The Supreme Court this week granted a Department of Justice (DOJ) application to stay an order issued by Judge Brian Murphy of the U.S. District Court for the District of Massachusetts (D. Mass.) in D.V.D. v. U.S. DHS, which the First Circuit affirmed in large part on September 18. The order blocked “third country” removal policies implemented by ICE under Trump II — and ironically, this was the third time the justices agreed to stay orders in this case. The Court also agreed to review the matter, and while there are major issues in this case, the basic ones are straightforward.
“Recalcitrant Countries”, “Statutory Withholding”, and CAT
Generally, DHS deports aliens under final removal orders to their countries of nationality, citizenship, birth, or residence, but Congress also specifically permits DHS to remove aliens to other, “third” countries, including ones not designated in removal orders.
Aliens are usually only sent to third countries in one of two situations: (1) their countries of removal are “recalcitrant”, meaning they refuse to accept their deported nationals; or (2) the aliens have been granted a limited form of protection, either “statutory withholding” of removal under section 241(b)(3) of the Immigration and Nationality Act (INA) or protection under the Convention Against Torture (CAT).
Only DOJ adjudicators (immigration judges and Board of Immigration Appeals members) can grant aliens statutory withholding or CAT, and to grant those protections, they must first order the alien removed and then issue an order barring DHS from removing the alien to a specified country or countries. Thus, those protection orders do not bar removal to any other country that will accept the alien.
As the regulation governing statutory withholding states: “Nothing in this section ... shall prevent [DHS] from removing an alien to a third country other than the country to which removal has been withheld or deferred.” The CAT regulation goes further, providing DHS can even send beneficiaries of that protection to countries from which removal was withheld or deferred if the State Department (DOS) receives assurances the aliens won’t be tortured there.
Unlike asylum and statutory withholding, CAT isn’t expressly provided for in the INA. While the United States signed the convention in April 1988 and ratified it in October 1994, that U.S. ratification was not “self-executing” and required congressional legislation to make it effective.
That legislation was section 2242 of the Foreign Affairs Reform and Restructuring Act of 1998 (FARRA), which made it U.S. policy “not to expel, extradite, or otherwise effect the involuntary removal of any person to a country where there are substantial grounds for believing that the person would be in danger of being subjected to torture”.
FARRA did not expressly explain how that policy was to be implemented, however, leaving it up to the “appropriate” executive-branch agencies to enact regulations to enforce CAT protections.
Under those regulations, there are two different forms of CAT protection DOJ can grant: “withholding of removal” and “deferral of removal”.
The latter is a more restrictive protection available to applicants for protection who are barred from receiving statutory withholding under section 241(b)(3)(B) of the INA (including because they are persecutors, have been convicted of a particularly serious crime, or pose a danger to the national security of the United States).
DHS’s Authority to Remove Aliens to Third Countries
Section 241(b) of the INA, “Countries to which aliens may be removed”, underscores how complex it is to remove aliens from this country, because Congress therein addresses nearly every removal scenario.
By statute, different “country of removal” rules apply depending on whether the alien was stopped while “arriving at the United States” — in which case the primary country of removal is the place where the alien boarded the plane or vessel that brought him to the United States, except if it is contiguous unless the alien is a native, national, citizen, or resident of that contiguous place — and every other case, when the alien can designate a country of removal.
Those “other aliens” can only designate contiguous places if they are natives, nationals, residents, etc., and DHS can disregard an alien’s designation if the alien fails to designate a country “promptly” (most asylum, statutory withholding, and CAT applicants don’t make a designation), or if the country won’t take the alien, or if DHS determines sending the alien to that country “is prejudicial to the United States”.
Regardless, the INA expressly permits DHS to remove an alien to a third country if that country will take the alien and removal to a specified or designated country is “impracticable, inadvisable, or impossible”.
As DOJ notes in its latest application to the Supreme Court: “Congress did not set forth any procedural requirements for third country removals. Instead, Congress entrusted the Executive Branch with ensuring that no alien will be removed to a country in which the alien will be tortured.”
