Trump Admin Misleads Supreme Court in South Sudan Deportation Case

Donald Trump’s administration has appealed to the Supreme Court, asking the justices to bless his effort to deport a group of migrants to South Sudan, a war-torn African country, with little notice and in express violation of a judge’s order.

The high court has already smacked down the administration’s efforts to conduct rapid deportations without due process twice now. This time, Trump’s Department of Justice is trying to persuade the justices to undermine the rule of law, with a misleading brief that is undercut both by the judicial record as well as flight-tracking data reviewed by Rolling Stone.

A Massachusetts federal judge, Brian Murphy, previously issued an order barring the Trump administration from deporting people to third-party countries, or nations where they are not from, without a “meaningful opportunity” to demonstrate that they fear being persecuted, tortured, or killed if they were sent there. The judge also required the administration to give people at least 15 days of notice to challenge their removals.

When the Trump administration moved to deport a group of detainees to Libya, an exceedingly dangerous country, without giving them an opportunity to raise fear-based objections, the judge clarified that would violate his order. Last week, the Trump administration began the process of sending a group of men to South Sudan, another dangerous country, with less than 24 hours of notice — leading the judge to find that officials had violated his order and demand the government maintain custody of the migrants so they have an opportunity to object to being sent there. 

Murphy did not demand the administration bring the men back, allowing officials to pick where to hold them as they move to comply with his order. They are currently being held at a military base in Djibouti, in east Africa. 

An attorney for the men told Rolling Stone on Thursday morning that her team still had not been given phone access to their clients, one of the conditions of last week’s ruling.

On Tuesday, Trump’s Justice Department bypassed the U.S. Court of Appeals for the First Circuit as it filed an emergency brief at the Supreme Court. The administration argued in the brief that Murphy’s orders are causing “irreparable injury in the diplomatic, immigration, and foreign-policy spheres.” 

In a brief to the Supreme Court, Trump’s Solicitor General John Sauer writes: “Having slammed on the brakes while these aliens were literally mid-flight — thus forcing the government to detain them at a military base in Djibouti not designed or equipped to hold such criminals — the court then retroactively ‘clarified’ its injunction to impose an additional set of intrusive and onerous procedures on DHS. As a result, the United States has been put to the intolerable choice of holding these aliens for additional proceedings at a military facility on foreign soil — where each day of their continued confinement risks grave harm to American foreign policy — or bringing these convicted criminals back to America.

Sauer, who previously served as Trump’s personal lawyer, represents the current situation as a burden put upon the government by Judge Murphy, and dubiously claims that the judge forced the Department of Homeland Security (DHS) to detain the men in Djibouti. In reality, as Judge Murphy wrote in a memorandum this week, “this is the result Defendants asked for.” His order had left “the practicalities of compliance to defendants’ discretion.”

“I honestly think that this is a sanctionable brief,” immigration attorney Aaron Reichlin-Melnick wrote on X on Tuesday. “It falsely claims that the District Court ‘forc[ed] the government to detain [8 men] at a military base in Djibouti.’ This is false. As Judge Murphy himself repeatedly emphasized, it was the DOJ that requested the option of holding them overseas!”

The government’s description of the sequence of events is further undermined by Rolling Stone’s real-time tracking of the Gulfstream V jet that flew the men from Texas to Djibouti last week. (The flight was first noticed by former reporter and flight attendant Gillian Brockell, who saw that a plane that had previously flown high-level government missions took off from Harlingen, Texas, late Tuesday morning, at approximately the same time the men’s lawyers found out from their clients that they would be sent to South Sudan.) 

Judge Murphy held two emergency hearings last Tuesday night and Wednesday mid-day, responding to the migrants’ lawyers’ emergency filing notifying the court that their clients had been given less than 24 hours notice that they would be deported to South Sudan. 

During the hastily-convened hearing on Tuesday night, Judge Murphy ordered the Justice Department to find out where the plane was and tell everyone involved in the flight that they could face criminal contempt sanctions if his earlier order barring rapid deportations to third-party countries wasn’t followed. 

At 8:55 p.m. Tuesday night, when Judge Murphy filed his order requiring the government to maintain custody of the men, the Gulfstream V was still over the Atlantic Ocean, and the plane was closer to U.S. soil than Africa, according to Rolling Stone’s review. 

We were able to follow the plane’s trajectory to a stop at Shannon Airport in Ireland at approximately 9:30 p.m. Tuesday night, presumably for refueling, where it sat for almost three hours before taking off and continuing toward Djibouti.

