Are U.S. District Court Judges Running Amok?

Reuters recently reported that, “Trump and his allies have called judges who have ruled against his administration as ‘activists,’ ‘crooked,’ ‘conflicted’ and ‘rogue.’” Are trial-level, U.S. district court judges really running amok in opposing the administration’s immigration policies? Here’s what happened after the Supreme Court issued its recent high-profile “third country” removal order that led administration supporters to reach that conclusion.

DHS v. D.V.D

You’ve likely heard about DHS v. D.V.D., even if you aren’t familiar with the case name.

On Monday, the Supreme Court issued a six-three opinion in D.V.D. in which a majority of the justices stayed an April 18, 2025, preliminary injunction imposed by Judge Brian Murphy of the U.S. District Court for the District of Massachusetts that impeded the administration’s ability to deport aliens to third countries, i.e., a country not the alien’s nation of nationality, birth, or permanent residence.

That preliminary injunction had required DHS to: give written notice to any alien under a final order facing removal to a third country; provide those aliens an opportunity to raise a claim they would be tortured in that third country; move to reopen an alien’s immigration court case if the alien had shown a “reasonable fear” of harm in that third country; and give those aliens 15 days prior to removal to move to reopen their cases if DHS didn’t find they had a reasonable fear.

In addition, Judge Murphy certified a class of aliens facing removal to such third countries who could take advantage of the foregoing requirements, in apparent contravention of language in section 242(f) of the Immigration and Nationality Act (INA) that appears to say only the Supreme Court can issue class-wide injunctive relief.

DHS’s Authority for Third-Country Removals

Congress specifically permits DHS to remove aliens to countries other than those designated in removal orders, including to third countries.

Generally, though, aliens are only sent to third countries in two situations: their countries of removal are “recalcitrant”, meaning they won’t take back their deported nationals; or the aliens have been granted a limited form of protection, either “statutory withholding” of removal under section 241(b)(3) of the Immigration and Nationality Act or withholding or deferral of removal under the Convention Against Torture (CAT).

When immigration judges grant aliens statutory withholding or CAT, they must first order the aliens removed and then issue orders barring DHS from removing those aliens to a specified country or countries.

If that process sounds familiar, it’s because statutory withholding was the protection Kilmar Abrego Garcia received from an immigration judge in Maryland, in an exceptionally vague and poorly drafted October 2019 order.

The Limitations on Statutory Withholding and CAT Protection

Nothing prevents DHS from sending aliens under final removal orders to third countries (again, Congress has expressly authorized the practice), and given the limited benefits afforded by statutory withholding and CAT, both forms of protection assume beneficiaries will be sent to any third country that will take them.

In fact, the regulation governing statutory withholding states: “Nothing in this section … shall prevent [DHS] from removing an alien to a third country other than the country to which removal has been withheld or deferred”; while the regulation governing CAT provides that DHS can even send beneficiaries of that protection to countries from which removal was withheld or deferred, if the State Department (DOS) receives assurances the aliens won’t be tortured there.

The March 30 “Third Country” Guidance from the DHS Secretary

And nothing in the INA or the regulations requires DHS to provide any notice to an alien facing removal to a third country.

Despite that, on March 30, DHS Secretary Kristi Noem issued guidance on how to handle third-country removals.

That guidance requires ICE, CBP, and USCIS officers who are attempting to remove an alien to a third country to first determine whether DOS has received assurances that the alien will not be persecuted or tortured there.

If no such assurances have been issued, or DOS doesn’t think the assurances are credible, DHS must then tell those aliens they are being removed to a third country and refer them to USCIS asylum officers within 24 hours for a fear screening if they assert a fear of persecution or harm.

If those aliens are found to have a fear, the asylum officers must send their cases to immigration court for review if they haven’t been in removal proceedings. If they were ordered removed following removal proceedings, ICE will either file a motion to reopen with the immigration court or designate another country of removal.

Again: Nothing in the INA or the regulations requires any of the reviews mandated in the Noem guidance.

Judge Murphy’s May 21 Order and Memorandum

Still, it wasn’t enough to satisfy Judge Murphy, who not only issued the restrictions on third-country removals in his April 18 order, but who then issued a separate May 21 “Order on Remedy for Violation of Preliminary Injunction”.

In a separate May 21 memorandum, Judge Murphy concluded DHS had failed to provide “six non-citizen class members” a “meaningful opportunity” to make CAT claims before the department attempted to send them to South Sudan, finding they had only been given a 24-hour heads-up.

That seems like a “reasonable opportunity” for aliens facing third-country removal to make a claim to DHS, but in that memorandum, Judge Murphy required DHS to give such aliens at least 10 days notification before a third-country removal to make a CAT claim, essentially modifying his April 18 order.

