The Trump administration has turned to the U.S. Supreme Court in an attempt to reinstate a controversial immigration policy, recently deemed unlawful, that aims to deport immigrants to countries they are not originally from without due process.

At the end of last month, U.S. District Judge Brian E. Murphy, appointed by President Joe Biden, ruled against the Department of Homeland Security’s (DHS) “third-country” policy. He found it violated fundamental due process rights and declared the policy illegal in response to a class action lawsuit. The judge also issued a temporary 15-day suspension of his judgment to allow the government time to seek a stay from the U.S. Court of Appeals for the 1st Circuit.

The U.S. Department of Justice has now filed a 38-page emergency motion seeking a stay pending appeal. The motion argues that previous attempts by Judge Murphy to halt this policy were twice overturned by the Supreme Court and should meet the same fate now.

It’s worth noting that Murphy’s earlier actions to block the policy involved preliminary injunctions, whereas the latest ruling came after considering summary judgment motions from both plaintiffs and defendants.

Although the recent order differs procedurally, the stay motion insists the appeals court should still side with the DHS.

“After dissolving that preliminary injunction, the district court immediately replaced it with equally sweeping final relief vacating DHS’s policy and entering declaratory relief mirroring the earlier injunction,” the motion asserts. “This Court must consider the Supreme Court’s prior stay orders when determining whether to stay the district court’s final judgment, and they call for the same relief here.”

In the underlying case, four detained men challenged the policy as in violation of the Immigration and Nationality Act (INA) and the due process clause of the U.S. Constitution. DHS then attempted to deport eight men to South Sudan — men who are not Sudanese nationals – and the case snowballed. After a series of court orders, those men were detained on a U.S. military base in the East African country of Djibouti.

Over several months last year, the judge issued a series of opinions which culminated in a national injunction barring the policy.

The stream of court orders in the case was steady — six from the district court; two from a court of appeals — and responsive to the Trump administration’s continued efforts to conduct such deportations. Murphy repeatedly rebuked the government — reiterating and clarifying orders; certifying the class to broaden the scope of relief — after immigrants were sent to El Salvador on two separate occasions in violation of another judge’s orders.

The district judge even jousted a bit with the U.S. Supreme Court. The government moved for a stay with the nation’s high court in May 2025. A majority granted the stay in June 2025. Undeterred, Murphy said the stay had no effect on a remedial order the district court issued after finding the government had repeatedly violated multiple court orders. In July 2025, however, the high court’s majority struck down the remedial order over a dissent by Justice Sonia Sotomayor.

But all of those prior disputes were unfolding on preliminary matters — and did not concern the actual merits of the case.

In the government’s motion, the DOJ pillories Murphy for committing “serious legal errors that justify an immediate stay.”

Chief among those alleged errors, the Trump administration claims the court’s vacatur — or “set-aside” — ruling violates a federal statute that limits the ability of lower courts to “to enjoin or restrain the operation” of “covered provisions” of immigration law.

Here, the government is arguing the statutory reference to an injunction or a restraining order “precludes coercive relief that compels or prohibits the Executive’s operation of the covered provisions.”

“Although vacatur of an agency decision can be a ‘less drastic remedy’ than an injunction in some respects, vacatur still prohibits the agency from giving effect to its guidance,” the motion goes on. “A district court therefore necessarily ‘restrain[s] the operation of’ the covered INA provisions when it vacates agency guidance implementing them.”

The government concedes the lower court’s order is “not titled an ‘injunction,’” but insists “the relief issued by the district court still runs afoul” of the broader prohibition because of its impact on Immigration and Customs Enforcement (ICE) operations.

And, the DOJ’s argument continues, deportation authority is a provision of law covered by the statutory limits on lower courts.

“The district court’s order creates an unworkable scheme that materially impairs the ability of the government to enforce the immigration laws,” the motion continues. “As was the case with the preliminary injunction, the district court’s relief would cause massive operational disruption. Removing aliens to third countries often involves tight timing and sensitive diplomatic coordination. The district court’s tool for delay gives aliens the ability to thwart this delicate process.”

The motion further attacks Murphy on the merits for “judicial second-guessing.” This argument attacks a section of the order which directs ICE “to first seek removal to that class member’s designated country of removal or country or countries of citizenship, if any.”

In effect, the DOJ is accusing Murphy of micromanaging decisions which are simply beyond his remit as a district court judge.

Rather, the DOJ argues, choosing removal countries rests on “foreign policy determinations within the Executive Branch’s discretion.”

“Such determinations turn on national security and foreign policy considerations vested in the Executive’s exclusive discretion and as to which the alien can raise no claim,” the motion goes on. “Far from being ‘reluctant to intrude upon th[is] authority,’ the district court inserted itself into this process by holding that due process requires additional procedures.”

The stay motion ends by referring again to the Supreme Court’s earlier rulings dissolving Murphy’s prior injunctions.

From the filing, at length:

As the Supreme Court has already necessarily determined, the district court’s order preventing the government, on a nationwide basis, from implementing its policies for third-country removals irreparably harms the government and contravenes the public interest….An injunction that prevents the Executive Branch from carrying out its broad authority over immigration matters is “an improper intrusion by a federal court into the workings of a coordinate branch of the Government.”…With a single order, a single district court has interfered with the execution of an unknown number—perhaps thousands—of pending removal orders and risks irreparably harming the Executive’s ability to negotiate the removal of aliens to third countries.

“Accordingly, the district court’s erroneous, overbroad, coercive order irreparably harms the government and threatens the public interest. The Court should stay it immediately,” the motion concludes.