Update, September 29, 2026: The First Circuit dissolved its stay of the district court judgment on September 23, and on September 29 the Supreme Court stayed that judgment and agreed to hear the case in December. See Supreme Court Allows Third-Country Removals to Resume for the latest.
A federal appeals court has largely upheld a ruling that found the Trump administration’s third-country deportation policy unlawful because it does not guarantee effective notice or a meaningful opportunity to raise fears of persecution or torture.
The unanimous September 18 decision from the U.S. Court of Appeals for the First Circuit does not prohibit all removals to third countries. Instead, it holds that the Department of Homeland Security cannot use its existing policy to send covered noncitizens to countries not identified in their removal proceedings without procedures that allow them to contest the destination on safety grounds.
Status as of September 19: The appellate ruling was not yet in effect, a point overtaken by later events described in the update above. DHS General Counsel James Percival said after the decision that the challenged policy remains in force for now. The government is expected to seek further review, potentially from the U.S. Supreme Court.
What the First Circuit decided
In D.V.D. v. U.S. Department of Homeland Security, No. 26-1212, a three-judge panel reviewed a final judgment issued by U.S. District Judge Brian E. Murphy in Massachusetts. The case concerns a class of noncitizens with final removal orders whom DHS has deported, or may deport, to countries that were neither designated in their removal orders nor identified in writing during their earlier proceedings.
The First Circuit’s 55-page opinion affirmed the central parts of the lower court’s judgment:
- DHS must provide effective notice that it intends to remove a covered person to a specified third country.
- The person must receive a meaningful opportunity to claim that removal to that country would expose them to persecution or torture.
- The March and July 2025 DHS guidance is unlawful under the Administrative Procedure Act to the extent it authorizes removals without those safeguards.
- The certified class and class-wide declaratory relief may remain in place.
The court grounded its decision in federal immigration statutes and regulations governing Withholding of removalProtection that bars removal to a particular country where a person's life or freedom would be threatened, or where torture is more likely than not. The judge still issues a removal order, the protection does not lead to a green card, and DHS may be able to remove the person to a third country.See it in the glossary, as well as protections implementing the Convention Against Torture. Because it resolved the case on statutory and regulatory grounds, the panel did not decide whether the DHS policy also violates the Fifth Amendment’s Due Process Clause.
What the court did not uphold
The appeals court reversed one part of the lower court’s ruling. Judge Murphy had declared that DHS must first try to remove class members to a country they designated, or a country of which they are a subject, national or citizen, before considering a third country.
The First Circuit concluded that the named plaintiffs lacked Article III standing to pursue that “sequencing” claim. It therefore vacated the two declarations dealing with the order in which DHS must consider possible destination countries.
This distinction matters: the ruling preserves DHS’s legal authority to conduct third-country removals, but rejects the procedures in the current guidance when they do not provide effective notice and a meaningful chance to present a fear-based claim.
How the challenged policy worked
DHS issued guidance in March 2025 for removing people to countries other than those identified in their final Removal proceedingsThe formal court process, formerly called deportation, in which the government seeks to remove a noncitizen from the United States.See it in the glossary. Under that policy, DHS could proceed without additional procedures when the receiving country had provided diplomatic assurances that deportees would not be persecuted or tortured and the State Department considered those assurances credible.
When there were no qualifying assurances, immigration officers would notify the person of the proposed destination. Officers were not required to ask affirmatively whether the person feared removal there. A person who independently expressed fear could be referred to U.S. Citizenship and Immigration Services for screening.
A July 2025 memorandum said ICE would generally wait at least 24 hours after serving notice in cases without credible diplomatic assurances. The First Circuit found that the combined guidance still failed to guarantee the notice and meaningful opportunity required by the governing laws and regulations.
Why the court rejected the policy
Writing for the panel, Judge Seth Aframe explained that protection against removal to a country where a person may face persecution or torture has little practical value if the person is not told the intended destination and allowed to raise the risk before departure.
The court rejected DHS’s argument that it could use a more streamlined process for third-country removals. It concluded that existing statutes and regulations governing persecution and torture claims do not create an exception for these removals.
The panel also upheld the district court’s authority to set aside the unlawful agency guidance under the Administrative Procedure Act. It distinguished that remedy from a nationwide injunction and noted that the Supreme Court has not resolved whether the APA authorizes courts to vacate federal agency action.
Who is covered by the ruling
The certified class covers people with specified types of final removal orders whom DHS has deported, or will deport, on or after February 18, 2025, to a country that:
- was not previously designated as the country or an alternative country of removal; and
- was not identified in writing during the earlier proceedings as a possible destination.
The decision does not cancel final removal orders or give every class member a right to remain in the United States. It concerns the procedures DHS must follow before removing a covered person to a particular third country.
What happens next
The First Circuit’s decision was issued on September 18, but it does not immediately change the policy’s operative status. DHS said the policy remains in effect because the appellate decision has not yet taken effect. The government may request rehearing or ask the Supreme Court to review the case and may seek to preserve the existing stay while further proceedings continue.
The litigation has already reached the Supreme Court at an earlier stage. In June 2025, the Court stayed a 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 while the appeal proceeded. The latest decision addresses the final judgment on the merits, which creates a new posture for any further appeal.
People facing removal to a country not named in their proceedings should seek individualized legal advice immediately. The timing and availability of relief can depend on detention status, the final removal order, the proposed destination and whether fear of persecution or torture has been raised.
For a broader overview of immigration policy and litigation developments, see What Changed in 2026, and What Is Still in Court.