The U.S. Supreme Court on Monday ruled that the Trump administration could resume deporting immigrants to countries other than their own without any chance to object on the grounds that they might be tortured. This may clear a legal path for the government to send men held at a U.S military base in Djibouti to the war-ravaged nation of South Sudan where they face an uncertain future, including the possibility of indefinite detention. Three justices, in a dissent, said the ruling exposes “thousands to the risk of torture or death.”
That may be a best-case scenario.
An Intercept investigation finds that the Trump administration has been hard at work trying to expand its global gulag for expelled immigrants, exploring deals with a quarter of the world’s nations to accept so-called third-country nationals — deported persons who are not their citizens.
To create this archipelago of injustice, the U.S. government is employing strong-arm tactics with dozens of smaller, weaker, and economically dependent nations. The deals are being conducted in secret, and neither the State Department nor U.S. Immigration and Customs Enforcement will discuss them. With the green light from the Supreme Court, thousands of immigrants are in danger of being disappeared into this network of deportee dumping grounds.
“The Supreme Court’s ruling leaves thousands of people vulnerable to deportation to third countries where they face torture or death, even if the deportations are clearly unlawful,” said Leila Kang, a staff attorney at Northwest Immigrant Rights Project, a group that represents immigrants who filed suit.
The Supreme Court gave no explanations for its decision, which paused enforcement of a federal judge’s ruling that immigrants facing deportation must be given an opportunity to show that they may be tortured at their destination. Later Monday, a district judge in Massachusetts ruled that the order didn’t apply to the deportees in Djibouti. The Trump administration urged the Supreme Court on Tuesday to allow it to immediately expel the men to South Sudan, claiming that U.S. District Judge Brian Murphy was acting in “defiance” of the Supreme Court’s order.
The majority on the Supreme Court did not publish any explanation for their Monday ruling. In a 19-page dissent, Justice Sonia Sotomayor, joined by Justices Elena Kagan and Ketanji Brown Jackson, wrote that the majority had disregarded a federal law that requires due process.
“Congress expressly provided noncitizens with the right not to be removed to a country where they are likely to be tortured or killed,” Sotomayor wrote, adding that the majority had endorsed a policy of lawlessness. “The Government has made clear in word and deed that it feels itself unconstrained by law, free to deport anyone anywhere without notice or an opportunity to be heard.” She pointed to the cases of 13 immigrants who “narrowly escaped being the target of extraordinary violence in Libya”; another who “spent months in hiding in Guatemala,” and the men who “face release in South Sudan, which the State Department says is in the midst of ‘armed conflict’ between ‘ethnic groups.’”
Tricia McLaughlin, a spokesperson for ICE’s parent organization, the Department of Homeland Security, called the ruling “a victory for the safety and security of the American people.”
Lawyers representing the immigrants at risk of being sent to countries — or even continents — that they have never visited in their lives disagree. “The ramifications of the Supreme Court’s order will be horrifying; it strips away critical due process protections that have been protecting our class members from torture and death,” said Trina Realmuto, executive director of the National Immigration Litigation Alliance.
Realmuto is representing some of the men whom the government attempted to expel to South Sudan, a nation that may, again, be teetering on the brink of civil war. Their rendition flight to South Sudan was diverted to Djibouti, when Murphy, the U.S. district judge, intervened in the case. The eight men — all previously convicted of violent crimes — have been detained on a U.S military base, Camp Lemonnier, ever since.
A top ICE official earlier this month detailed the appalling and unsafe conditions — including illnesses brought on by the environment — that deportees and the government officials guarding them face at Camp Lemonnier in a sworn legal declaration.
A recent memo by Secretary of State Marco Rubio revealed that the Trump administration threatened dozens of nations with a travel ban while dangling third-country deportation deals to avoid the restrictions. An investigation by The Intercept finds that, with this new gambit, the U.S. has reportedly pursued deals with at least 53 countries, including many that are beset by conflict or terrorist violence or that the State Department has excoriated for human rights abuses.
The State Department refused to provide a list of countries with which the U.S. has made agreements to accept deportees from third countries, citing the sensitivity of diplomatic communications.
The Trump administration began using the notorious Terrorism Confinement Center in Tecoluca, El Salvador, as a foreign prison to disappear Venezuelan immigrants in March. The Intercept — using open-source information — found that the U.S. has also explored, sought, or struck agreements with Angola, Antigua and Barbuda, Benin, Bhutan, Burkina Faso, Cabo Verde, Cambodia, Cameroon, Costa Rica, Democratic Republic of Congo, Djibouti, Dominica, Egypt, Eswatini, Equatorial Guinea, Ethiopia, Gabon, Gambia, Ghana, Guatemala, Guyana, Honduras, Ivory Coast, Kosovo, Kyrgyzstan, Liberia, Libya, Malawi, Mauritania, Mexico, Moldova, Mongolia, Niger, Nigeria, Panama, Rwanda, Saint Kitts and Nevis, Saint Lucia, São Tomé and Príncipe, Saudi Arabia, Senegal, South Sudan, Syria, Tanzania, Tonga, Tuvalu, Uganda, Ukraine, Uzbekistan, Vanuatu, Zambia, and Zimbabwe.