The EO and the March 2025 Policy
On his first day back in office, January 20, 2025, President Trump issued Executive Order (EO) 14159, “Protecting the American People Against Invasion”, in which he directed DHS to take “all appropriate action” to deport removable aliens from the United States.
The next month, on February 18, ICE issued guidance directing its officers to review cases involving aliens who had been granted CAT withholding and deferral “to determine the viability of removal to a third country and accordingly whether the alien should be re-detained”.
Thereafter, on March 30, 2025, then-DHS Secretary Kristi Noem issued more formal “Guidance Regarding Third Country Removals”, which requires immigration officers attempting to remove an alien to a third country to first determine whether the Department of State (DOS) has received assurances that the alien will not be persecuted or tortured there.
“If the United States has received such assurances, and if [DOS] believes those assurances to be credible, the alien may be removed without the need for further procedures.”
If no such assurances have been issued, or DOS doesn’t think the assurances are credible, DHS must then tell those aliens they are being removed to a third country and refer them to USCIS asylum officers, “generally” within 24 hours, for a fear screening if they assert a fear of persecution or harm.
If USCIS concludes “the alien would more likely than not be persecuted on a statutorily protected ground or tortured in the country of removal”, asylum officers must send their cases to immigration court for review if they haven’t been in removal proceedings, generally because they were subject to expedited removal.
If they were ordered removed following removal proceedings, ICE will either file a motion to reopen with the immigration court or designate another country of removal.
Enter Judge Murphy
On March 23, 2025, a group of aliens and “proposed class members” with final removal orders filed a “class action complaint” with the D. Mass. challenging first the February ICE guidance. The matter was referred to Judge Murphy, and five days later — two days before the Noem guidance — he issued a temporary restraining order (TRO), followed by a preliminary injunction on April 18, 2025.
That preliminary injunction required DHS to: give written notice to any alien under a final order facing removal to a third country; provide those aliens an opportunity to raise a claim they would be tortured in that third country; move to reopen an alien’s immigration court case if the alien had shown a “reasonable fear” of harm in that third country; and give those aliens 15 days prior to removal to move to reopen their cases if DHS didn’t find they had a reasonable fear.
In addition, Judge Murphy certified a class of aliens facing removal to third countries who could take advantage of the foregoing requirements, in possible contravention of language in section 242(f) of the INA that suggests only the Supreme Court can issue injunctive relief.
The First Circuit and the Supreme Court Got Involved — And Things Got Messy
On April 22, 2025, DOJ sought a stay pending appeal of Judge Murphy’s order from the First Circuit, and while the First Circuit denied an emergency stay on May 16, 2025, it also set the government’s appeal for briefing, which logically divested Judge Murphy of authority to issue any further orders in the matter.
That denial prompted the department, on May 27, 2025, to file an application for a stay of Judge Murphy’s injunction with the Supreme Court, which a majority of the justices granted “pending the disposition of” DOJ’s appeal in First Circuit in an order issued on June 23, 2025.
Keep the timing in mind as I explain that on May 21, 2025, Judge Murphy issued an “Order on Remedy for Violation of Preliminary Injunction”, along with a memorandum holding DHS had failed to provide “six non-citizen class members” a “meaningful opportunity” to make CAT claims before the department attempted to send them to South Sudan, finding they had only been given a 24-hour heads-up.
Specifically, Judge Murphy therein required DHS to give such aliens at least 10 days’ notification before a third-country removal to make a CAT claim, essentially modifying his April 18 order.
When the Supreme Court issued its order staying the April 18 injunction, those six were being held at a U.S. military base in Djibouti (on the Horn of Africa), and shortly after the justices acted, their counsel filed an “emergency motion” with Judge Murphy to enforce the May 21 order and prevent their transfer to South Sudan, or alternatively for the court to issue individual temporary restraining orders in their cases.
Apparently without waiting for DOJ to respond, Judge Murphy issued an electronic docket order finding his May 21 order “remains in full force and effect, notwithstanding today's stay of” his April preliminary injunction by the Supreme Court — and citing to Justice Sotomayor’s dissent from the June 23 Supreme Court order.
