Supreme Court Clears Third-Country Deportations as Due Process Questions Remain Open

The Supreme Court this week allowed the Trump administration to resume third-country deportations — the removal of migrants to countries they have no connection to, not their countries of origin — while simultaneously asking both sides to brief whether lower courts had jurisdiction to issue the nationwide injunctions that had blocked the policy, and whether the policy itself violates the due process clause or international conventions against torture.

More than a dozen UN human rights experts wrote to the US government this week urging a halt to the removals, with particular concern for children, women, persons with disabilities, and other vulnerable groups who face compounded risks in unknown third countries. The jurisdictional question carries significant strategic weight: the administration has fought vigorously against nationwide injunctions — orders that block a policy across the entire country from a single district court ruling. If the Supreme Court ultimately determines those lower courts lacked jurisdiction, it could functionally insulate a wide range of executive actions from rapid legal challenge.

The due process stakes are foundational. The Fifth Amendment's protections extend to any 'person' deprived of liberty without due process, not to citizens alone — courts have consistently held that non-citizens facing deportation retain those rights. In third-country cases, the key question is whether procedural protections are adequate when someone is sent to a country they have never lived in. The Convention Against Torture, which the United States has ratified, separately creates a non-refoulement obligation: an individual cannot be transferred to a country where there are substantial grounds to believe they would face torture. If deportees are being removed without individualized assessments of such risks, the administration is on contested terrain under binding treaty law, not just domestic constitutional doctrine.

The Court's decision to allow resumptions while briefing continues signals that at least a majority was not persuaded by the emergency stay arguments from challengers. That does not resolve the underlying merits, which will play out across months of argument. But the practical effect means deportations can proceed in the interim — and the law often moves far slower than the facts on the ground. By the time the full legal process concludes, potentially in late 2027, the policy will have been in effect for a substantial period, with real consequences for the individuals caught in that window.