This report sets out what has happened in the class action D.V.D. v. United States Department of Homeland Security, in which a federal court set the government’s third-country removal policy aside as unlawful. It is a summary of a litigation record, not advice. The most important fact about it is that the judgment is not currently in force.
Updated 27 October 2026. The sequence now runs to the First Circuit’s decision of 18 September 2026, the Supreme Court’s stay and grant of certiorari of 29 September 2026, and the briefing that followed. The section on why the judgment is not in force has been corrected: since 29 September it is the Supreme Court’s stay that holds it.
Update, 5 November 2026. On 30 October 2026 four amicus briefs were filed in the Supreme Court: by Iowa and 20 other states, the Federation for American Immigration Reform and America’s Future, in support of the government, and by Professor Philip Hamburger and the New Civil Liberties Alliance, in support of neither party. The docket, read on 5 November 2026, shows no later entry. The schedule given below is unchanged, and the position stated below as at 27 October 2026 remains the position at 5 November 2026. Sources: Supreme Court docket, No. 26-426 · Iowa and 20 other states · Federation for American Immigration Reform · America’s Future · Professor Philip Hamburger and the New Civil Liberties Alliance
Sequence
- 18 February 2025. The date from which the certified class runs. The class covers people with final removal orders whom the Department of Homeland Security has deported or will deport to a country not previously designated as the country or alternative country of removal, and not identified in writing in their earlier proceedings.
- 21 May 2025. The court found that the government had violated the preliminary injunction it had entered, by failing to give six class members a meaningful opportunity to assert claims for protection under the Convention against Torture before removing them to a third country. The government argued that the phrase “meaningful opportunity” was ambiguous. The court answered: “To be clear, this is not one of those hard cases.”
- 23 June 2025. The Supreme Court stayed the preliminary injunction pending appeal, in an emergency-docket order that gave no reasons.
- 25 February 2026. The District of Massachusetts entered final judgment. It held that class members have the right to meaningful notice before removal to any third country, and to a meaningful opportunity to raise a country-specific claim against removal before it happens. It set the third-country removal policy aside as unlawful, and held that the policy as embodied in the March 2025 guidance is contrary to the removal statute.
- 28 February 2026. The government appealed to the First Circuit.
- 11 March 2026. The First Circuit granted an immediate administrative stay, saying it intended to rule promptly on the request for a stay pending appeal.
- 16 March 2026. The First Circuit granted the stay pending appeal. One judge of the three, Circuit Judge Montecalvo, would have denied it. The court set an expedited briefing schedule and said it intended to hold oral argument soon after briefing was complete.
- 13 May 2026. The appeal was argued before Circuit Judges Montecalvo, Howard and Aframe.
- 1 September 2026. The parties were still filing supplemental authorities; no decision had yet issued.
- 18 September 2026. The First Circuit decided the appeal. It vacated, for lack of standing, the two declarations about the order in which countries of removal must be tried, and otherwise affirmed the judgment. It held that the withholding provision of the removal statute, and the Convention’s implementing statute and regulations, require effective notice and a meaningful opportunity to present a claim of fear before a removal to a third country. It did not decide whether the policy also violates the Due Process Clause.
- 23 September 2026. The First Circuit dissolved the stay it had granted in March (the Coalition’s report).
- 29 September 2026. The Supreme Court granted the government’s application, stayed the February 2026 order and judgment, treated the application as a petition for certiorari and granted it (No. 26-426). Justice Sotomayor, Justice Kagan and Justice Jackson would have denied the stay. The stay ends when the Supreme Court’s judgment is sent down (register entry).
- 23 October 2026. The government filed its brief on the merits and the joint appendix, which reproduces the First Circuit’s opinion (J.A. 1 to 47) and the two guidance documents of 30 March and 9 July 2025 (J.A. 306 to 313). The brief adds no question to the three the Court set.
- Next. The respondents’ brief is due on 16 November 2026 and the government’s reply by 2 p.m. on 1 December 2026. The case is set for argument on 9 December 2026 (Supreme Court docket).
What the judgment decided
Two things. First, that people in the class are entitled to meaningful notice before they are removed to a third country, and to a meaningful opportunity to say that they fear that particular country and to be heard on it. Second, that the policy under which these removals were being carried out is unlawful, and it was set aside on that basis.
Why it is not in force
Because the Supreme Court has stayed it. The First Circuit stayed it from March 2026 until 23 September 2026, when it dissolved its stay after deciding the appeal; no stay was in place from then until the Supreme Court’s order of 29 September 2026, which lasts until the Supreme Court’s own judgment is sent down. A stay does not decide whether the judgment was right. It suspends its effect while the case is decided. The practical position, as at 27 October 2026, is that the policy the district court set aside is the policy being applied.
The Coalition records this plainly because the opposite impression is easy to form. A reader who hears that a federal court struck down third-country removals, and who is then removed under the policy anyway, has been misled by an incomplete account. The judgment exists. It is not operating.
What it does not decide
The judgment is about notice and the opportunity to be heard. It is not about whether removal to a third country can amount to punishment, which is a separate question that other courts have addressed and which the Coalition sets out in its project on Punitive Third-Country Removals.
Nor does the Supreme Court’s stay of the earlier preliminary injunction decide anything about the merits. Several district courts have said so, noting that it is not clear whether the Court found the government likely to succeed on its jurisdictional argument or on its substantive one, and that one of the government’s main arguments concerned the power to grant class-wide relief, which has no bearing on an individual case.
Sources
D.V.D. v. United States Department of Homeland Security, No. 1:25-cv-10676-BEM (D. Mass.); memorandum on preliminary injunction, ECF 118, 21 May 2025; final judgment, 25 February 2026. Department of Homeland Security v. D.V.D., 145 S. Ct. 2153 (2025). Appeal docketed as No. 26-1212 (1st Cir.), orders of 11 and 16 March 2026, argued 13 May 2026, decided 18 September 2026 (opinion (PDF)). Supreme Court: No. 26A406, stay granted 29 September 2026, and No. 26-426, certiorari granted the same day (docket; brief for the petitioners and joint appendix, 23 October 2026; register entry). The appellate docket is public on CourtListener. The status of the case as at March 2026 is also recorded in the findings and recommendations in Pham v. Warden.