The procedural history below is set out because the safeguards at issue in the case are the same safeguards that international bodies identify as necessary. It is a summary of a litigation record, not a prediction of outcome, and the position may have moved since this article was written.
Sequence
- 30 March 2025. The Department of Homeland Security issued a policy memorandum, “Guidance Regarding Third Country Removals”. Immigration and Customs Enforcement issued substantively similar guidance on 9 July 2025.
- 23 June 2025. In DHS v. D.V.D., No. 24A1153, the Supreme Court stayed a district court preliminary injunction. The order issued without an opinion.
- 25 February 2026. In D.V.D. v. Department of Homeland Security, No. 25-cv-10676-BEM, 2026 WL 521557 (D. Mass.), the district court granted summary judgment for the plaintiff class and set the policy aside under 5 U.S.C. § 706(2)(A).
- 16 March 2026. The Court of Appeals for the First Circuit stayed that judgment pending appeal, on an expedited briefing schedule.
What the district court held
The court held that class members have a right to meaningful notice before removal to any third country, and a meaningful opportunity to raise a country-specific claim against removal before it takes place. It also held that removal to a designated country must be pursued before a third country is sought.
While the stay is in effect, that reasoning is persuasive authority rather than binding law.
The process the court examined
Under the guidance at issue, where diplomatic assurances were obtained from the receiving country, removal could proceed without further screening. Where they were not, notice was served and removal could follow within twenty-four hours, or six in exigent circumstances, unless the person affirmatively expressed fear. Only an affirmative statement triggered an interview, at which the person had to show that persecution or torture was more likely than not. The district court described that threshold as facially inadequate for a screening.
Why the convergence matters
The elements the district court identified are close to those the United Nations Special Rapporteur on torture identifies as necessary under Article 3: notice of the actual destination, time enough to act on it, an individualised assessment, a stay while the claim is decided, and a screening threshold rather than a merits threshold. Two different legal systems, domestic due process and treaty obligation, arriving at a similar list is worth noting, because it suggests the list describes what the protection needs in order to function at all.
For how these safeguards apply where a person already holds withholding or CAT deferral, see our explainer on removal to a third country.
This article is published for educational purposes and is not legal advice. The law described here changed several times between 2025 and 2026. Anyone facing removal, or advising someone who is, should consult a qualified immigration lawyer. See also our explainer on removal to a third country.