Department of Homeland Security v. D.V.D. (26-426)
- Term
- OT 2026
- Certiorari granted
- 2026-09-29
- Court below
- U.S. District Court for the District of Massachusetts
- Argument
- 2026-12-09
The case in brief
Facts
Four noncitizens with final deportation orders sued the Department of Homeland Security (DHS) in March 2025 as a proposed class action. They challenged DHS's guidance on deporting people to "third countries" that were not named in their removal orders. Under that guidance, people can be sent to countries that have promised not to persecute or torture them without further steps. For other countries, DHS gives notice and generally waits at least 24 hours so the person can say they fear harm there. The trial court ruled for the noncitizens in February 2026, declared the guidance unlawful, and set it aside. The federal appeals court largely agreed, and the Supreme Court then agreed to hear the case and put the judgment on hold, though Justices Sotomayor, Kagan, and Jackson would have refused that request.
Question
Did the trial court have the power to hear this case and grant relief to the whole group, and does DHS's third-country deportation guidance violate federal immigration law, the Constitution's guarantee of fair procedures (due process), or anti-torture protections?
Question Presented
(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.
Scope of review: The Court treated the government's stay application (No. 26A406) as a petition for a writ of certiorari and granted it, directing the parties to brief and argue the questions above, which the Court framed itself. The Clerk is to set a briefing schedule for argument in the December 2026 session. The same order stayed the District Court's February 25, 2026 order and judgment until the Court's judgment issues; Justice Sotomayor, Justice Kagan, and Justice Jackson would deny the stay. The government's appeal is pending in the First Circuit (No. 26-1212).
Our probability estimate is published after oral argument.
How the case got here
Four noncitizens subject to final removal orders filed a putative class action against the Department of Homeland Security in March 2025, challenging DHS's guidance on removals to third countries not designated in their removal orders as lacking adequate notice and an opportunity to raise fear-based claims. The district court certified a class and issued a preliminary injunction, which the Supreme Court stayed; the district court later dissolved that injunction on remand. On February 25, 2026, it granted summary judgment to respondents on their due process and 8 U.S.C. 1231(b) claims, declared the guidance unlawful, and vacated it. The First Circuit initially stayed that judgment pending appeal, then largely affirmed (holding respondents lacked standing only on the country-sequencing claim) and dissolved its stay, after which DHS sought Supreme Court review.
- 2025-02 — Department of Homeland Security: DHS issued guidance directing ICE Enforcement and Removal Operations to review cases of aliens ordered removed whose removal had been impeded by withholding or CAT protection, and to determine the viability of third-country removal
- 2025-03 — United States District Court: Putative class action filed by four aliens with final removal orders, alleging due process requires notice and an opportunity to be heard before removal to a country not designated in their removal orders
- 2025-03-30 — Department of Homeland Security: DHS issued memo clarifying its policy on removal of aliens with final orders to countries other than those designated in their removal orders
- 2025-04-18 — United States District Court: Class certification granted and classwide preliminary injunction issued; court rejected the government's 8 U.S.C. 1252(f)(1) and jurisdictional arguments and held the Guidance likely violated due process (778 F. Supp. 3d 355). Respondents
- Date not stated — United States Court of Appeals for the First Circuit: Government appealed the preliminary injunction and sought a stay
- 2025-05 — United States District Court: District court issued orders concerning the government's attempted removal of a group of aliens to South Sudan (2025 WL 1449032). Respondents
- 2025-05-21 — United States District Court: Order clarifying that the injunction's 'meaningful opportunity' to raise a fear-based claim means a minimum of ten days (2025 WL 1453640). Respondents
- 2025-05-21 — United States District Court: Remedial order requiring private reasonable fear interviews, presence of counsel, 72-hours' notice of interviews, and periodic status reports (2025 WL 1453604). Respondents
- 2025-06-23 — United States District Court: Order asserting that the May 21 remedial order remained in full force and effect notwithstanding the stay of the preliminary injunction (D. Ct. Docket Entry 176). Respondents
- 2025-07-09 — Department of Homeland Security: DHS issued a substantially similar document affirming its third-country removal policy
- 2025-08-28 — United States District Court: Granted respondents' motion for an indicative ruling that the court would dissolve the preliminary injunction if the First Circuit remanded the appeal for that purpose (D. Ct. Doc. 212). Respondents
- 2026-02-20 — United States Court of Appeals for the First Circuit: Case remanded to the district court (D. Ct. Doc. 239)
- Date not stated — United States District Court: Preliminary injunction dissolved
- 2026-02-25 — United States District Court: Final judgment granting summary judgment to respondents on due process and 8 U.S.C. 1231(b) claims, dismissing remaining counts; Guidance declared unlawful and universally vacated, with declaratory relief for class members. Respondents
- 2026-03-16 — United States Court of Appeals for the First Circuit: Stay pending appeal granted (26-1212 C.A. Doc. 118417272). Government
- 2026-09-18 — United States Court of Appeals for the First Circuit: Judgment largely affirmed; court held respondents lacked Article III standing on the country-sequencing claim but otherwise affirmed, and held FARRA imposes the same procedural requirements for CAT claims under constitutional avoidance (2026 WL 2797801). Respondents (largely)
- 2026-09-23 — United States Court of Appeals for the First Circuit: Granted respondents' motion to dissolve the stay pending appeal, without awaiting a government response or providing reasoning. Respondents
- 2026-09-24 — Supreme Court of the United States: Application for a stay filed (No. 26A406), submitted to Justice Jackson
- 2026-09-24 — Supreme Court of the United States: Petition for certiorari filed
- 2026-09-29 — Supreme Court of the United States: Certiorari granted
- 2026-09-29 — Supreme Court of the United States: Application (No. 26A406) granted by the Court; Justice Sotomayor, Justice Kagan, and Justice Jackson would deny the application for stay.
- 2026-10-01 — Supreme Court of the United States: Set for argument on Wednesday, December 9, 2026.
In the news
Featured analysis: How Trump Has Benefited From the Supreme Court's 'Shadow Docket' — TIME, 2026-10-01. Cited as the latest example: the Sept. 29 order letting third-country removals resume while the case is argued, over the three liberal justices' noted dissent. TIME surveys how heavily the administration has relied on emergency applications: by its count, 41 so far in Trump's second term, matching his entire first term, against 19 under Biden, with the administration prevailing in 24 of the 32 the Court has decided since January 2025. It walks through the late-September orders on third-country deportations and the voter-verification database, notes the Court's refusal to revive the Postal Service ballot rule, and sets law professors' criticism that the Court has relaxed the standards for executive emergency relief against a Justice Department official's view that the record reflects lower courts wrongly blocking lawful policies.
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