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. In its brief on the merits, filed on 23 October 2026, the government named none: “We have determined that no additional questions warrant briefing here.”
On the day of the order, Attorney General Todd Blanche posted: “Now for the second time, SCOTUS just granted our stay in conducting all third-country removals of illegal aliens. Again, this is entirely lawful and a critical tool for immigration enforcement.” Source: Todd Blanche, post on X, 29 September 2026
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.
In its opinion of 18 September, now reproduced in the Supreme Court record (Joint Appendix, J.A. 1 to 47), the First Circuit held that the representative plaintiffs lacked standing for their claim about the order in which countries of removal must be tried, vacated the two declarations on that point, and otherwise affirmed the judgment. It rejected the government’s objections to jurisdiction and its argument that section 1252(f)(1) barred the declarations and the setting aside of the guidance. It held that the guidance conflicts with section 1231(b)(3) and the regulations governing fear-of-persecution claims, and that “the FARRA/CAT and its implementing regulations require that noncitizens be provided with effective notice and a meaningful opportunity to present a fear-of-torture claim before DHS may remove them to a third country.” It read that requirement into the statute and regulations by “application of the constitutional-avoidance canon and an assumption of ‘congressional solicitude for fair procedure, absent explicit statutory language to the contrary’”, and it did not decide whether the guidance also violates the Due Process Clause: “we do not reach the question whether the Guidance also violates the Fifth Amendment’s Due Process Clause” (footnote 20).
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.
- 6 October. The Court requests the record from the First Circuit (docket).
- 9 October. The record is received. It is electronic and available on PACER.
- 23 October. The government files its brief on the merits and the joint appendix, which reproduces the First Circuit’s opinion and the two guidance documents. The brief adds no question to the three the Court set. The class’s brief is due on 16 November, and the reply by 2 p.m. on 1 December.
- 27 October. The docket records the entry “CIRCULATED.”
- 29 October. The Court receives sealed material electronically from the District of Massachusetts; the docket notes that “The remainder of the record is electronic and is available on PACER.”
- 30 October. Four amicus briefs are filed: by Iowa and 20 other states, by the Federation for American Immigration Reform and by America’s Future, in support of the government, and by Professor Philip Hamburger and the New Civil Liberties Alliance, in support of neither party. None of the four mentions the Iranian man’s declaration, Nicaragua or Iran.
The schedule, as of 5 November 2026. The docket shows no entry after 30 October. The brief for the respondents, the class, is due on Monday, 16 November 2026; the government’s reply must be filed, and received by the Clerk, by 2 p.m. on Tuesday, 1 December 2026; and the case is set for argument on Wednesday, 9 December 2026. Source: Supreme Court docket, No. 26-426, read 5 November 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. In its own words, the declaration describes a form “saying that I was willingly accepting deportation to another country”, and two acts: an officer “kicked the chair out from under me”, and “Another officer kicked me in the stomach. Because of this abuse, I signed the form.” The government’s application and reply do not name it; the reply’s answer to the passage of the response that cites it (pages 37 to 40 of the response) includes this sentence: “respondents note instances of chain refoulement, but neither their merits claims nor the judgment below is based on that concern.” Sources: Declaration, ECF 233-18, paragraph 17, Coalition copy (PDF) · Government reply, No. 26A406, pages 17 to 18 · Coalition copy (PDF)
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.
Two courts of appeals have already treated the stay as deciding individual requests to halt a removal. On 9 October 2026 the Sixth Circuit refused a stay to a class member, holding that her motion “pursues the same claims that the Supreme Court held did not warrant an injunction” (Ojukwu v. Lyons). The next day the Fifth Circuit refused one too, holding that 8 U.S.C. § 1252(g) left it without power to consider the motion, and saying that the Supreme Court had “effectively ratified third-country removal” by granting certiorari while “explicitly permitting the government to continue with third-country removals unabated pending full resolution on the merits” (Gakou v. Warden of the Prairieland Detention Center). The Supreme Court’s order itself gives no reasons. The class’s lawyers answer, in their practice advisory of 21 October 2026, that “An unexplained emergency stay ruling does not establish that the government is likely to prevail on the merits.”
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, and No. 26-426 again on 27 October 2026 and 5 November 2026. Merits stage: brief for the petitioners and joint appendix, 23 October 2026; the First Circuit’s opinion of 18 September 2026, No. 26-1212. Amicus briefs of 30 October 2026: Iowa and 20 other states; Federation for American Immigration Reform; America’s Future; Professor Philip Hamburger and the New Civil Liberties Alliance. Stay 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.