Federal Judge Strikes Down DHS Policy of Third-Country Removals Without Notice or Fear Screening: Declaratory and Vacatur Relief Granted in Nationwide Class Action
The policy was formalized in DHS/ICE “Guidance” memoranda dated March 30, 2025, and July 9, 2025. These allowed removals based on diplomatic “assurances” from the third country (often obtained via the State Department) without individualized screening or notice if DHS believed no torture risk existed. The class includes all noncitizens subject to final removal orders who have been or will be removed (or face removal) to a third country on or after February 18, 2025.
Key examples of harm included
removals or attempted removals to El Salvador (non-Salvadorans), Libya, South
Sudan, Eswatini, Equatorial Guinea, Ghana, and Cameroon, sometimes in violation
of non-refoulement obligations. Procedural history was extensive: a Temporary
Restraining Order (TRO) issued March 28, 2025; class certification and
preliminary injunction (PI) on April 18, 2025 (requiring notice and “reasonable
fear” screening); multiple DHS violations (including mid-flight halts and
misrepresentations about plaintiff O.C.G.’s removal to Mexico); Supreme Court
stays of the PI on June 23 and July 3, 2025; continued discovery and motions;
dissolution of the PI on February 20, 2026; and a December 16, 2025 hearing on
the merits motions. The 81-page decision addresses cross-motions filed in
mid-2025.
Issues
1. Whether the Department of Homeland Security’s third‑country
removal policy, as set out in the February 18, 2025 directive and the March 30
and July 9, 2025 Guidances, is contrary to the statutory country‑of‑removal
framework in INA § 1231(b), including the required hierarchy and sequencing of
removal to the designated country or country of citizenship before removal to a
third country.
2. Whether the policy violates the United States’ non‑refoulement
obligations under the Convention Against Torture and FARRA by permitting
removal to third countries based on generalized diplomatic “assurances” without providing noncitizens an
adequate opportunity to seek withholding or CAT protection.
3. Whether class members, including noncitizens who were
never formally admitted to the United States, possess a protected liberty
interest in (a) proper statutory country‑of‑removal sequencing and (b) a
meaningful opportunity to assert withholding/CAT claims before third‑country
removal, such that the policy violates the Fifth Amendment Due Process Clause.
4. Whether the March 30 and July 9, 2025 Guidances
constitute final agency action reviewable under the Administrative Procedure
Act.
5. Whether jurisdiction‑channeling provisions of the INA
(including 8 U.S.C. §§ 1252(g), 1252(a)(4), 1252(a)(5), and 1252(b)(9)) and FARRA
§ 2242(d) bar district court review of
plaintiffs’ APA and constitutional challenges to the
policy.
6. Whether plaintiffs’ various counts are barred or limited
by ripeness, mootness, duplicative‑claim principles, or failure to
state a claim.
Decision
Judge Brian E. Murphy granted Plaintiffs’ Motion for Partial
Summary Judgment in part on the APA and Due Process claims (Counts I and IV),
denied Defendants’ Motion to Dismiss as to those counts, and dismissed the
remaining counts (Counts II–III as duplicative APA claims, Count V as
unripe/moot detention‑related claims, and Count VI for lack of
standing/failure to state a FOIA claim).
The court:
- Declared
the March 30, 2025 and July 9, 2025 Guidances unlawful under the INA,
FARRA/CAT, and Due Process;
- Vacated
those Guidances in full;
- Issued
declaratory relief affirming that (a) 8 C.F.R. § 1240.12(d)
and INA § 1231(b)
require DHS to first attempt removal to the country designated in the
final order or the individual’s country of citizenship before a third
country, and (b) class members have a right to written notice (in a
language they understand) and a meaningful opportunity to raise
country-specific fears of persecution/torture before any third-country
removal, including reasonable-fear screening and, if warranted, a motion
to reopen;
- Dissolved
the April 18, 2025 preliminary injunction; and
- Stayed
the judgment for 15 days to permit the government to seek a stay pending
appeal in the First Circuit.
No new injunction issued, as vacatur and declaratory relief
were deemed sufficient. Class-wide relief applies. No costs or fees were
awarded at this stage (plaintiffs may seek them later under the Equal Access to
Justice Act).
Analysis of the Decision
Judge Murphy’s opinion is sharply worded and methodical,
criticizing the policy as allowing DHS to “take people and drop them off in
parts unknown … ‘as long as the Department doesn’t already know that there’s
someone standing there waiting to shoot … that’s fine.’ It is not fine, nor is
it legal.”
On the APA claims, the court held the policy arbitrary,
capricious, and contrary to law because INA § 1231(b)(2)
establishes a mandatory four-step hierarchy for removal countries (designated
country → citizenship country → countries with connections → any accepting
country only if prior steps are “impracticable, inadvisable, or impossible”).
The Guidances improperly permitted direct third-country removals based on vague
“assurances” without attempting the statutory sequence or documenting
impracticability. The court rejected DHS’s broad discretion arguments, citing
Jama v. ICE (543 U.S. 335, 2005) and the plain text of the statute and
regulations (8 C.F.R.
§§ 1240.10(f), 1240.12(d)). Diplomatic assurances were deemed insufficient
substitutes, as they lacked individualization required by CAT regulations (8 C.F.R. § 208.18(c)).
On Due Process, the court found a protected liberty interest
in both proper removal sequencing and the ability to assert withholding/CAT
claims, even for individuals never admitted (distinguishing entry-fiction
doctrine cases like Thuraissigiam). Applying Mathews v. Eldridge balancing, the
private interest (avoiding torture or persecution) is “life-or-death,” the risk
of erroneous deprivation is high under the policy’s minimal 24-hour conditional
notice and lack of affirmative inquiry, and the government’s interest in
efficiency does not outweigh these protections—especially given prior
regulatory acknowledgments (2005 rulemaking) and precedents like Kossov v. INS
(7th Cir. 1998) requiring notice for last-minute country designations. The
policy’s failure to provide “meaningful” process (no opportunity to contest
blanket assurances) rendered it unconstitutional.
Jurisdictional bars under INA § 1252 were
narrowly construed and rejected: § 1252(g) applies
only to discrete discretionary acts, not systemic policies; channeling
provisions (§§ 1252(a)(5),
(b)(9)) do not apply because third-country claims cannot be raised in removal
proceedings before designation occurs; and FARRA § 2242(d) limits only
regulatory challenges, not procedural ones. The court emphasized that APA
review of agency policy is presumptively available absent clear congressional
intent to the contrary.
The remedy of vacatur (rather than injunction) follows
recent Supreme Court precedent (Corner Post) and is nationwide in effect for
the class. The 15-day stay reflects equitable balancing under Nken v. Holder.
Overall, the decision reinforces statutory limits on executive removal
discretion and constitutional safeguards in high-stakes deportation contexts,
while leaving room for appeal. It does not affect removals to designated
countries or require return of already-removed individuals.
Citation D.V.D. v. U.S. Department of Homeland
Security, No. 1:25-cv-10676-BEM (D. Mass. Feb. 25, 2026)
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