The US Department of Homeland Security (DHS) asked the Supreme Court on Tuesday to stay an injunction, which could allow for DHS to continue the deportations of migrants to third countries without due process.

The defendants in the pending case are officials in President Donald Trump’s administration, including Secretary of Homeland Security Kristi Noem, while the plaintiffs are individuals subject to final orders of removal to countries not identified in their removal order.

In the application for stay, the defendants have criticized the injunction granted by the District Court of Massachusetts on several grounds. Specifically, the application condemns the process outlined in the injunction for “wreaking havoc on the third-country removal process” and for “usurping the Executive’s authority over immigration policy.” The defendants assert that these “procedures are unlawful” because the executive branch has been given the sole authority over executing removal orders per the Immigration and Nationality Act (INA). The defendants argue that the INA does not outline a specific process migrants must have under the Convention Against Torture (CAT); thus, that discretion is left to the executive branch to determine, as opposed to the judiciary.

Furthermore, the defendants argue that there are jurisdictional bars that apply to this case to warrant a stay. One of these bars includes how the “district courts lack jurisdiction” to “review claims challenging the government’s process” related to CAT. The defendants rely on 8 US Code 1252(a)(4) to support their position, stating that this provision of the INA means that only an appellate court can review the issues.

Previously the district court judge had set out a procedure for DHS to follow to remove migrants to a third country that is compliant with due process. Namely, DHS is unable to remove a migrant to a third country unless it has provided written notice of the removal to a third country, allowed the migrant a “meaningful opportunity” to raise a fear under CAT protections, and an opportunity to reopen proceedings if their fear is deemed reasonable. If the fear is found to not be reasonable, DHS must allow the migrant an opportunity to reopen proceedings to challenge removal to the third country.

This case stems from a directive issued by DHS in mid-February of this year that instructed Enforcement and Removal Operations officers to “review the cases of aliens granted withholding of removal or protection” according to CAT to “‘determine the viability of removal to a third country.'” DHS issued additional guidance at the end of March, which set out that migrants could be removed to a third country without notice if the US gets “assurances from that country” that they “will not be persecuted or tortured.” The plaintiffs brought their case against DHS, arguing they, among those in their class, should be given “notice and an opportunity to apply for protection from removal.” The district court granted the preliminary injunction in part and class-action status in favor of the plaintiffs in mid-April.