President Donald Trump gestures as he boards Air Force One at Morristown Municipal Airport, in Morristown, N.J., Sunday, Aug. 2, 2026, en route to return to Washington (AP Photo/Jacquelyn Martin).
The U.S. Supreme Court has granted certiorari in a case over so-called "third-country" deportations. In doing so, the court allowed the Trump administration to continue the practice while litigation plays out.
In a terse, analysis-free order, the nation's high court listed the granting of the petition as the lone development on Tuesday.
While the court's acceptance of a case does not typically come with an explanation, staying a lower court's order often does result in the body showing its work. But although a stay pending appeal was issued, no explanation was attached — putting Tuesday's ruling firmly in the area of what legal scholars term the court's "shadow docket."
Now, the oft-litigated case and its numerous issues will come before the justices for the third time, though the first time on the merits.
The controversial policy has twice come before the Supreme Court on emergency stay requests after U.S. District Judge Brian E. Murphy, a Joe Biden appointee, twice blocked such deportations. In turn, the conservative majority twice allowed the policy to go back into effect.
Earlier this month, however, the U.S. Court of Appeals for the 1st Circuit became the first appellate court to rule on the merits and find that the policy does not pass muster under numerous federal laws — after Murphy issued his own merits decision in February.
While the district court's final ruling on summary judgment determined the so-called policy violates the "bedrock principle" of due process, the 1st Circuit used a doctrine known as "constitutional avoidance" to find the policy illegal strictly under federal law.
The Trump administration, in its application for an emergency stay — which the justices fashioned into a petition for the writ of certiorari — implored the court to consider due process anyway.
In the government's 45-page emergency appeal filed late last week, Solicitor General D. John Sauer argued that the third-country deportation policy is "similar in timing to the expedited-removal process that this Court has upheld against a due-process challenge."
In deciding to hear the appeal, the Supreme Court opted to take the government up on due process arguments as well, despite the appellate court's efforts to avoid those constitutional issues.
Aside from due process issues, the justices will consider whether the district court even had jurisdiction to hear the claims in the first place. The government says it did not because it wants all such deportation matters brought only before immigration judges — which, despite their title, are not actually part of the judicial branch.
Notably, under existing Supreme Court precedent, federal appellate courts affirmatively do have power to review such claims.
In a similar vein, the high court will consider whether Murphy was in the right to issue sweeping relief under the Administrative Procedure Act (APA), the statute undergirding all agency actions. Such a decision could reverberate and set substantial precedent should the justices rule in the negative because vacating government policy under the APA is a form of relief akin to a nationwide injunction.
The high court will also explicitly direct the parties to answer whether such deportations are "unlawful" under immigration law.
On the statutory front, the arguments will touch on what is at the factual heart of the dispute: if such deportations comport with the highly specific and exacting statutes, rules and regulations under anti-torture laws and conventions to which the United States is party.
To hear the plaintiffs — and every other court to consider the issues — tell it, the notice given to deportees with "credible fear" of being persecuted or tortured has been insufficient. Implicit in such rules are guarantees a deported person will be safe from such treatment.
In a footnote, the 1st Circuit expressed strong doubts about the "blanket assurances" issued by third countries that have agreed to take in such deportees, saying those with fear claims could still be subject to violence by "rogue agents and non-state actors."
For now, the government's policy will continue to the extent that it is able to find willing countries to accept the deportees in question.
Rejecting the stay were Justices Sonia Sotomayor, Elena Kagan and Ketanji Brown Jackson. As of this writing, a dissent was not filed.