US appeals court weighs Trump policy allowing swift deportations to third countries

By Nate Raymond

Feb 3 (Reuters) - A federal appeals court expressed unease on Tuesday with the Trump administration's practice of rapidly deporting migrants to countries other than their own even as it signaled it may narrow a lower court's injunction designed to safeguard their due process rights.

A three-judge panel of the Boston-based 1st U.S. Circuit Court of Appeals at oral arguments appeared likely to reject the administration's stance that a trial judge had no power to issue a preliminary injunction that would force it to provide migrants notice and an opportunity to raise any fears of persecution or torture they would face if they were deported to a third country.

"Congress didn't give you the absolute authority to send people to third-party countries," U.S. Circuit Judge Seth Aframe told a government lawyer. "It gave you that authority subject to provisions that give people the ability to challenge, to protect themselves."

But Aframe, who was appointed by Democratic President Joe Biden, said the appeals court could not ignore that the U.S. Supreme Court in June stayed the nationwide injunction that U.S. District Judge Brian Murphy had issued at the behest of immigrant rights advocates who filed a class action lawsuit challenging the policy.

He suggested the court may need to narrow the class-wide injunction to only cover the four named plaintiffs in the case, which the Justice Department has said it anticipates will eventually reach the Supreme Court again.

The high court has already intervened in the case twice, most recently by clearing the way for eight men to be sent to South Sudan, where they remain in custody.

Trina Realmuto, a lawyer for the plaintiffs at the National Immigration Litigation Alliance, told the 1st Circuit there was no reason it could not still uphold Murphy's decision in full despite the Supreme Court's brief order, which came on its emergency docket, also known as the "shadow docket."

That order provided little explanation for why it stayed Murphy's ruling, and Realmuto said there was no reason to accept the Justice Department's contention that the order controlled the outcome of any merits-based ruling the 1st Circuit issues.

"What is happening in practice is people are rapidly being deported to third countries, including people who say they tried to articulate a fear claim to third countries very quickly," she said.

She said those deportations are occurring as a result of a U.S. Department of Homeland Security policy that was documented in a March memo and subsequent guidance in July that permits the rapid deportation to third countries of migrants subject to final orders of removal issued by immigration judges.

The policy allows migrants to be deported to such countries if immigration authorities either have credible diplomatic assurances they will not be persecuted or tortured if sent there or have given the migrants as little as six hours of notice ahead of time that they are being sent to such a place.

Justice Department attorney Sarah Welch argued that the policy provided sufficient safeguards that should not be "second guessed" by the judiciary. Anyone worried about being deported to a newly identified third country could move to reopen their immigration proceedings to raise concerns before an immigration judge, she said.

"Aliens who have not been admitted to the country, which is a term of art in immigration law, don't have due process rights beyond the process provided by the political branches," she said.

But Senior U.S. Circuit Judge Jeffrey Howard, who was appointed by Republican President George W. Bush, questioned whether someone could practically raise those concerns in time in immigration proceedings if "they haven't had notice until the very, almost the very moment when they're going to be removed."

"What are they supposed to do then?"

The case is D.V.D. v. U.S. Department of Homeland Security, 1st U.S. Circuit Court of Appeals, No. 25-1393.

For the plaintiffs: Trina Realmuto of the National Immigration Litigation Alliance

For the United States: Sarah Welch of the U.S. Department of Justice

Read more:

US judge open to again striking down Trump policy on third-country deportations

Supreme Court lifts limits on Trump deporting migrants to countries not their own