A Removal Order Is Not a Blank Check on Destination.
A person can have a final removal order and still have a legal right not to be sent to a particular country. Those propositions are not contradictory. They describe the country-specific structure of U.S. protection against persecution and torture. On September 18, the First Circuit largely affirmed a judgment setting aside Department of Homeland Security guidance for third-country removals. The policy allowed the government, in some circumstances, to identify a destination that had never appeared in the removal proceedings and move rapidly toward departure without effective notice or a meaningful opportunity to raise fear about that country. The court did not erase final removal orders or forbid third-country removal. It held that the government cannot make a country-specific protection meaningful while withholding the country until the process is nearly over.
The destination was a new legal fact
The certified class consists of people with final removal orders whom DHS had removed, or planned to remove, to countries neither designated in their orders nor identified in writing during their proceedings. Some had already obtained protection from removal to their home countries because of likely persecution or torture. The government's position was not that those protections had disappeared. It was that removal could be carried out somewhere else.
That distinction is lawful in principle. Withholding of removal and protection under the Convention Against Torture are country specific. They do not confer a general right to remain in the United States, and regulations expressly contemplate possible removal to another country where the person is not likely to face the prohibited harm. The difficult question is procedural: how can a person assert a country-specific protection when the government supplies a new country after the original proceeding is finished?
DHS's March 2025 guidance divided the answer according to diplomatic assurances. If the destination had provided assurances that removed people would not be persecuted or tortured and the State Department viewed them as credible, the guidance required no further process. Without such assurances, DHS would notify the person, but officers would not affirmatively ask about fear. A later memorandum said ICE would generally wait at least 24 hours after notice in those cases. The opinion describes a system designed to execute an existing order quickly. The problem was that speed compressed the first real opportunity to contest a destination that the existing order had never resolved.
A final order decides less than the government argued
DHS emphasized that class members had already received removal proceedings and were subject to valid final orders. The First Circuit drew a narrower line. The class was not challenging whether the government could execute those orders or whether third-country removal exists as a statutory option. It challenged removal to an unlitigated destination without effective notice and a meaningful opportunity to present fear-based claims about that destination.
That framing matters well beyond immigration. Procedure is not exhausted merely because a case has reached a final posture. A later government choice can introduce a new fact that triggers a protection the earlier proceeding could not adjudicate. Finality answers the questions that were actually resolved. It does not necessarily answer a question created by a later decision maker.
The court was careful not to require the government to restart the entire removal case. It described the class's demand as more limited: prior notice of the intended destination and a meaningful opportunity to raise persecution or torture claims concerning that place. The opinion leaves details about what the final judgment requires, including any unresolved hearing questions, for the district court in the first instance.
Notice is part of the right, not paperwork around it
The panel's core reasoning is unusually concrete. A right not to be removed to a country where persecution or torture is likely has little value if the person is not told where the government intends to send them with enough time and information to invoke that right. General notice that third-country removal is legally possible is not notice of the destination that matters.
The difference between notice and effective notice is operational. A detained person may need to understand the proposed country, communicate through language barriers, reach counsel or family, collect country-condition material, identify personal risks, and present a claim before a flight departs. A clock measured in hours may technically follow delivery of a form while making those acts impossible. The First Circuit did not prescribe a universal number of days. It insisted on a meaningful opportunity, a standard that depends on what the person must realistically do.
Diplomatic assurances also could not automatically replace the statutory and regulatory process. The panel noted that the public record did not disclose which countries had supplied the blanket assurances contemplated by the guidance. More fundamentally, it found no exception in the persecution and torture framework allowing generalized assurances to displace an individual's opportunity to present a claim under the governing procedures.
The holding is statutory before it is constitutional
It is tempting to summarize the decision as a broad constitutional ruling. That would overstate it. The district court had relied in part on the Fifth Amendment. The First Circuit affirmed on statutory and regulatory grounds, reading the withholding and torture-protection schemes to require effective notice and a meaningful opportunity to be heard. It said that interpretation avoided serious constitutional problems and that the force of the district court's due-process analysis supported the use of constitutional avoidance.
