Federal Appeals Court Requires Due Process Before Third-Country Deportations: What Detained Immigrants Need to Know

D.V.D. v. U.S. Department of Homeland Security, No. 26-1212 (1st Cir. Sept. 18, 2026).

On September 18, 2026, the U.S. Court of Appeals for the First Circuit largely affirmed a ruling holding that the Department of Homeland Security ("DHS") cannot remove covered noncitizens to a third country without effective notice and a meaningful opportunity to raise fear-based claims concerning that country.

The decision addresses third-country removals—the removal of a noncitizen to a country other than the one identified in the person’s removal proceedings—and imposes important procedural protections before such a removal may occur.

What Is a Third-Country Removal?

A third-country removal occurs when DHS seeks to remove a noncitizen to a country that is not the person’s country of citizenship and was not previously identified in writing during the removal proceedings as a potential country of removal.

The issue became particularly significant for individuals who have final removal orders but cannot lawfully be returned to their countries of origin because of protection based on persecution or torture concerns.

The litigation challenged DHS policies that permitted third-country removals in circumstances where the individual had little or no advance notice of the proposed destination.

What Did the First Circuit Decide?

The First Circuit affirmed the central portion of the district court’s ruling: before DHS carries out a covered third-country removal, the individual must receive effective notice of the proposed destination and a meaningful opportunity to contest removal to that country based on a reasonable fear of persecution or torture.

The court emphasized that statutory and regulatory procedures governing withholding of removal and protection under the Convention Against Torture do not contain an exception simply because DHS has selected a third country.

In practical terms, the decision recognizes that a person who has a legitimate fear of persecution or torture in the proposed third country must have an opportunity to raise that concern before removal occurs.

The First Circuit, however, vacated portions of the lower court's ruling concerning the alleged statutory requirement that DHS follow a particular sequence of countries when selecting a removal destination. The court therefore did not affirm every aspect of the district court’s judgment.

Why This Matters for Detained Immigrants

The decision is particularly important for individuals who are already detained and have final orders of removal.

A final removal order does not necessarily resolve every legal issue that can arise when DHS selects a particular destination for removal. If DHS seeks to remove an individual to a country where that person claims a reasonable fear of persecution or torture, the First Circuit’s decision confirms the importance of addressing that country-specific claim before removal.

This can be especially significant where the proposed destination:

• is not the individual’s country of citizenship;

• was not previously identified as a country of removal;

• is a country where the individual has never lived;

• presents a new persecution or torture concern; or

• creates a risk of onward removal to another country where the individual faces persecution or torture.

The underlying litigation specifically addressed claims involving withholding of removal and protection under the Convention Against Torture ("CAT").

What Should a Detained Person Do?

The practical lesson is straightforward: do not assume that a final removal order ends every issue concerning the destination of removal.

If ICE has informed a detained individual that removal may occur to a country other than the country contemplated in the existing proceedings, counsel should promptly determine:

1. what country DHS proposes to use as the removal destination;

2. whether that country was identified in the prior removal proceedings;

3. whether the individual has a fear of persecution or torture there;

4. whether withholding of removal or CAT protection affects the proposed removal;

5. what notice DHS has provided; and

6. whether additional proceedings or filings are necessary before removal can lawfully occur.

These questions can become extremely time-sensitive once a person is detained and removal is imminent.

A Developing Area of Immigration Law

The First Circuit’s decision is an important development, but litigation concerning third-country removals is not necessarily over. The court itself noted that certain issues concerning the scope and implementation of the judgment remain unresolved.

For that reason, the precise effect of the decision may depend on the individual’s location, procedural posture, removal order, proposed destination, and any subsequent appellate or Supreme Court proceedings.

If you or a family member is detained by ICE and faces removal to a third country, immediate legal review is critical. The relevant questions are highly fact-specific, and the available procedural protections can depend on the individual's immigration history and the nature of any prior protection from removal.