The First Circuit Denial and Briefing Order

At this point I should explain that on April 22 — a month before that order and memorandum were issued — DOJ sought a stay pending appeal of Judge Murphy’s April 18 order from the First Circuit.

The First Circuit denied an emergency stay on May 16, while setting the government’s appeal for briefing, which logically should have divested Judge Murphy of authority to issue any further orders in D.V.D. — like the ones on May 21.

Thereafter, on May 27, DOJ filed an application for a stay of Judge Murphy’s April 18 injunction with the Supreme Court, and as noted at the outset, on June 23, a majority of the justices issued an order granting that stay “pending the disposition of” DOJ’s appeal in First Circuit.

Justices Sotomayor, Kagan, and Jackson dissented from that decision, with the former writing a lengthy explanation of the trio’s bases for dissenting.

On page 12 of that dissent, Justice Sotomayor asserted that the May 21 orders were “not properly before” the Court “because the Government has not appealed them, nor sought a stay pending a forthcoming appeal” — even though those orders modified the injunction that was before the justices.

Judge Murphy’s June 23 Docket Order

The “six non-citizen class members” referenced in the May 21 memorandum are aliens currently being held at a U.S. military base in Djibouti (a country on the Horn of Africa just a few miles across the Bab al-Mandab Strait from Yemen) because their removal was halted mid-flight by Judge Murphy’s order that bars them from being released outside the U.S. government’s control.

Even the New York Times admits that all six (and two others there, one a South Sudanese national and a national of Myanmar who is on his way home) “have been convicted of violent crimes”.

Shortly after the Supreme Court issued its order, counsel for the six filed an “emergency motion” with Judge Murphy asking him to enforce the May 21 order and prevent their transfer to South Sudan, or alternatively for the court to issue individual temporary restraining orders in their cases.

Without apparently waiting for DOJ to respond, Judge Murphy took it upon himself to issue an electronic docket order, finding the May 21 order “remains in full force and effect, notwithstanding today’s stay of” his April 18 preliminary injunction by the Supreme Court — and citing to Justice Sotomayor’s dissent.

I trust you don’t have to have gone to law school to understand that while a well-reasoned dissent may have an impact in some future case, it has no effect on the case in which it has been issued.

“A Lawless Act of Defiance”

The next morning, DOJ was back in the Supreme Court to file a motion with the justices asking them to make clear that their order applied to all the injunctive orders Judge Murphy has issued, including the May 21 order and memorandum.

Here’s how that motion begins, with citations omitted and emphasis in the original:

Yesterday evening, just hours after this Court stayed the preliminary injunction in this case, the district court issued an order asserting that its related ruling enforcing that injunction “remains in full force and effect,” “notwithstanding todays [sic] stay of the Preliminary Injunction.” The district court claimed that the several “individuals” whose removal it previously halted mid-flight — and whose resulting detention in Djibouti in precarious circumstances was a focal point of the government’s stay application — remain subject to its order enforcing the very injunction that this Court stayed yesterday. That is untenable.

It continues:

The district court’s ruling of last night is a lawless act of defiance that, once again, disrupts sensitive diplomatic relations and slams the brakes on the Executive’s lawful efforts to effectuate third-country removals. For over two months now, the Executive has labored under an injunction that this Court yesterday deemed unenforceable. This Court should immediately make clear that the district court’s enforcement order has no effect, and put a swift end to the ongoing irreparable harm to the Executive Branch and its agents, who remain under baseless threat of contempt as they are forced to house dangerous criminal aliens at a military base in the Horn of Africa that now lies on the borders of a regional conflict. [Emphasis added.]

The Ironic Senate Vote for Confirmation

At the time of this writing, the government’s motion remains pending with the Supreme Court, but by this point you may be a little curious about the district court judge who issued the orders.

Judge Murphy was nominated to be a judge by President Biden in March 2024.

His nomination was reported out of the Senate Judiciary Committee a month later, but not brought to the floor of the Senate for a final vote until December 2 — four weeks after the November 5 presidential election, and a month before the GOP took control of the chamber.

Judge Murphy was confirmed on a party-line 47-45 vote, with eight senators not voting.

Four of those non-voting senators were Republicans — including then-Sens. J.D. Vance (Ohio) and Marco Rubio (Fla.). Had they voted with the rest of their GOP colleagues (and had the remaining four Democrats not voted), Judge Murphy’s confirmation would have failed.

We should cut that duo a break, given that both were then busy getting ready to take new jobs, but it’s the definition of “irony” now that Judge Murphy is vexing an administration in which Vance is vice president and Rubio secretary of State.

Of course, we should probably cut Judge Murphy a break, too — he’s new to the job, after all.

Are district court judges running amok in their efforts to block the Trump administration’s removal efforts? Look at the orders issued by the judge attempting to block DHS’s third-country removals of “violent” criminal aliens, and I’ll leave it up to you to decide.