U.S. Court of Appeals Strikes DHS Policy Denying Safeguards Before Third-Country Deportations

Author: Christine Savino

September 23, 2026

HRRC welcomes the protection of meaningful procedures before removal of detainees and urges the U.S. Department of Homeland Security (DHS) to ensure that changes in deportation destinations do not expose people to persecution, torture, or onward transfer to countries where they face those dangers.

Moakley U.S. Courthouse, Boston, Massachusetts [Image credit: Wikimedia Commons]

On September 18, the U.S. Court of Appeals for the First Circuit upheld the invalidation of a Trump administration policy allowing people to be deported to previously undisclosed countries without adequate notice or a meaningful chance to explain why they feared persecution or torture there.

“The First Circuit clearly held that the government cannot evade protections against persecution and torture by simply changing the deportation destination,” said Trina Realmuto, executive director of the National Immigration Litigation Alliance, which brought the case alongside Northwest Immigrant Rights Project and Human Rights First.

The First Circuit held  in the case, D.V.D. v. Department of Homeland Security, that people facing third-country removal must receive notice and a meaningful opportunity to raise claims that they could face persecution or torture.

The court said it had “some difficulty seeing how a receiving country can credibly provide blanket assurances” that all deportees would be safe from persecution or torture, particularly because harm can come from rogue officials or non-state actors.

For torture claims, the court upheld protections requiring effective notice and a meaningful opportunity to invoke protections implementing the Convention Against Torture (CAT).

Although U.S. regulations permit individualized diplomatic assurances in CAT cases, migrants must have notice and due process protections when alleging fear of persecution or torture.

DHS’s Guidance provided only about 24 hours’ notice before removal, which the court found inadequate. People who had already secured protection against removal to their home countries could therefore face deportation elsewhere without an effective opportunity to explain the risks.

The D.V.D. ruling comes amid increased third-country removals under the Trump administration, which has sent migrants to countries with which they have no connection.

According to Third Country Deportation Watch, over 25,000 third-country nationals have been sent to at least 29 third countries under the Trump administration, with approximately 20,000 sent to Mexico.

DHS General Counsel James Percival said after the decision, “[i]f you claim fear in your home country, DHS has the right to send you elsewhere.”

[Image credit: X account of DHS General Counsel, James Percival]

Third-country removal can create the risk of what is known as chain refoulement, an indirect transfer that ultimately returns someone to a country from which they had obtained protection. For example, the opinion likewise recounts the case of O.C.G., a Guatemalan plaintiff granted withholding of removal because he was likely to face persecution in Guatemala. U.S. authorities nevertheless sent him to Mexico, which subsequently deported him to Guatemala. 

The ruling was not an unqualified victory for the plaintiffs.

The court vacated two declarations concerning DHS’s obligation to pursue certain destination countries before others because the representative plaintiffs lacked standing to bring that claim. It also left unresolved whether the final judgment requires a pre-removal evidentiary hearing, directing remaining questions about the judgment’s meaning to the lower-level district court.

Nor does the decision prohibit all third-country removals: federal regulations expressly allow removal to a country other than one covered by withholding or deferral of removal. Its central significance is that the government’s authority to select another destination remains constrained by enforceable protection procedures. 

---

Glossary

• Chain refoulement: An indirect removal in which an intermediary country sends a person onward to a country to which the original removing state could not send them, often because of persecution or torture risks.

• Due process: The requirement that the government act lawfully and follow fair procedures before depriving a person of life, liberty, or property.

• Invalidation: In this context, an appellate court ruling that a policy is unlawful and therefore legally unenforceable. This is done through a process called judicial review. 

• Persecution: Under federal law, it is severe harm by a state or nonstate actor based on a protected ground (nexus). 

• Pre-removal evidentiary hearing: A court proceeding which determines if a migrant’s presence in the country is lawful.

• Third-country removal: In this litigation, removal to a country neither designated in the removal order nor identified in writing during prior proceedings as a potential destination.

• Withholding of removal: Protection preventing removal to a particular country when the applicable persecution or torture requirements are satisfied; it does not itself bar removal to a different country.

---

Resources

1. https://www.americanimmigrationcouncil.org/fact-sheet/third-country-removals/

2. https://www.aclu.org/issues/immigrants-rights

3. https://www.thirdcountrydeportationwatch.org/