The plane ultimately landed at Djibouti-Ambouli International Airport, a shared military and civilian airport, at 9:54 a.m. on Wednesday morning, according to Rolling Stone’s live tracking of the flight. 

Wednesday’s court hearing in the case, scheduled for 11 a.m., started late, and by the time Judge Murphy made what the Justice Department called his clarification of his injunction, some time after noon, the plane had been sitting on the Djibouti airport tarmac for over two hours, according to Rolling Stone’s tracking. 

In that hearing, the plaintiffs asked for the men to be returned to the U.S. for the period of due process, according to independent law news site LawDork’s live updates of the hearing, but the judge allowed the Justice Department to offer its own “remedy” to the situation and asked DOJ attorney Drew Ensign for a suggestion.

“Any remedy should be narrowly tailored. If they weren’t given meaningful opportunity to express fear, give them that opportunity. No need to bring them back,” Ensign said, according to LawDork’s transcript. 

“Are you suggesting they have a reasonable fear interview where they are now? Is that practical,” the judge asked Ensign, who replied that he would consult with his client and report back. Later in the hearing, the DOJ reported to the judge that it was in fact possible for the men to do their credible fear interviews where they were, in Djibouti, later in the hearing.

In his ruling last Wednesday, Judge Murphy wrote, “DHS, in its discretion, may elect to provide this process to the six individuals either within the United States — should it choose to return them to the United States — or abroad, if at all relevant times DHS retains custody and control over the individuals in conditions commensurate to those the individuals would be housed in were they still in DHS’s custody within the United States. This order reflects a remedy, in light of the court’s finding of a violation of its preliminary injunction, that has been narrowly tailored in accordance with principles of equity.”

Secretary of State Marco Rubio filed a declaration to Murphy two days later, part of the government’s appeal, arguing that the men’s detainment in Djibouti had “negative consequences to important U.S. strategic interests, including in Libya, South Sudan and Djibouti.” Rubio claimed that Judge Murphy’s order threatened to negatively impact the relationship between the U.S. and South Sudan, making “moving humanitarian relief — food, medicine, etc. — into the region … more difficult.” 

Meanwhile, humanitarian relief in South Sudan has been notably devastated by Trump’s effort to gut foreign aid.

DHS did not respond to requests for comment. The Justice Department did not immediately respond to outreach from Rolling Stone.

The Trump administration flew eight men to Djibouti, but one is a South Sudanese national and another will be deported to his home nation of Myanmar, the government said. That leaves six men subject to order for a reasonable timeframe to raise fear of torture. The men — from Myanmar, Laos, Vietnam, Cuba, Mexico and South Sudan — were all previously convicted of violent crimes.

The plane that flew them to Djibouti is registered to two related Florida private charter companies Tannjets and Journey Aviation

Tannjets and Journey Aviation were both founded by a pilot who founded the first private airline in Uzbekistan after the fall of the Soviet Union. An executive at Journey Aviation told Rolling Stone they had no idea if their plane was involved in the South Sudan deportation flight last Wednesday.

The narrative that Judge Murphy “forced” the government to go to Djibouti began taking shape last week. On Thursday White House spokesperson Karoline Leavitt said “Now these illegal criminal murderers and rapists have to sit in Djibouti with our ICE agents who now have to sit there for more than two weeks. it’s truly despicable what’s happening in our court system and the president hopes that the Supreme Court will do what it needs to do” during a press conference.

Later that day, The State Department spokesperson Tammy Bruce further distorted the events, saying “I would also point you to Karoline Leavitt’s remarks the hour before my briefing here, where she noted a court order required the flight to go to Djibouti” during a State Department briefing.

Civil unrest in South Sudan deteriorated to the extent that the U.S. ordered all non-emergency staff to leave the country in March. The State Department warns: “Do not travel to South Sudan due to crime, kidnapping, and armed conflict.”

The department’s 2023 report on human rights practices in South Sudan found credible reports of “arbitrary or unlawful killings, including extrajudicial killings; enforced disappearance; torture or cruel, inhuman, or degrading treatment or punishment by security forces, opposition forces, armed militias affiliated with the government and the opposition, and ethnically based groups; harsh and life-threatening prison conditions; [and] arbitrary detention.” 

Supreme Court Justice Ketanji Brown Jackson Jackson, who oversees the emergency docket for appeals in the First District, responded to the Trump administration’s emergency request on Wednesday, giving lawyers for the men sent to Djibouti a week to reply.