Third-Country Deportations: SCOTUS Lets Them Resume — Again — and Sets an Early-December Merits Argument

Third-Country Deportations: SCOTUS Lets Them Resume — Again — and Sets an Early-December Merits Argument

UPDATE (Sept. 29, 2026): The Supreme Court granted the administration's third emergency application in DHS v. D.V.D. (26A406), again putting Judge Brian Murphy's (D. Mass.) safeguards order on hold and clearing the government to resume deportating immigrants to third countries while litigation continues. Per SCOTUSblog's Amy Howe: "In a brief, unsigned order on Tuesday afternoon, the justices cleared the way for the government to continue such 'third-country removals' until they can consider, and rule on, the merits of the dispute¹² – a decision that will likely come sometime next year."

The Court set oral argument for early December and — in an unusual move — instructed the litigants to brief, alongside the legality of the DHS guidance and Murphy's jurisdiction, "any 'other questions that the Government determines are appropriate for the proper disposition of the case.'" Justices Sotomayor, Kagan, and Jackson said they would have denied the request; they offered no explanation.

Procedural backdrop: Murphy's February 2026 final judgment requires "meaningful notice" and a "meaningful opportunity" to contest removal to a third country before deportation, plus a "reasonable fear" torture screen. The First Circuit largely upheld him on Sept. 18, 2026, and five days later dissolved the stay — prompting Solicitor General D. John Sauer's third trip to the Court within the case. The immigrants had argued that Murphy's decision "does not prevent third-country removals; rather, it simply requires" the government "to do so lawfully."

What it means: The government is now 3-for-3 at the stay stage in this litigation, and removals proceed without Murphy's notice-and-screening safeguards for at least the next two months — spanning the Nov. 3 midterms. The invitation to brief government-proposed "other questions" suggests the majority may be open to narrowing who can challenge the policy or how, not just ruling on the guidance's legality. This is the third-country arm of the same deportation-power contest tracked in Trump-Appointed Judge Holds DHS in Contempt — Again — for Deporting Protected Asylum Seeker to El Salvador Twice and D.C. Circuit En Banc Hears the Fight Over Boasberg's Contempt Probe of the Deportation Flights.