“The sheer number of countries is absolutely unprecedented, as is including so many countries with problematic human rights records,” Yael Schacher, the director for the Americas and Europe at Refugees International, told The Intercept. “The transactional deals the Trump administration is offering up turn migrants and refugees into pawns whose rights are of no concern. This just shows what is evident from other Trump administration policies: It does not believe the migrants have any rights.”
The nations targeted by the Trump administration recently expanded as a result of a memo, signed by Rubio, which was sent on June 14 to U.S. diplomats who work in 36 countries whose citizens may soon be restricted from entry into the United States. The cable, first reported by The Washington Post, castigated countries for failing to meet various criteria — from having “no competent or cooperative central government authority to produce reliable identity documents or other civil documents” to being state sponsors of terrorism. Rubio stated, however, that concerns with such nations could be “mitigated” if that country is willing to accept deportees from other countries.
The State Department did not comment on the memo or the impetus behind it, but provided a disingenuous statement that framed the U.S. efforts to forge third-country deportation deals in hypothetical terms. “In some cases, we might work with other countries to facilitate the removal of individuals, via third countries, who have no legal basis to remain in the United States,” a State Department spokesperson told The Intercept by email.
Many observers — and a minority of Supreme Court justices — noted that the push to send immigrants to far-flung detention facilities appears to be as bizarre as it is cruel.
“Apparently, the Court finds the idea that thousands will suffer violence in far-flung locales more palatable than the remote possibility that a District Court exceeded its remedial powers when it ordered the Government to provide notice and process to which the plaintiffs are constitutionally and statutorily entitled,” Sotomayor wrote in her dissent.
Anwen Hughes, the senior director of legal strategy for refugee programs at Human Rights First, noted that there were Mexican nationals held in south Texas set to be deported to both Libya and South Sudan. “The Mexican border is right there. I’ve been doing immigration detention work for a very long time. I’ve never in my life seen Mexico refuse to take back one of its nationals, ever,” she told The Intercept. “The U.S. appears to be looking for really implausible destinations to send people. It’s not just punitive, it’s deliberately terrifying and honestly perverse.”
“Pressuring nations that are in a vulnerable situation vis-à-vis U. S. power and diplomacy to take nationals of countries they have nothing to do with is worrisome because it obviously sets the stage for some very serious abuses,” said Hughes.
The Trump administration is paying President Nayib Bukele’s government in El Salvador $6 million to imprison the Venezuelan nationals. A May federal court filing by Rubio referred to deportation negotiations between the Trump administration and both Libya and South Sudan.
Schacher said the Trump administration’s policies highlight its “disdain for immigrants,” and the premium in places on expelling them. “If it has to allow for some immigration from Africa, it will only allow it in exchange for deportation,” she noted. “It truly sees immigration as in the interest of sending countries and not in the interests of the U.S.— so it will demand an exchange.”
Due to the secret nature of agreements, it’s unclear what fate awaits people deported to these nations. The question of whether they would be deported again to their nation of origin, or another unrelated nation, where they face the possibility of persecution or abuse; be allowed to remain in the third country and under what circumstances; or be held in detention or prison, as in El Salvador, remains unknown.
Schacher noted that while almost all African countries and nations in the Americas are parties to the U.N. Refugee Convention, countries like Kosovo, Moldova, Mongolia, Saudi Arabia, Syria, and Uzbekistan are not. If they were to expel immigrants they received as part of a deal with the Trump administration, they would have no obligation under international law to screen deportees to ensure they are not sent to a country where they face threats to their life or freedom.
Earlier this month, the U.S. struck a deal with Kosovo, Europe’s youngest country, to accept 50 deportees from other countries. The landlocked Balkan nation said the expelled immigrants would be “temporarily relocated” to Kosovo, while officials facilitate “their safe return to their home country.”
“I truly worry these places will become way stations or bridges for deportation from the U.S. to home countries,” Schacher told The Intercept. “Bhutan, not a signatory, has already accepted Nepalese from the U.S. and basically dumped them at the Indian border.”
“In matters of life and death, it is best to proceed with caution. In this case, the Government took the opposite approach,” wrote Sotomayor, detailing the efforts of the government to dump deportees in far-flung and unsafe locales. “It wrongfully deported one plaintiff to Guatemala, even though an Immigration Judge found he was likely to face torture there. Then, in clear violation of a court order, it deported six more to South Sudan, a nation the State Department considers too unsafe for all but its most critical personnel. An attentive District Court’s timely intervention only narrowly prevented a third set of unlawful removals to Libya.”
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