On September 18, 2026, the U.S. Court of Appeals for the First Circuit issued an important decision limiting the Department of Homeland Security’s ability to remove certain noncitizens to countries that were not identified in their immigration proceedings. In D.V.D. v. Department of Homeland Security, the court upheld key protections requiring notice and a meaningful opportunity to raise fears of persecution or torture before a person can be removed to a third country.
What Are “Third-Country” Removals?
A “third-country removal” generally refers to the government seeking to remove a person to a country other than the country of which the person is a citizen, national, or subject, or another country previously designated for removal. This can be especially significant for individuals who have already received withholding of removal or protection under the Convention Against Torture (“CAT”) from their home country. Those protections generally prohibit removal to a particular country; they do not necessarily prevent DHS from attempting removal to another country.
In 2025, DHS adopted guidance regarding certain third-country removals, including procedures allowing removal with very limited advance notice. A February 18, 2025 ICE directive instructed officers to review certain cases for possible third-country removal, and DHS followed with formal “Guidance Regarding Third Country Removals” on March 30, 2025. The guidance permitted removal in some circumstances with little or no advance notice or individualized opportunity to raise a fear of persecution or torture in the proposed destinated third country of removal.
A group of noncitizens challenged that policy, arguing that they could be sent to countries where they feared persecution or torture without a meaningful opportunity to seek protection.
How the Legal Battle Unfolded
In April 2025, a federal district court in Massachusetts entered a preliminary injunction requiring DHS to provide affected individuals with notice and an opportunity to raise claims concerning fear of persecution or torture before third-country removal.
The federal government appealed and asked the U.S. Supreme Court to temporarily block the injunction. On June 23, 2025, the Supreme Court granted that request, allowing the government’s policy to operate while litigation continued. Importantly, the Supreme Court’s order was a temporary stay, not a final decision that the DHS policy was lawful. Three Justices dissented.
The case later returned to the district court, which reached a final judgment in February 2026 and set aside portions of DHS’s third-country-removal guidance under the Administrative Procedure Act. DHS appealed again. The First Circuit’s decision resolved the appeal in favor of the noncitizen challengers.
What Did the First Circuit Decide?
On September 18, the First Circuit largely upheld the district court. The court concluded that DHS’s challenged guidance unlawfully permitted third-country removals without effective notice and a meaningful opportunity to raise claims that the individual would face persecution or torture in the proposed country of removal.
The ruling has nationwide practical effect because the case was brought on behalf of a certified nationwide class and the First Circuit upheld the district court’s vacatur of DHS’s third-country-removal guidance under the Administrative Procedure Act rather than limiting relief only to individuals within the First Circuit.
The decision does not prohibit all third-country removals. It instead requires DHS to follow important procedural protections before carrying them out. The First Circuit also rejected one portion of the district court’s ruling concerning “sequencing”—the order in which DHS must consider potential countries of removal—holding instead that the plaintiffs lacked standing to pursue that particular claim.
What Happens Next?
The federal government may seek rehearing before the First Circuit or ask the Supreme Court to review the final decision.
For individuals with final removal orders—particularly those who previously received withholding of removal or CAT protection—the decision is an important reminder that proposed removal to a new country may raise separate legal protections and should be addressed immediately with experienced immigration counsel.
