First Circuit Affirms Most of Ruling Requiring Notice Before DHS Third-Country Deportations
A three-judge panel in Boston ruled on September 18, 2026 that migrants must get effective notice and a real chance to raise torture claims before removal to a country not their own, while vacating two parts of the lower court's judgment for lack of standing.
Two Judges, One Boston Court, and a Deportation Case Bound for the Supreme Court Again
Before the Trump administration can put someone on a plane to a country that isn't theirs, it now has to tell them where they're going and let them say if they're afraid. That's the entire ruling a three-judge federal appeals panel handed down in Boston on Friday, September 18, 2026 [2][3]. It is not a ban. It is a notice requirement.
The panel sits on the First Circuit, and the decision was unanimous [1][2]. Circuit Judge Seth Aframe wrote the roughly 55-page opinion, joined by Judges Lara Montecalvo and Jeffrey Howard [2][3]. They mostly upheld a February 25, 2026 judgment from U.S. District Judge Brian Murphy, who had already thrown out the Department of Homeland Security's fast-track process for these removals as unlawful [1][2]. That process let DHS send someone to a "third country" — one that is neither their home nor a place they chose — often on short notice.
The panel didn't give the migrants everything they wanted, though. It vacated two specific pieces of Murphy's judgment: the parts requiring DHS to first try sending someone to a country they'd designated, or to their home country, before trying anywhere else [1]. The court's reasoning had nothing to do with the merits. It ruled the named plaintiffs lacked "standing" — legal permission to raise that particular claim, because they couldn't show they personally had been harmed by that piece of the policy [1]. That detail barely made it into most of the coverage on either side.
A Promise on Paper, and Who Gets to Judge It
At the center of this case is something called a diplomatic assurance: a receiving country's written promise that it won't torture or mistreat the person the U.S. is sending it. It costs the receiving government almost nothing to make that promise, and it's rarely enforceable if broken [12]. That's exactly why the panel, U.N. human rights experts, and immigration lawyers keep asking what's actually behind it before trusting it [3][5][12].
U.S. law carrying out the Convention Against Torture bars sending anyone somewhere they're likely to be tortured [13]. But that right only means something if the person knows their destination ahead of time and has a real chance to object. Plaintiffs' lawyers point to something they call chain refoulement: the U.S. sends someone to Country B, and Country B turns around and sends them onward to the home country the U.S. was legally barred from using in the first place [5].
The administration sees it differently. Federal law, specifically 8 U.S.C. § 1231, gives the executive branch broad authority to pick a country when a person's home country won't take them back [13]. Officials argue that if every new destination reopens another round of hearings, someone with a final removal order could stall deportation indefinitely just by naming country after country [10]. They also argue that judging whether a foreign government's word can be trusted is a diplomatic call, not something courts are equipped to referee [10].
Why Neither Side Wants to Wait
Underneath the legal fight is a blunter, practical problem: some countries simply refuse to take back their own citizens once the U.S. tries to deport them [13]. Without a third country willing to accept them, those people would otherwise sit in U.S. detention indefinitely. That's the real engine behind third-country deals, whatever language either side uses to describe them [13].
And detention isn't free or unlimited. Federal law caps how long someone can be held after a final removal order [13]. Every extra procedural step the courts require — like the new notice-and-response window — adds detention days, which means added cost, or forces DHS to release people it would rather not. Speed, for the administration, isn't just about enforcement optics. It's about budget and bed space [13].
Already, deportees under these third-country arrangements have landed in South Sudan, Eswatini, Uganda, Equatorial Guinea, Liberia, and the Central African Republic [4]. Those transfers already happened and a Boston court ruling doesn't undo them. The First Circuit's authority covers only Maine, Massachusetts, New Hampshire, Rhode Island, and Puerto Rico, so how far this ruling's protections reach elsewhere depends on unsettled questions about the certified class and the scope of the court's order voiding DHS's guidance.
The Same Ruling, Read Three Different Ways
DHS's own general counsel, James Percival, said publicly that removals will continue anyway, because the appeals court's decision "is not currently in effect" [15]. That single sentence set the tone for how the political right covered the story. PJ Media's headline said the court "lets Trump keep third-country deportations, but adds a big condition" — technically accurate, but it frames a DHS legal loss as a retained power [6]. The Epoch Times used similarly careful language, calling it a rejection of a "policy," while devoting more space to the likely trip back to the Supreme Court than to what the panel actually found about those diplomatic assurances [8].
Left-leaning coverage told a different story with the same facts. The American Prospect's headline read "Appeals Court Smacks Down Trump's Third-Country Removal Policy," leading with the panel's skepticism toward "blanket assurances" and the chain-refoulement risk [5]. Law & Crime built its headline around the court's most combative line — "we reject DHS's efforts" — and used the verb "blocks," which overstates a ruling that changed the process but not the underlying legality [3]. Reuters, distributed via U.S. News, stuck closer to the middle, reporting the affirmance and the case's likely return to the Supreme Court, though even that account left out the vacated standing claims [2].
Outside the U.S., Al Jazeera centered a different part of the story entirely: the destination countries and their human rights records, rather than the American administrative-law question the case actually turned on [4]. None of these framings is factually wrong on its own. They just each choose what to leave out.
What Comes Next
This case, D.V.D. v. DHS, has already been to the Supreme Court once. In 2025, the justices paused an earlier version of Judge Murphy's order while the appeal played out [9][11]. Given Percival's statement that DHS considers the new ruling not yet binding, another trip to the high court looks likely [15].
Restrictionist groups like the Center for Immigration Studies see an opening in that history: the Supreme Court already sided with the administration once, and the panel's decision to vacate the sequencing claims for lack of standing gives them a live argument that the lower court's class-wide order went too far to begin with [10]. Immigrant-rights advocates counter that the core finding stands regardless — that DHS's rapid-fire process denied people a meaningful chance to raise a torture claim before being sent somewhere new [3][5].
For now, the practical result is narrower than either side's loudest framing suggests. Third-country removals remain legal. DHS says it's still carrying them out. What's changed, at least within the First Circuit's reach, is that people are supposed to get told where they're going, and get a chance to say why that scares them, before the plane leaves [1][2][3].
Summary
On Friday, September 18, 2026, a three-judge panel of the U.S. