Unassigned

The Supreme Court Rules on Deportations to Third-Party Countries (LAWSPLAINING)

Aaron Walker
Aaron Walker  |  1:45 AM on September 30, 2026

One issue that has cropped up since Trump has become president is this: Sometimes when we want to deport a person to their home countries, that country refuses to take them. And for some unfathomable reason, we honor that.

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We don’t want to get off on a rant here, but if they are citizens of that country, that country shouldn’t have a say in whether or not they take their citizens back. We think we should put them at a relatively neutral spot, such as right across their border, just off the airplane at the airport, on the docks or whatever and say ‘you deal with them.’ But, so far that has not been America’s policy.

So, we honor that wish and deport the illegal immigrant to a different country. But the Left is crying that this is somehow wrong, mostly because they want to make it impossible to deport anyone. After all, if we won’t deport them to their home country, and we can’t deport them anywhere else, then we can’t deport them at all. They pretend otherwise, but their goal is to so gum up the deportation process until it becomes impossible. Everyone with eyes can see that.

In any case, judges have been attempting to block this policy and now, via the excellent SCOTUS Wire account on TSMSFKA Twitter (The Social Media Site Formerly Known As Twitter) we get this news:

As usual, this author won’t force you to squint. We will provide a cut and paste of the text of the order, but with extra paragraph breaks added for ease of reading, and we will break in occasionally for a bit of that patented Aaron Walker® ‘lawsplaining:’

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DEPT. OF HOMELAND SEC., ET AL. V. D.V.D., ET AL.

Okay, just to break in, this is not a case against a form of storage media that is quickly going the way of the dinosaur. D.V.D. is almost certainly the initials of a person who, for some reason, is being granted the right to file anonymously. We won’t say anything about whether anonymity is justified except to say we can imagine scenarios where it would be justified.

The application for stay presented to Justice Jackson and by her referred to the Court is granted. The February 25, 2026 order and judgment of the United States District Court for the District of Massachusetts, case No. 1:25-cv-10676, are stayed.

So the Federal Government moved for a stay of the lower court order stopping such deportations, so the deportations could go forward. As you can see, Jackson was the first to look at this and despite her personal opposition to the stay, she got the rest of the court involved. As you will see in a minute, we had three dissents from granting the stay (no points for guessing which three justices), and so the deportations go forward.

Now, this is not a final decision on the merits. But one of the elements needed to be shown to get a stay is that the side seeking the stay — in this case, the Trump Administration — was likely to succeed on the merits. Therefore, this is six Supreme Court justices already saying Trump is likely to win.

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Back to the order:

The application is also treated as a petition for a writ of certiorari, and the petition is granted. 

We don’t recall if we have ever explained this before, but a writ of certiorari is the mechanism by which the Supreme Court decides to hear the vast majority of its cases. By granting it, they are saying ‘we are now taking the case.’ So, they are saying they are not only staying the case, but now they are going to hear it before the Supreme Court, even though they have already strongly suggested that the government should win this already.

Back to the order:

The parties are directed to brief and argue the following questions:

(1) Whether the district court had jurisdiction over Respondents’ claims. 

(2) Whether the district court had authority to enter classwide declaratory relief and APA vacatur under 8 U. S. C. §1252(f)(1). 

(3) Whether the Government’s Guidance on third-country removals is unlawful under 8 U. S. C. §1231(b), the Due Process Clause, or FARRA/CAT and its implementing regulations.

(4) Such other questions that the Government determines are appropriate for the proper disposition of the case. 

The Clerk is directed to establish a briefing schedule that will allow the case to be argued in the December 2026 argument session. The stay shall terminate upon the sending down of the judgment of this Court.

Justice Sotomayor, Justice Kagan, and Justice Jackson would deny the application for stay.

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To break it down, the first issue is whether or not the district court had the right to hear the case at all (jurisdiction). At least one other immigration case failed on jurisdictional grounds, but we won’t pretend to know how strong this argument is in this case, except to say it is at least strong enough in the Supreme Court to take up the question.

Second, when they refer to classwide relief, they mean whether or not the district court could issue a broad injunction. The Supreme Court has clamped down on these kinds of orders, but left open the door for class action suits. Now they might sew up that issue, too.

Third up, we have the substance of the question. They bring up 8 U.S.C. §1231(b), which basically sets up procedures for where the illegal immigrant will be sent and, to be very blunt, the statutory language seems pretty straightforward in its application. If we were an attorney for the illegal immigrants in this case, we don’t think we would see much hope in that statute. The Supreme Court also brings up the due process clause, and, bluntly, the Supreme Court has used it for a springboard of all kinds of questionable rulings, so if we were representing DVD et al, we would consider that as one of our stronger arguments, though this Court is unlikely to stretch due process to stop them from being deported. And FARRA/CAT apparently refers to treaties that protect people from being deported to countries where they are likely to be tortured. But you will recall, that was the claim being made by Maryland man El Salvador man Kilmar Abrego Garcia, on the theory that the threat of being targeted by criminals for torture triggered the treaty. We think frankly that is a tortured definition of the term ‘torture.’

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So, that should give you a reasonable understanding of what happened. And it should also give you a reasonable guess how things will turn out:

Indeed, we wonder if the Supreme Court will start taking the lower courts to task for their apparent Judicial Insurrection — not just against Trump, but against the Supreme Court itself.

A reasonable conclusion.

Because the government is listening to the people that elected it, as expressed through their pretty clear statutory instructions, instead of unelected judges? That is somehow against ‘democracy?’

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The cut off text:

So, you’re heading for an all expenses paid trip to the great ocean facing country of Liberia in Africa 

Thank the senator from MD @ChrisVanHollen who pushed the idea that one of his margarita buddies… illegal Kilmer Abrego Garcia, could not legally be sent back to El Salvador… due to persecution risk… but can’t get asylum here !

Sometimes, but the other problem is that countries often refuse to take them back. We seem to recall that being a problem with some Venezuelan deportees, but we haven't heard about that being a problem since early January. Gee, did something happen to change their policy?

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