For the third time, the Supreme Court will soon hear argument about the federal government’s power to send migrants to countries where they have no ties. And for the third time, the justices are unlikely to focus on what matters most to the migrants who claim the Trump administration is violating the law – whether they will be persecuted, tortured, or killed. Instead, the court is likely to turn its attention to a much more technical issue: whether courts can force the government to let migrants explain why forced removal might mean almost-certain persecution.
In Department of Homeland Security v. D.V.D., scheduled for oral argument on Dec. 9, the court will review the Trump administration’s policy of removing migrants from the United States to any country that will accept them. The Immigration and Nationality Act permits so-called third-country removals under certain circumstances. After an immigration judge has ordered a migrant removed, immigration officials must first attempt to send the person to the country that they choose, where they hold citizenship, or last resided. If none of those countries accepts the migrant, officials can then send the person to a country that will take them in, so long as they are not sent to a country where they face likely persecution or torture.
Lastyear, the Trump administration revamped the government’s third-country removal process to quickly send more migrants to countries where they have no ties. Cuban citizen D.V.D., who receives treatment for a severe mental illness, and Honduran citizen M.M., who fled an abusive husband, represent a group of migrants who worry that the administration’s policy will send them into harm’s way. The policy – first announced in February 2025 and revamped in March 2025 – permits immigration officials to send migrants to any country whose government assures the State Department that it won’t persecute or torture anyone. If a government won’t provide that assurance, but will accept a migrant, the policy requires immigration officials to notify the migrant of its plans to send them to that country and give them “a reasonable opportunity” to consider whether they might face abuse there, “generally 24 hours, or after he has had a reasonable means and opportunity to speak with an attorney,” the U.S. solicitor general’s request for Supreme Court intervention explains.
The Trump administration hasn’t published a full list
The Trump administration hasn’t published a full list of countries that have assured it they won’t harm people, but, under the third-country removal policy DHS has attempted to send migrants to countries with documented records of mistreatment. An Immigration and Customs Enforcement official acknowledged efforts to transport migrants to South Sudan. News reports indicate that the administration has also tried sending people to Cameroon, the Central African Republic, and another three-dozen countries. The State Department warns people from visiting many of those countries.
Many have been sent closer to the United States. In coordination with the Mexican government, news reports suggest that more than 20,000 non-Mexicans have been sent there. One of the migrants suing DHS, a Guatemalan citizen identified as O.C.G., is among them. An immigration judge barred U.S. officials from sending him to Guatemala. Despite that, DHS “threw him on a bus to Mexico, where he had just been raped, and where he was quickly sent back to Guatemala, the place an immigration judge had just found he would likely be persecuted. And then [DHS] lied about it,” U.S. District Judge Brian Murphy wrote in February.
Indeed, Murphy, who sits in the Boston federal court, has repeatedly found the Trump administration’s legal position, as well as its litigation conduct, problematic. During the spring and summer of 2025, Murphy ordered DHS not to implement the policy citing concerns about its legality. The government nonetheless attempted to do so on multiple occasions. At least once DHS relied on testimony that a migrant purportedly gave to a government witness even though, according to Murphy, “there was no such witness.”
Murphy later concluded that the third-country removal policy
Murphy later concluded that the third-country removal policy is illegal. Without telling people where they are to be sent and giving them time to consider whether they might be harmed there, the administration’s policy violates the INA’s protection from persecution, Murphy concluded in February. The government’s view, he added, is that “‘as long as the Department [of Homeland Security] doesn’t already know there’s someone standing there waiting to shoot … that’s fine’.” But “[i]t is not fine, nor is it legal,” Murphy went on, before emphasizing that the government cannot deprive a person of their life, liberty, or property without due process of law. As a result, Murphy granted a request by a group of migrants who face the possibility of being sent to a third country to vacate the policy, ordering DHS to notify people before sending them to third countries.
The U.S. Court of Appeals for the 1st Circuit largely agreed with Murphy. Affirming most of Murphy’s decision, the appellate court explained in September that legal limitations on the government are meaningless if the people who the government targets can’t ask a court to intervene when they believe the government is violating the law. As the 1st Circuit summarized its position, “an individual’s right to contest removal to a country based on a fear of persecution in that country means little if one does not receive prior notice of the intended removal destination and a meaningful opportunity to contest that destination.”
Despite the high stakes of the administration’s policy, the Supreme Court is more likely to decide D.V.D. based on technical issues of judicial authority to consider the migrants’ claim. The solicitor general argued, in his petition for emergency relief, that a series of federal laws bar courts from hearing any claims that removal from the United States might result in persecution or torture. The one exception, the solicitor general contends, is for individual claims initially aired before a federal court of appeals. As a class action lawsuit first raised in the Boston district court, such federal courts thus have no authority even to consider the migrants’ claims, the solicitor general argues.
The migrants dispute the solicitor general’s view
The migrants dispute the solicitor general’s view. Even though Congress has constrained judicial review of immigration-related claims, they argue that the INA allows courts to consider whether the federal government is acting illegally by sending people to countries where they are likely to be endangered. Congress has limited courts’ power to block immigration agencies through injunctions, but Murphy’s order vacating the policy, which is based in the Administrative Procedure Act, is not an injunction, they argue.
When it announced that it would hear arguments in this case, the court also invited the solicitor general to identify any reasons not previously argued for why it thinks the administration should win. That’s unlikely to prompt the government to focus on the risks that migrants face when DHS uses a hurried process.
For migrants who fear for their lives, the stakes couldn’t be higher: life or death. But, ultimately, this case is likely to turn on technical questions of judicial power.
