Update, September 29, 2026: The Supreme Court granted the stay and agreed to hear the case in December. See Supreme Court Allows Third-Country Removals to Resume for the order and what it means.
The Trump administration has asked the Supreme Court, for the third time in one case, to allow third-country removals to continue without the added notice and hearing rights that lower courts ordered, less than a day after an appeals court let that ruling take effect.
U.S. Solicitor General D. John Sauer filed the emergency application on September 24 in Department of Homeland Security v. D.V.D., No. 26A406. It asks the justices to pause a February 25 judgment by U.S. District Judge Brian E. Murphy in Massachusetts while the government seeks Supreme Court review.
Status as of September 29: The Court granted the application, stayed the district court judgment and set the case for argument in December. This article describes the request as it stood on September 28.
Why third-country removals are back at the Supreme Court
A third-country removal sends a person with a final removal order to a country that is not named in that order. The government’s filing says both sides accept that DHS may send a person to a willing third country and that no one may be sent to a place where they would be persecuted or tortured. The dispute is over what process must come first.
Murphy’s judgment declared DHS’s policy unlawful, set it aside, and said class members have a right to “meaningful notice” and a “meaningful opportunity” to raise a country-specific claim before removal. The First Circuit largely affirmed on September 18, in the decision covered earlier, while reversing a separate ruling on the order in which DHS must consider destination countries.
What the appeals court did on September 23
The First Circuit had paused the judgment on March 16 while the appeal was pending. According to the government’s filing, the court dissolved that stay at 11:36 p.m. on September 23, about three hours after the immigrants asked, and without letting the government respond. The filing says the appeals court’s mandate is not due until at least November 9, but that the district court’s order took effect immediately.
The government says it carried out third-country removals under its policy for 15 months, first under the Supreme Court’s 2025 stay and then under the First Circuit’s stay.
What the government says is at stake
The filing says DHS canceled a flight to three countries carrying 70 people with criminal convictions and pulled nearly 150 people from flights to at least four countries. It says another flight to four countries, carrying 58 people, was scheduled for later that week. The government also says it has made 7,257 third-country removals to Mexico since January 2025. These figures are the government’s own, submitted with its application.
On the law, the government makes three main arguments:
- A federal statute, 8 U.S.C. 1252(f)(1), bars lower courts from issuing classwide orders that restrain these removal provisions, and the government says relabeling the relief as declarations and a VacaturA court order that cancels an agency rule or action and removes its legal effect. Under the Administrative Procedure Act, 5 U.S.C. 706, courts set aside agency action found to be unlawful, which is traditionally treated as vacatur. Whether vacatur can reach beyond the parties to a case is disputed after Trump v. CASA.See it in the glossary does not change that.
- Other provisions of the immigration laws send fear-based claims to petitions for review of removal orders, not to district court class actions.
- Neither the removal statute nor the Constitution requires more than DHS’s guidance already provides: notice of the destination and, generally, at least 24 hours to raise a fear when the receiving country has given no credible assurances.
What the earlier rulings held
Murphy and the First Circuit rejected those arguments. They held that federal law and regulations require notice and a real chance to raise fear of persecution or torture before removal to a new country. The four named plaintiffs, who proceed under initials, sued on behalf of a class of people with final removal orders.
The Supreme Court has sided with the government twice before. It granted a stay of Murphy’s 2025 Preliminary injunctionA temporary court order pausing enforcement of a rule or policy while a legal case is still being decided.See it in the glossary on June 23, 2025, over a dissent by Justice Sonia Sotomayor joined by Justices Elena Kagan and Jackson, and on July 3, 2025 clarified that the stay barred enforcement of his later remedial order. The current application concerns the final judgment, which the government says rests largely on the same reasoning, with two new grounds.
What happens next
The Court can act on the request for an immediate administrative stay, a short pause while it considers the application, or wait for the immigrants’ response and then rule on the stay itself. A stay would pause the judgment while the case continues. It would not decide whether the lower courts were right. For background on how these emergency requests work, see What Happens When the Supreme Court Takes an Immigration Case? and Nationwide Injunctions Explained.
People facing removal to a country not named in their proceedings should seek individualized legal advice as soon as possible, because the rules that apply can depend on the final order, detention status and the proposed destination.