A federal judge spent a year blocking Trump from deporting rapists and murderers to third countries.
This week the Supreme Court stepped in and handed DHS its authority back, at least for now.
DHS's top lawyer just explained in blunt terms why Norway won't take a rapist from Cuba.
A Judge Who Called His Own Policy Fight "Unlawful" Just Got Overruled
Boston federal judge Brian Murphy ruled in February that DHS has to give migrants notice and a real chance to object before shipping them to a third country.
Murphy, a Biden appointee, accused the Trump administration of feeding his courtroom false information about where deportees were actually headed.
The First Circuit Court of Appeals backed him up in September.
On September 29, the Supreme Court's conservative majority wiped that ruling off the board in a 6 to 3 order.
Sotomayor, Kagan, and Jackson dissented, but they didn't have the votes.
DHS General Counsel James Percival didn't wait for the ink to dry before going public.
"Norway is not taking a rapist from Cuba," Percival told Fox News Digital.
Washington Had This Power for 30 Years and Was Too Scared to Use It
Trump didn't invent third-country removal.
Congress handed the government this exact power in 1996, and Bill Clinton signed it.
Then nothing. For almost thirty years, Republicans and Democrats alike left it on the shelf, and Percival says that's exactly why criminal aliens kept ending up back in American communities instead of gone for good.
Percival's own metaphor explains why: Washington handled this authority like an heirloom nobody would risk using, more worried about breaking it than about what not using it cost everyone else.
Trump's DHS decided the heirloom is for using.
Homeland Security Secretary Markwayne Mullin backs it with one offer to anyone here illegally – take $3,000 and a flight home, or take your chances.
The Loophole a Lithuanian Criminal Built and Lawyers Have Hidden Behind Ever Since
Here's the trick DHS just closed. Back in 2001, the Supreme Court sided with Kestutis Zadvydas, a Lithuanian-born criminal with no country willing to claim him, ruling Washington can't hold someone indefinitely just because nobody will take him off its hands.
Good ruling, on paper. Terrible in practice.
For 25 years, defense attorneys have leaned on Zadvydas v. Davis as a release valve for convicted criminals – argue no country wants your client, and a judge has to cut him loose.
Percival just found the other half of that equation: if a willing country exists, DHS can send the criminal there instead of turning him loose at all.
The Choice Murphy's Ruling Forced on Every Judge in the Country
This is the choice nobody on the left wants to say out loud – find a country willing to take a child rapist, or hand him a bus ticket to your town.
Percival has a case that shows exactly what that looks like – a migrant convicted of a violent crime who served his time, wasn't deported when the Bush administration had the chance, and after his release allegedly attacked someone again, beating the victim with a gun that had jammed.
That's not a hypothetical scenario dreamed up to score points.
That's the status quo Judge Murphy tried to freeze in place for a year while his case worked through the courts.
Every month third-country removals stay blocked is another month some judge has to decide whether a convicted criminal gets released into a Florida or Texas neighborhood because his own country won't take him.
The Supreme Court doesn't hear arguments on the merits until December, so this fight isn't over.
But for right now, the judges who spent a year making it harder to remove violent criminals just lost, and DHS finally gets to use a law Congress gave it thirty years ago.
Sources:
- Charles Creitz, "DHS exposes dilemma behind SCOTUS deportation fight: 'We have two choices,'" Fox News, October 3, 2026.
- Zadvydas v. Davis, 533 U.S. 678 (2001).
- Staff, "Deportation Showdown Escalates After Court Halts Trump Policy," The Daily Signal, March 12, 2026.
- Associated Press, "Supreme Court lets Trump continue deporting people to third countries while justices weigh policy," September 29, 2026.
