On 29 September 2026 the Supreme Court of the United States stayed the judgment in D.V.D. v. U.S. Department of Homeland Security, the class action brought by people facing removal to countries other than their own, and agreed to decide the case itself. The judgment, entered by the District of Massachusetts on 25 February 2026 and largely affirmed by the First Circuit on 18 September, had set aside the government’s third-country removal policy. While the stay lasts, it has no effect. Argument is set for Wednesday, 9 December 2026. Justice Sotomayor, Justice Kagan and Justice Jackson would have denied the stay.
What the Court ordered
The order is a single paragraph and gives no reasons. In full:
Supreme Court of the United States, No. 26A406, 29 September 2026. “Application (26A406) for stay presented to Justice Jackson and by her referred to the Court is granted. The February 25, 2026 order and judgment of the United States District Court for the District of Massachusetts, case No. 1:25-cv-10676, are stayed. The application is also treated as a petition for a writ of certiorari, and the petition is granted (case No. 26-426). The parties are directed to brief and argue the following questions: (1) Whether the district court had jurisdiction over Respondents’ claims. (2) Whether the district court had authority to enter classwide declaratory relief and APA vacatur under 8 U. S. C. §1252(f)(1). (3) Whether the Government’s Guidance on third-country removals is unlawful under 8 U. S. C. §1231(b), the Due Process Clause, or FARRA/CAT and its implementing regulations. (4) Such other questions that the Government determines are appropriate for the proper disposition of the case. The Clerk is directed to establish a briefing schedule that will allow the case to be argued in the December 2026 argument session. The stay shall terminate upon the sending down of the judgment of this Court. Justice Sotomayor, Justice Kagan, and Justice Jackson would deny the application for stay.”
The fourth question leaves it to the government, the party that asked for the stay, to name any further questions it considers appropriate.
What was stayed
The February judgment declared that members of the class have a right to meaningful notice of the country to which they are to be sent, and a meaningful opportunity to raise a claim of fear about it, before they are removed. It set aside as unlawful the two documents that make up the government’s policy: the Department of Homeland Security’s guidance of 30 March 2025 and Immigration and Customs Enforcement’s guidance of 9 July 2025. It did not include an injunction.
According to the government’s application, the First Circuit held on 18 September that the class lacked standing to press its claim about the order in which countries of removal must be tried, but otherwise affirmed. It agreed with the district court on classwide relief under section 1252(f)(1), on jurisdiction, and on the holding that section 1231(b) requires notice and an opportunity to raise a withholding claim before a third-country removal. It also held that the Foreign Affairs Reform and Restructuring Act imposes the same procedural requirements for claims under the Convention against Torture.
Six days from application to order
- 18 September. The First Circuit largely affirms the February judgment (No. 26-1212).
- 23 September. The class files an emergency motion, telling the First Circuit that the Department of Homeland Security intends to remove class members to Burundi, Rwanda and the Central African Republic the next day. That night the First Circuit dissolves the stay it had granted in March.
- 24 September. The government, through the Solicitor General, applies to Justice Jackson, as Circuit Justice for the First Circuit, for a stay. She calls for a response by 4 p.m. on 28 September.
- 28 September. The class files its response. Two amicus briefs in support of the government’s application are filed, by America’s Future and by the Federation for American Immigration Reform.
- 29 September. The government files its reply. Justice Jackson refers the application to the full Court, which grants it the same day.
- 1 October. The Court sets the schedule: the government’s brief by 23 October, the class’s by 16 November, the reply by 1 December. Argument is set for 9 December 2026.
What each side told the Court
The government’s application opens with what it describes as common ground:
Application for a stay, 24 September 2026. “Everyone agrees that DHS may remove such an alien to a country not listed in the order (i.e., a ‘third country’) if that country is willing to accept the alien and certain other conditions are met. Everyone likewise agrees that the alien may not be removed to a country where he will be persecuted or tortured.”
It argued that the district court, after the Supreme Court stayed its 2025 injunction, had awarded “substantially the same relief on substantially the same grounds,” and that the classwide declaration was “no mere declaration, but a coercive injunction by another name,” barred by section 1252(f)(1).
The class answered that the government was trying to “relitigate the now-dissolved preliminary injunction” and was ignoring how the case had changed: a final judgment on claims under section 1231(b) that the 2025 order had not addressed, affirmed on appeal, with no injunction in it. It pointed to “the significant harm resulting from deporting thousands of longtime U.S. residents, many with no criminal history, to third countries without regard to the persecution or torture they face there.”
What was in the record
The class’s response cited sworn declarations from people already removed to third countries, describing detention, beatings and sexual assault, disappearance, and chain refoulement. One is the declaration of an Iranian man who holds protection against return to Iran. He was flown to Nicaragua, where, the response told the Court, officials said he would be sent on to Iran “under an agreement with the U.S. government,” and an official “kicked him in the stomach until he signed paperwork agreeing to be deported to Iran.” He got away while in transit. The declaration is district court document 233-18. The government’s application and reply do not mention it.
The Coalition hosts the declaration and sets out what it records in The Record.
What happens now
The stay ends when the Supreme Court’s judgment is sent down. Until then the February judgment, including its setting aside of the two guidance documents, has no effect. The Court had stayed the earlier preliminary injunction in this case on 23 June 2025. The case will be argued on 9 December 2026, and the decision will be added to the register of court decisions when it is issued.
The rules at issue, and how United States courts have dealt with them so far, are set out on The Law and in the Coalition’s commentary, What United States Courts Have Held on Removal to a Third Country, and What They Have Not.
Sources: Supreme Court dockets No. 26A406 and No. 26-426, read 3 October 2026. Filings: application for a stay; response of the class; reply; amicus briefs of America’s Future and the Federation for American Immigration Reform. Register entry: Department of Homeland Security v. D.V.D., 29 September 2026.