
The administration faces a practical problem in carrying out its mass-deportation agenda.
Not every country willingly accepts deportees from the United States.
Some governments refuse.
Diplomatic relations can complicate removals.
In other cases, establishing citizenship or obtaining travel documents can take considerable time.
Third-country agreements provide another option.
If the migrant's home country won't accept the person, another country might.
The administration has defended these arrangements as an important immigration-enforcement tool.
Critics argue that sending people to countries with which they have little or no connection creates serious humanitarian and legal concerns.
The appeals court didn't decide whether third-country deportations themselves are good policy.
It decided what process must occur before one takes place.
The Government Wanted Speed
Speed has been a central component of the Trump administration's immigration strategy.
The administration has repeatedly argued that lengthy immigration proceedings make deportation unnecessarily difficult and allow people ordered removed to remain in the United States for extended periods.
Third-country removals offered a potential workaround.
But faster deportations create an obvious legal tension when the destination changes.
Someone who has already litigated whether he can safely return to his home country may never have had any reason to present evidence about an entirely different nation.
If the government suddenly announces that the person is being sent somewhere else, the appeals court concluded that the individual must have a meaningful opportunity to raise objections concerning that destination.
The Question Isn't Whether They Can Stay
Another important distinction can easily get lost in the political argument.
The migrants involved may already have final removal orders.
The court wasn't necessarily deciding whether they have a legal right to remain in the United States.
Instead, the dispute concerns where the government may send them and what protections apply before it does so.
A person could therefore lose the legal right to remain in America while still possessing a legal right not to be sent somewhere that presents a substantial risk of torture or persecution.
Those are separate questions.
The Administration Disagrees
The Trump administration has argued that the lower court improperly interfered with the executive branch's authority to enforce immigration law and conduct removals.
Administration officials have also maintained that existing procedures provide adequate safeguards.
The government has repeatedly argued that federal courts have gone too far in restricting presidential authority over immigration enforcement.
That larger constitutional fight has appeared repeatedly during Trump's second administration.
This case now adds another chapter.
More Than 25,000 People
The scale of the policy makes the ruling more than an abstract legal dispute.
According to government data reported by Reuters, the United States has deported more than 25,000 migrants to third countries since Trump returned to office.
That means the legal rules governing these removals potentially affect thousands of people.
The appeals court's ruling doesn't bring those deportations to an end.
It establishes additional procedural requirements for future cases.
Migrants must receive meaningful notice.
They must have an opportunity to raise safety concerns.
And claims involving potential torture or persecution cannot simply be bypassed in the interest of carrying out the deportation faster.
Another Immigration Fight Could Reach the Supreme Court
The appeals court may not have the final word.
The administration can seek additional review, including potentially asking the U.S. Supreme Court to intervene.
The Supreme Court has already been drawn repeatedly into disputes over Trump's immigration policies.
If this case reaches the justices, the central question won't simply be whether the president can aggressively enforce immigration law.
It will involve something more fundamental:
What process is the government required to provide before it puts someone on an airplane and sends them to a country where they say they could be tortured or persecuted?
For now, the First Circuit has given its answer.
The Trump administration can continue deporting people.
It can continue negotiating agreements with third countries.
It can continue pursuing its broader immigration-enforcement agenda.
But when the government decides to send someone to a country other than their own, the court says one thing can't be eliminated simply to make the process faster:
Due process.