D.V.D. v. Department of Homeland Security holds the third-country removal policy unlawful, and rests that holding on the immigration statute rather than the Constitution.
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The decision. In D.V.D. v. U.S. Department of Homeland Security, No. 26-1212 (1st Cir. Sept. 18, 2026), the First Circuit held that the Department of Homeland Security's guidance on third-country removals is unlawful under the Administrative Procedure Act. The policy let the government remove people with final orders to a country never named in their case, without notice and without a chance to say they feared persecution or torture there. The court affirmed, though it vacated two declarations about which country must be tried first, because the named plaintiffs lacked standing.
What it means. The holding rests on the immigration statute and its regulations, not the Constitution. The court read 8 U.S.C. § 1231(b)(3) and the torture regulations to require notice of the intended country and a meaningful opportunity to raise a fear-based claim before removal, and it declined to decide whether the Fifth Amendment demands the same. That ground matters, because it does not turn on how a later court reads due process. The court also held that 8 U.S.C. § 1252(f)(1) bars neither declaratory relief nor vacatur, following Brito v. Garland, 22 F.4th 240 (1st Cir. 2021).
For the First Circuit. This controls cases from the immigration courts in Boston, Chelmsford, and Guaynabo. The stake is timing. People with final orders have been moved to third countries fast, and someone who learns the destination as it happens cannot say what they fear there. Notice is what makes the claim possible, and after D.V.D. it has to come before the removal.
The limits. The court 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, and the sequencing question is undecided. Outside the First Circuit the question is open, and other courts may not answer it the same way.
Case Law Watch is Emeriti Law's weekly note on decisions that matter for immigration appeals. Our appellate practice briefs these questions before the Board of Immigration Appeals. This note is general information, not legal advice.
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