Federal law states that the United States shall not “expel, extradite, or otherwise effect the involuntary return of any person to a country in which there are substantial grounds for believing the person would be in danger of being subjected to torture.” This law implements a treaty, known as the Convention Against Torture, which the United States ratified more than three decades ago.
Federal regulations, moreover, provide that even after an immigration judge has determined that a noncitizen may be deported to another country, that judge’s order “shall not be executed in circumstances that would violate Article 3 of the United Nations Convention Against Torture.” And those regulations also establish a process that immigrants can use to raise concerns with an immigration judge that they may be tortured if sent to a specific country.
The Trump administration, however, claims it has discovered a loophole that renders all of these legal protections worthless, and is now asking the Supreme Court to explicitly give it the authority to make use of that loophole in order to enact its immigration policies.
According to President Donald Trump’s lawyers, the administration can simply wait until after an immigration judge has conducted the proceeding that ordinarily would determine whether a particular noncitizen may be deported to a particular country, and then, if that noncitizen is allowed to be deported, announce that the immigrant will be deported to some previously unmentioned country — even if that immigrant reasonably fears they will be tortured in that nation.
Department of Homeland Security v. D.V.D., the case where the Trump administration asks the justices to neutralize the Convention Against Torture, is unlike some of the more high-profile deportation cases that reached the Supreme Court — such as the unlawful deportation of Kilmar Armando Abrego Garcia to El Salvador — in that no one really questions that the immigrants at the heart of this case may be deported somewhere.
D.V.D. involves immigrants who have gone through the ordinary process to determine whether they can be removed from the country. The Trump administration even claims that some of them were convicted of very serious crimes. According to the administration, “all were adjudicated removable.”
But the Convention Against Torture and the federal law implementing it forbid the government from deporting anyone to a country where there is good reason to believe they will be tortured. And federal immigration law and regulations lay out the process that should be used to determine if an immigrant may be deported to a particular country.
How immigration hearings are supposed to work
As the district judge who heard this case explained in his opinion ruling that Trump must comply with the Convention Against Torture, when the government wishes to deport a noncitizen, that individual is typically entitled to a hearing before an immigration judge. That hearing determines “not only whether an individual may be removed from the United States but also to where he may be removed.”
In these proceedings, the immigrant is given an opportunity to name where they want to be deported to, if the immigration judge determines that they should be removed. If the immigrant does not do so, or if the United States cannot deport them to their designated country, federal law lays out where they may be sent. The United States may deport someone to a country where they have no ties only as a last resort, and only if that nation’s government “will accept the alien into that country.”
The immigration judge will generally inform the noncitizen which nations they could potentially be sent to, giving that noncitizen an opportunity to raise any concerns that they may be tortured if sent to a particular country. The immigration judge will then decide whether those concerns are sufficiently serious to prohibit the United States from sending the immigrant to that particular country.
The D.V.D. case concerns noncitizens who have been through this process. In many cases, an immigration judge determined that they could not be deported to a particular country. According to the immigrants’ lawyers, for example, one of their clients is a Honduran woman. An immigration judge determined that she cannot be sent back to Honduras because her husband “severely beat her and the children after his release from prison” and she fears that he would find her and abuse her again.
And that brings us to the loophole that Trump’s lawyers claim he can exploit to bypass the Convention Against Torture.
Ordinarily, if the government wants to deport someone to a country that did not come up during their hearing before an immigration judge, it can reopen the process. The government will inform the immigrant where it wishes to deport them. The immigrant will again have the opportunity to object if they fear being tortured, and an immigration officer and, eventually, an immigration judge, will determine if this fear is credible.
But the Trump administration claims it can bypass this process. If a country “has provided diplomatic assurances that aliens removed from the United States will not be persecuted or tortured,” the Trump administration claims it can deport people to that country “without the need for further procedures.” In other cases, it claims that it can give the immigrant such a brief period of time to raise an objection that it would be exceedingly difficult for them to find legal counsel, much less compile enough evidence to show that their fears are justified.
Using this virtually nonexistent process, the Trump administration recently tried to deport several non-Sudanese immigrants to South Sudan, a nation that was recently in a civil war. The peace in South Sudan, moreover, appears to be collapsing.
So Trump’s lawyers claim that the government can wait until after a noncitizen has received a hearing before an immigration judge, and only then reveal where it intends to send that noncitizen — even if that country is one of the most dangerous locations on Earth. And the immigrant may receive no process whatsoever after they learn about this decision.
Can Trump actually deny due process to people who might be tortured?
Recently, in A.A.R.P. v. Trump (2025), the Supreme Court ruled that a different group of immigrants that Trump hoped to deport without due process “must receive notice…that they are subject to removal…within a reasonable time and in such a manner as will allow them to actually seek” relief from a federal court. The district judge that heard the D.V.D. case determined that a similar rule should apply to noncitizens the Trump administration wants to deport to a surprise third country.
The Trump administration, however, primarily argues that three provisions of federal law governing which courts are allowed to hear immigration disputes mean that the district judge lacked jurisdiction to hear the D.V.D. case in the first place.
One of these provisions generally forbids federal courts from second-guessing the government’s decision to bring a removal proceeding against a particular immigrant. It also typically prohibits judges from intervening in the government’s decision to execute an existing removal order once that order has been handed down by an immigration judge. But, as the district judge explained, the D.V.D. plaintiffs do not challenge the government’s ”discretionary decisions to execute their removal orders.” Nor do they “challenge their removability.” They merely challenge the government’s decision to bypass the ordinary process it must use to obtain an order permitting an immigrant to be deported to a specific country.
The other two provisions, meanwhile, largely govern the appeals process that immigrants may use if they lose a case before an immigration judge. Such cases are typically appealed to the Board of Immigration Appeals, and then to a federal circuit court, not the district court that heard the D.V.D. case. But, again, the D.V.D. plaintiffs do not seek to appeal an immigration judge’s decision. They object to the Trump administration’s refusal to bring them before an immigration judge in the first place.
Trump’s lawyers, moreover, are quite candid about what it means if the Supreme Court accepts these jurisdictional arguments. “To the extent an action does not fit” within their proposed process, they argue, “the result is that judicial review is not available.” So, if Trump prevails, many of the immigrants he hopes to target will not have any recourse in any court.
Many immigrants, in other words, could be deported without any judge or other neutral adjudicator considering whether the immigrant will be tortured in the country the Trump administration wants to send them to — both circumventing the Convention Against Torture and giving the administration a cruel new weapon in its immigration crackdown.
