Monday and Tuesday were a confusing 48 hours for the people facing deportation to South Sudan.
An April 18th Order that prevented their deportation without further due process had held them within the U.S. for the time being, but on Monday the U.S. Supreme Court granted a stay of that Order pending appeal of the case, essentially clearing the way to restart deportations.
As I explain in the above video, deportations to third countries are not off the menu entirely. After an exhaustive search for better options to receive deportees, beginning with the deportee’s choice, the administration can deport to a third country. However, the administration is required to perform a review in order to ensure the safety of deportees. This is, in essence, the “process due” before deporting someone to a third country.
The current administration has drafted regulations to codify this due process. In essence, they include, “asking the country if they’re going to harm the deportees.” If the country says “no,” then the due process is complete. The District Court held that this process did not rise to the level required in the statute, among other concerns.
The Supreme Court did not explain its reasoning for granting the stay. A three judge dissent gave us little indication as to whether the majority granted the stay based on the due process issue, or a class certification issue which was also in play in the request for a stay. But the stay was granted nonetheless and for a moment, the administration seemed cocked and ready to send people to South Sudan.
However, the District Court Judge had also released a second Order on May 21st specifically addressing the issue of South Sudan as a safe destination for deportees. Noting that the administration’s own State Department had issued a travel warning in March related to crime and kidnapping in South Sudan, the Massachusetts Judge stated that South Sudan clearly did not meet the standard required.
As the Supreme Court stay issued Monday only applied to the April 18th Order, did the May 21st Order remain in place? Justice Sotomayor suggested that it did, and the Administration was reminded by the lower court not to send deportees to South Sudan. A request has been submitted to the Court to clarify its stay and we await a response. For now the deportees themselves remain in limbo.
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