It’s the El Salvador Deportation Flight All Over Again—but This Time to South Sudan

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Donald Trump won the presidency in part on promises to deport immigrants who have criminal records and lack permanent legal status. But his earliest executive orders—trying to undo birthright citizenship, suspending critical refugee programs—made clear he wants to attack immigrants with permanent legal status too. In our series Who Gets to Be American This Week?, we’ll track the Trump administration’s attempts to exclude an ever-growing number of people from the American experiment.

For months, President Donald Trump and his administration have been stress-testing our legal system, taking seemingly unconstitutional actions right and left—and judges have blocked many of them by issuing nationwide injunctions. But last week, the Supreme Court weighed a move that would make it easier for Trump to do whatever he wants: restricting or abolishing lower courts’ ability to issue injunctions that apply nationally. And this week, the justices lifted an injunction that was preventing federal authorities from revoking the legal status of hundreds of thousands of Venezuelan migrants, essentially putting a bright red target on their backs for deportation.

Meanwhile, the administration reportedly carried out another lawless deportation flight—but this time, a small group of migrants was flown to South Sudan, a country on the brink of civil war that is experiencing a dire humanitarian crisis. A judge declared that those actions violated his order, which had banned deportations to third countries and required the federal government to adhere to due process laws.

Here’s the immigration news we’re keeping an eye on this week:

Roughly two weeks after U.S. District Judge Brian Murphy, of Massachusetts, issued a preliminary injunction preventing the Trump administration from deporting immigrants to third countries—countries that are not a foreign national’s place of origin—the president did it anyway. During a hearing on Wednesday, Murphy concluded, “The government’s actions in this case are unquestionably violative of this court’s order.”

That hearing was the culmination of a chaotic 24 hours. Starting on Tuesday morning, at least two men, one from Myanmar and the other from Vietnam, were deported to South Sudan, having received notice from the government only one day beforehand, according to court documents. Their lawyers say they were not given a chance to raise credible-fear claims, and one man was given a removal notice in English, despite having limited proficiency in the language.

There also appeared to be confusion about where the men would be deported. “I fear that my husband and his group, which consist of people from Laos, Thailand, Pakistan, Korea and Mexico are being sent to South Africa or Sudan against their will,” wrote the wife of the man from Vietnam, in an email to her attorney.

This action flies in the face of Murphy’s April injunction, which specifically banned the federal government from deporting migrants to any country besides their home country without due process. Just two weeks ago, the judge issued another warning to the Trump administration not to attempt to deport any migrants to third countries without first giving written notice “in a language the non-citizen can understand as well as a meaningful opportunity for the non-citizen to raise fear-based claims for protection.”

Upon learning about the new deportations to South Sudan, Murphy held an emergency hearing Tuesday evening at which he pressed government lawyers for information on where the migrants were being taken. “Where is the plane?” he asked.

“I’m told that that information is classified, and I am told that the final destination is also classified,” said Elianis N. Perez, a lawyer for the Department of Justice, according to the New York Times. Perez insisted that the government had not violated Murphy’s orders because the man deported did not raise a credible-fear claim.

The judge instructed Perez to tell everyone involved in the deportation operation, from the pilot to Department of Homeland Security officials, that they could face criminal contempt charges if his orders were violated. Then, during Wednesday’s hearing, Murphy ordered government attorneys to submit a declaration by the end of the day clarifying whether South Sudan’s government would be willing to send back U.S. deportees if they expressed credible-fear claims.

On Monday morning, the Supreme Court quietly made a hugely consequential immigration decision via its shadow docket. With the click of a button, it effectively pushed 350,000 lawful Venezuelan immigrants into undocumented legal status when it published a brief order that allows DHS to revoke their protected status, effective immediately.

“It’s a deeply upsetting decision because, as far as I can tell, this judicial action strips the most noncitizens of their immigration status in modern U.S. history,” Elora Mukherjee, a clinical law professor at Columbia University and director of the school’s Immigrants’ Rights Clinic, told me. “For the Supreme Court to do it with no reasoning at all, without oral argument or full briefing, it is shocking.”