Because the guidance conflicted with those statutory and regulatory requirements, the panel held it unlawful under the Administrative Procedure Act. It expressly did not decide whether the guidance independently violated the Due Process Clause. That distinction is not pedantry. A statutory holding can produce consequential relief without announcing the full constitutional boundary, and a later court reviewing a revised policy may face a different question.
The panel also rejected DHS's argument that a provision limiting lower-court injunctions barred the declaratory and APA vacatur relief. Applying First Circuit precedent, it treated declaratory relief and vacatur as different from an injunction. That remedial question is likely to remain important if the dispute proceeds further.
The government won one important issue
The decision was not a complete affirmance. The district court had also declared that DHS must first attempt removal to countries selected by the individual or countries of citizenship or nationality before moving to other countries in the statutory sequence. The First Circuit concluded that the named plaintiffs lacked Article III standing to pursue that sequencing claim and vacated those declarations.
That result narrows what the case established. The surviving judgment is about effective destination notice and a meaningful chance to raise country-specific fear claims. It is not a holding that every person may dictate the order in which DHS considers possible destinations. Accurate reporting should preserve both sides of the disposition.
The immediate implementation posture also requires care. DHS's general counsel said after the decision that the policy remained in force because the ruling was not yet effective, and the government is expected to seek further review, according to Reuters. Earlier stages of the litigation involved stays from both the First Circuit and the Supreme Court. Lawyers should verify the mandate, any new stay, and current agency practice before advising an affected person.
For lawyers, the destination cannot wait
Third-country removal converts destination research from background into emergency practice. Counsel representing someone with a final order needs reliable contact information, custody-location monitoring, a current understanding of prior protection findings, and a plan for receiving and escalating any destination notice. The first question after learning that removal is imminent is not simply whether the order is final. It is where DHS proposes to send the person and what procedure remains available to contest that country.
The evidentiary work is also destination specific. Conditions in the country, the client's identity and history, diplomatic assurances, possible onward removal, and access to protection there may all matter. O.C.G., one of the named plaintiffs discussed in the opinion, had protection against removal to Guatemala, was sent to Mexico, and was then deported from Mexico to Guatemala. The opinion presents that history as an example of chain refoulement. It is not an abstract concern about geography. A nominally different destination may be the first step back to the danger the original protection recognized.
Firms handling these matters should avoid false certainty. The ruling is substantial, but litigation may continue and the panel left implementation questions unresolved. A useful client communication should separate the final order, the proposed destination, any existing country-specific protection, the current effect of the judgment, and the next procedural step. Combining those issues into a single statement such as 'the court stopped deportations' or 'the order means nothing can be done' would be equally misleading.
The law must arrive before the plane leaves
The government has a legitimate interest in executing final removal orders, and the First Circuit did not deny it. But an efficient process cannot define a legal protection so narrowly that the person learns the fact activating it only when there is no practical time to respond.
That is the broader institutional lesson. Rights are implemented through notice, time, access to counsel, evidence, and a decision maker able to act before the consequence becomes irreversible. A final order carries real authority. It does not convert every later destination into a fact already adjudicated. When the protection is specific to a country, the government must identify the country while the protection can still be used.
General legal analysis, not individualized immigration advice. AI Esquire is an attorney-led publication, not an immigration news service. The decision may be subject to rehearing, Supreme Court review, further stays, and implementation proceedings. Counsel should verify current law and case-specific facts.
Sources and further reading
Primary and industry sources used to support this page. External guidance should be reviewed in context and for your jurisdiction.
- D.V.D. v. U.S. Department of Homeland Security, First Circuit opinionFiled September 18, 2026. Primary source for the class definition, guidance, statutory analysis, partial vacatur, APA holding, and disposition.
- 8 U.S.C. § 1231Official House U.S. Code text governing detention and removal after a final order, including country selection and withholding provisions.
- 8 C.F.R. § 208.16Current eCFR text addressing withholding of removal and Convention Against Torture eligibility procedures.
- 8 C.F.R. § 1208.16Current Executive Office for Immigration Review regulation addressing withholding and deferral standards.
- Reuters report on the First Circuit decisionPublished September 18, 2026. Source for the immediate response, reported scale of third-country removals, and anticipated further review.