SCOTUS ‘Benchslaps’ Recalcitrant Federal District Court Judge

My colleague George Fishman and I have analyzed the Supreme Court’s June 23 response to an order issued by U.S. district Judge Brian Murphy in D.V.D. v. DHS. That lower court order imposed onerous (and extra-statutory) burdens on the department in removing aliens to “third countries”, that is, nations that aren’t the alien’s country of birth, residence, or nationality. As I then noted, Judge Murphy quickly pushed back, and for his trouble has earned what’s called a “benchslap” from the Supreme Court that includes a concurrence by Justice Kagan — who dissented from the Court’s initial order. Dissenting Justice Sotomayor meanwhile fired a few salvos of her own in the direction of her majority colleagues.

Judge Murphy’s Initial Order

On April 18, 2025, Judge Murphy imposed a preliminary injunction that impeded the administration’s ability to deport aliens to third countries.

That preliminary injunction 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.

As I explained on June 25, there are two main scenarios in which DHS deports aliens to third countries: (1) the alien is a national of a “recalcitrant” country, that is a country that won’t accept its deported nationals; or (2) the alien has been granted a country-specific form of protection, i.e., “statutory” withholding of removal under section 241(b)(3) of the Immigration and Nationality Act (INA) or protection under the Convention Against Torture (CAT).

As Fishman made clear (in no small detail), Judge Murphy specifically focused on CAT protection, which is not actually provided for in the INA, but rather under the “Foreign Affairs Reform and Restructuring Act of 1998” (FARRA) and implemented by Clinton-era regulations at 8 C.F.R. §§ 208.16, 208.17, and 208.18 (hence the reference to withholding under section 241(b)(3) as “statutory withholding”).

In essence, Judge Murphy argued, DHS has an obligation not to return aliens to places where they’d be tortured (true), so it was fine for him to craft special rules for third-country removals (likely not so true).

March 30 “Third Country” Guidance from the DHS Secretary

The latter point is true because it’s the policy of the United States under FARRA not to send anyone to a place they’ll be tortured, and not so true because nothing in that act, the INA, or the regulations requires DHS to provide any special notice to an alien facing removal to a third country.

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

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

If assurances haven’t been received, or DOS doesn’t think the assurances are credible, DHS must inform those aliens they are being deported to a third country and refer them to USCIS asylum officers within 24 hours for a 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 third country of removal.

DOJ Appeals

In his April 18 order, Judge Murphy concluded that a one-day heads-up was not enough notice for an alien facing a third-country removal to make a CAT claim.

DOJ disagreed with that conclusion on a number of grounds, and on April 22, filed a notice of appeal with the First Circuit, and sought an emergency stay pending appeal of Judge Murphy’s April 18 order from that court.

The First Circuit denied an emergency stay on May 16, but set the government’s appeal for briefing on a number of questions it included in its order denying the stay.

May 21 Order and Memorandum

That appeal schedule logically would have divested Judge Murphy of authority to issue any further orders in D.V.D., but nonetheless, on May 21 he issued a separate “Order on Remedy for Violation of Preliminary Injunction”.

In a separate memorandum issued with that latter order, 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 notice.

Six days later, 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 (six) of the justices issued an order granting that stay “pending the disposition of” DOJ’s appeal in First Circuit.

Justice Kagan was not in the majority on that order, but rather signed onto a dissent authored by Justice Sotomayor, which ended as follows:

Apparently, the Court finds the idea that thousands will suffer violence in farflung locales more palatable than the remote possibility that a District Court exceeded its remedial powers when it ordered the Government to provide notice and process to which the plaintiffs are constitutionally and statutorily entitled. That use of discretion is as incomprehensible as it is inexcusable. Respectfully, but regretfully, I dissent.

Strong stuff, but perhaps Justice Kagan should have written separately given that in that dissent Justice Sotomayor also asserted that Judge Murphy’s May 21 “remedial orders” were “not properly before” the Court “because the Government has not appealed them, nor sought a stay pending a forthcoming appeal” — even though that order simply modified the injunction that was before the justices.

The June 23 District Court Docket Order, and DOJ’s Backlash

Counsel for the six aliens to whom that May 21 order applied saw an opening, and directly after the Supreme Court issued its order, filed an “emergency motion” with Judge Murphy asking him to enforce the May 21 order and prevent their transfer to South Sudan, or alternatively to issue individual temporary restraining orders in their cases.

Judge Murphy quickly issued an electronic docket order that same day, finding his May 21 order “remains in full force and effect, notwithstanding” the Supreme Court’s stay of his April 18 preliminary injunction by the Supreme Court, citing to Justice Sotomayor’s dissent.

The next day, DOJ went back to the Supreme Court, slamming Judge Murphy’s June 23 order as “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”, and asking the Court to clarify its earlier order.

Kagan Joins the Majority, and Sotomayor “Dials” It Up a Notch

On July 3, the Supreme Court responded with a second order in D.V.D., with the majority clarifying that its earlier order “stayed the April 18 preliminary injunction in full”, and explaining that Judge Murphy’s May 21 order “cannot now be used to enforce an injunction that our stay rendered unenforceable”.

The vote this time was 7-2, with Justice Sotomayor writing in dissent for herself and for Justice Jackson as she unloaded on her colleagues in the majority:

“In a democracy, power implies responsibility. The greater the power that defies law the less tolerant can this Court be of defiance. As the Nation’s ultimate judicial tribunal, this Court, beyond any other organ of society, is the trustee of law and charged with the duty of securing obedience to it.” This Court continues to invert those principles. Today’s order clarifies only one thing: Other litigants must follow the rules, but the administration has the Supreme Court on speed dial. [Citation omitted; emphasis added.]

The majority gently fired back, noting that, “Despite the dissent’s provocative language … a claim that a lower court has failed to give effect to an order of this Court is properly addressed here.”

It’s likely good the justices went on a three-month hiatus after issuing this order, because they may need a little “alone time”.

Justice Kagan wrote her own separate concurrence with the majority order and adopted her own measured tone.

She explained that she continues to believe the majority should have denied the government’s earlier stay request but given that “a majority of this Court saw things differently”, she doesn’t “see how a district court can compel compliance with an order that this Court has stayed”.

The majority found it had “no occasion to reach” DOJ’s suggestion that it reassign D.V.D. away from Judge Murphy, “’[a]ssuming as we do’ that the District Court will now conform its order to our previous stay”. The judge would do well to accept this benchslap and not come back for a second helping.