The next day, DOJ returned to the Supreme Court with a motion asking the justices to make clear their order applied to all the injunctive orders Judge Murphy has issued, including the May 21 order and memorandum.
On July 3, 2025, a majority of the justices granted that motion, clarifying for the parties and the lower courts that the “June 23 order stayed the April 18 preliminary injunction in full” and that the May 21 “remedial order” couldn’t “be used to enforce an injunction” the Court’s “stay rendered unenforceable”.
Even Justice Kagan — who had dissented from the June 23 stay — wrote to state that she did “not see how a district court can compel compliance with an order that this Court has stayed”, concurring in the majority’s “clarification” of its earlier order.
Onward — and Now Upward
That sent the case back down, and on February 25, Judge Murphy issued a final judgment ruling that DHS’s March 30, 2025, guidance and its subsequent July 9, 2025, guidance on “Third Country Removals Following the Supreme Court’s Order in Department of Homeland Security v. D.V.D.” (which directed adherence to the March 30 guidance) were unlawful.
As the D. Mass. stated in its conclusion:
The Court DECLARES that class members have the right to meaningful notice before removal to any third country.
The Court DECLARES that class members have the right to a meaningful opportunity to raise a country-specific claim against removal before removal to any third country.
Simply put, Judge Murphy concluded that the two DHS policies didn’t comply with those rights.
That sent the matter back to the First Circuit, which on September 18 affirmed Judge Murphy’s latest order to the extent that it, inter alia, concluded it had jurisdiction to consider the aliens’ claims, entered class-wide relief, and held that the statutory withholding provision, section 241(b)(3) of the INA, and FARRA require DHS to give aliens notice and an opportunity to raise statutory withholding and CAT claims prior to a third-country removal.
Then on September 23, the circuit court dissolved its stay of Judge Murphy’s order that it had issued pending appeal, sending the department back to the Supreme Court the next day seeking a stay of that order and an “immediate administrative stay”.
As one legal expert has explained, “administrative” or “temporary” stays are “a little examined device that federal courts employ to freeze legal proceedings until they are able to rule on a party’s request for a stay pending appeal”. In other words, an administrative stay doesn’t resolve issues so much as it puts them on ice while they can be resolved.
At the heart of DOJ’s request for an administrative stay was its claim that:
The unexpected springing-back of [the] district court’s order has ... created substantial logistical problems with ongoing removal operations — including the cancellation of flights — and led to added expense, potential diplomatic issues, and the inability to remove dangerous criminals. For example, DHS informs us that it has already canceled a flight to three separate countries carrying 70 aliens with criminal convictions (including aggravated assault and serious drug offenses), and that the cancellation has required a new round of diplomatic engagement with each of the three countries. Those disruptions will only get worse.
More broadly, DOJ contends that under DHS’s third-country removal policy, prompt deportations only occur when the country “has credibly assured the Secretary of State that it will not persecute or torture anyone”, but that “absent such assurances, the alien will be given notice of his removal to that country and an opportunity to raise any fears of potential persecution or torture there”.
On September 29, the Supreme Court granted the stay, treated the application as a petition for writ of certiorari, and agreed to consider the government’s appeal, including on the question of whether the DHS third-country removal guidance is unlawful under the Constitution, the INA, or FARRA and its implementing regulations.
Key Questions
One practitioner explained that the circuit-court opinion “did not say what process a fear claim receives once raised. It called the evidentiary-hearing question neither ripe nor fully joined and left it to the district court. It did not reach the Constitution.”
That said, and while there are other issues in the case (including the major question of “whether the district court had authority to enter classwide declaratory relief”) as a practical matter, there aren’t that many major disputes surrounding third-country removals per se. Specifically, DOJ explains in its latest application that:
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.
If the U.S. government has assurances no alien will be persecuted or tortured in a third country, does any alien have a right to contend he would be? And if an alien has no ties to a third country, how valid is a claim he’d be harmed there and how should it be assessed? The justices will soon mull those questions, albeit indirectly, in a case they’re already very familiar with.