The justices were responding to an emergency appeal request by the Trump administration in a legal battle over Temporary Protected Status, a program that admits foreign nationals of countries that the federal government designates as unsafe due to ongoing armed conflict, environmental disasters, epidemics, or other extraordinary conditions. Those who qualify receive a work permit and are given protection from deportation—but soon after taking office, Trump signed an executive order directing DHS Secretary Kristi Noem to “terminate all categorical parole programs,” including TPS.

This case was considered under the Supreme Court’s shadow docket—a process, usually reserved for extreme emergencies, in which no briefings or hearings are held. Ketanji Brown Jackson was the only justice who indicated she would deny the application to take the Trump administration’s case on this issue. In a dissent from a different shadow docket order this past week, Jackson laid out her objections: “As a practical matter,” she wrote, “it is plainly prudent to reserve our emergency docket for applicants who demonstrate that they truly need our help now.”

After Noem announced in January that DHS would begin revoking TPS for hundreds of thousands of immigrants, advocacy group National TPS Alliance immediately filed suit. U.S. District Judge Edward Chen, of California, ordered Noem to halt the revocation plan, holding that it was motivated by “unconstitutional animus.” The Trump administration promptly asked SCOTUS to intervene. Though the justices allowed Noem to move forward with terminating TPS for Venezuelans, they offered no explanation for their decision, leaving the lower courts without guidance as the case continues.

On Friday evening, the high court published a decision that extends an injunction blocking the president from using the Alien Enemies Act to deport immigrants, a decisive blow to a key component of his mass-deportation agenda.

The Alien Enemies Act of 1798 is a wartime law that the president invoked back in March as the basis for summary deportations without due process. He used the act to justify deporting Venezuelan migrants to a mega-prison in El Salvador, accusing them of being gang members without providing any evidence. On March 15, over 200 men were deported under the law, in violation of U.S. District Judge James E. Boasberg’s order. In April, the Supreme Court overturned Boasberg’s order, holding that the migrants had sued in the wrong court. But SCOTUS also unanimously affirmed that migrants must be given due process before they are expelled under the Alien Enemies Act.

In the wake of that decision, a group of Venezuelan men in immigration custody and at risk of immediate deportation sued the Trump administration to prevent their removal under the act. They took their request up to SCOTUS, which responded with a short order, released at 1 a.m., instructing the government to halt the planned deportations. Last Friday, the justices followed up with a full decision in which they affirmed that under the Fifth Amendment, immigrants are entitled to due process in removal proceedings and “must have sufficient time and information to reasonably be able to contact counsel, file a petition, and pursue appropriate relief.”

Up to this point, the government had been giving migrants 24 hours’ notice ahead of their deportation to El Salvador. These eleventh-hour notices, the court noted, were “devoid of information about how to exercise due process rights to contest that removal,” and therefore failed to comply with the Fifth Amendment. The majority left it to the lower courts to determine exactly what process must be given to migrants but made it clear that the government’s current practices fall far short of constitutional standards. It declined to answer the broader question of whether the Alien Enemies Act can even be used to deport alleged members of a gang, though Justice Brett Kavanaugh urged the court to answer that question soon.

The Trump administration has begun fining immigrants who lack permanent legal status for remaining in the country after receiving a removal order, a tactic it used during the president’s first term in office. So far, more than 4,000 people have received notices for these financial penalties, which total over $500 million, according to Reuters.

The Immigration and Nationality Act does grant Immigration and Customs Enforcement the authority to impose fines on immigrants who ignore removal orders, but the penalty cannot exceed $500 a day. One of Trump’s executive orders also instructed DHS to collect “all fines and penalties” from those who lack permanent legal status, but in March the agency claimed that it would charge “$998 per day if you received a final order of removal and stayed.”

According to immigration attorneys who spoke to Reuters, the federal government has rarely invoked the power to fine immigrants, with a New York–based immigration lawyer remarking that one of his clients, who has lived in the U.S. for 25 years, has received a $1.8 million fine. “At first you look at something like this and think it’s fake,” he said. “I’ve never seen a client receive anything like this.”

An immigrant named Maria, who lives in Florida, also received a $1.8 million fine, telling CBS News, “Ever since that day I live with anxiety. … I can’t sleep. … I don’t feel.” She added, “I don’t want to go back.” She said she has lived in the U.S. for two decades and has three children who are all U.S. citizens. Her attorney plans to appeal the fine.

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