The Supreme Court this week stayed a lower-court order and let the Trump administration keep using third-country deportations, and Homeland Security’s top lawyer is spelling out why the tool matters.
DHS General Counsel James Percival told reporters the government often faces a stark option when a removable alien’s home country refuses to take him back: locate a willing third nation, or release a convicted criminal into an American community.
That dilemma sits at the center of the high-court fight. The justices left the administration’s guidance in place while they prepare to hear arguments in December over the procedures DHS must follow before such removals.
Percival framed the problem without soft edges. In comments to Fox News, he said the alternative to third-country removal is letting serious offenders walk free inside the United States.
“If the person is a child rapist and serves 20 years, we have two choices: Find a third country or let the child rapist go live in an American community.”
He added that securing those placements is hard diplomatic work. Friendly nations do not line up to accept every case.
“Imagine going to a country and saying, ‘Hey, we’ve got a guy, he’s not your guy, and he’s a rapist, but can he please live there?’ That’s not an easy ask. It requires significant diplomatic energy…. Norway is not taking a rapist from Cuba.”
Percival stressed that Congress already wrote the authority into law. The third-country provision appears in the Illegal Immigration Reform and Immigrant Responsibility Act of 1996, the major package signed by President Bill Clinton.
“It’s in the statute expressly that we can do this.”
He argued past administrations treated those powers too cautiously. Officials, he said, often act as if legal authority is too fragile to use.
“A lot of people in government sort of treat their authority like fine china. They’re afraid if they ever actually use it, someone will take it away. And if you’ve ever owned fine china, it’s like you can find yourself at the end of your life, and you were so afraid you would break it you never used it.”
The current approach, he said, is simply to revive tools already sitting in the immigration code rather than invent new ones.
Readers tracking the high court’s recent enforcement moves have seen similar pattern shifts, including when the Supreme Court restored a Trump-era SAVE tool for state voter citizenship checks.
The same logic applies here: use the law Congress already passed.
Lower-court restrictions had blocked rapid third-country removals. On Tuesday the justices stepped in and kept the administration’s guidance alive pending full review.
The New York Post reported the 6-3 decision stayed an injunction from Boston federal Judge Brian Murphy. The order remains in effect while the First Circuit considers the appeal. The litigation has involved migrants with convictions for murder, arson, robbery, and sexual assault who had been moved toward places such as South Sudan and held in Djibouti.
DHS spokeswoman Tricia McLaughlin called the high-court action “a victory for the safety and security of the American people.” Justice Sonia Sotomayor dissented, writing that “in matters of life and death, it is best to proceed with caution.”
Separate coverage noted the practical scale. The Reuters account stated the court allowed the administration to resume third-country deportations without first giving every migrant a new chance to claim potential harm, while agreeing to full arguments in December. More than 25,000 migrants have already been sent to 29 countries under the policy, most of them to Mexico.
Percival himself described the ruling in blunt terms as “a bad day for criminal illegals and open-borders activists alike.”
The high court has shown a willingness to intervene quickly in other enforcement fights as well, recently clearing the way when the Supreme Court lifted a stay clearing Tennessee to execute Christa Pike.
That same readiness to act appears in the deportation stay.
The policy targets removable aliens whose own governments will not accept them. Percival has highlighted cases through a public “Daily Deportee” series, including Burmese national Kyaw Mya, whose home country will not take him back.
A 2001 Supreme Court decision in the case of Kestutis Zadvydas still shapes the pressure. Zadvydas was a stateless legal resident ordered deported because of his criminal record. Neither Lithuania nor Germany would accept him. The court held that six months of post-removal detention is presumptively reasonable; after that, continued detention can be challenged if removal is not reasonably foreseeable.
Without a third-country landing spot, the practical result can be release.
Just The News reported that the Supreme Court issued a one-page order permitting the administration to resume the removals while litigation continues, after the Justice Department filed an emergency stay request. Oral arguments are set for December. Attorney General Todd Blanche called the policy “an entirely legal and invaluable tool to stem the tide of illegal immigration.”
Percival pointed to one planned case feature of a migrant who tried to kill someone, saw the gun misfire, then pistol-whipped the victim instead. The man served time, was released, and, in Percival’s account, was not removed by the Bush administration before allegedly reoffending.
“[He] tried to kill somebody, the gun misfired, so he pistol-whipped them instead. He served time for that. He got out.”
Homeland Security Secretary Markwayne Mullin has kept a separate incentive on the table. Percival noted the message to removable aliens who still have a path home.
“It’s not too late to get $3,000 and a flight home.”
One documented arrangement sent $7.5 million from Washington to the government of Equatorial Guinea, the small Atlantic-coast nation long led by President Teodoro Obiang, in exchange for accepting third-country deportees.
Human rights advocates have pointed to allegations that some deportees were beaten by authorities there. The administration defends the removals as lawful and necessary to keep criminal aliens out of U.S. neighborhoods. Percival addressed the quality-of-life comparison directly.
“I’d rather live in the United States than Equatorial Guinea too, but I’m an American citizen, and I haven’t killed anybody.”
Broader numbers have also emerged. Breitbart reported the 6-3 order stays the lower-court block and that the administration has reached agreements with as many as 31 nations at a cost of at least $410 million, with more than 25,000 migrants already moved, mostly to Mexico. Acting Attorney General Todd Blanche said the stay confirms an “entirely lawful and a critical tool for immigration enforcement.” Attorney Trina Realmuto, representing migrants, countered that the ruling “puts people at immediate risk of being sent to places where they face persecution before they ever get to make their case.”
The case before the justices does not squarely challenge DHS’s underlying statutory power. It focuses on the procedures the agency must follow beforehand, whether those steps satisfy federal immigration law, due process, and safeguards against torture.
National Review argued the Court’s conservative majority stood on solid ground in staying what it called a lawless order from a federal district judge in Massachusetts that effectively barred third-country removals. The piece maintained that illegal aliens should bear the burden of a problem of their own making.
Court-watchers have also followed other high-profile personnel and docket moves this term, including when Alito stepped aside from a major Supreme Court climate liability case.
Those dynamics matter less to neighborhoods than the core operational question Percival keeps repeating.
Third-country removals are used when a removable alien cannot be returned home or the home country simply refuses. The alternative, under existing detention limits, can be release into the same towns and cities that already absorb the costs of crime and disorder.
Percival’s public case is that the statute gives DHS the tool, diplomacy can open the destinations, and declining to use the authority leaves American communities holding the risk.
The December arguments will test the procedural guardrails. Until then the stay keeps the guidance in effect.
The high court has also been asked to step into other fast-moving political disputes, such as when the Supreme Court took up the Missouri redistricting fight for a third time as voters already cast ballots.
Immigration enforcement, however, turns on a simpler daily reality: when a foreign government will not reclaim its own criminal nationals, someone has to decide where those people live next.
American communities should not be the default dumping ground for offenders other countries reject. The law already supplies a better answer, if officials are willing to use it.
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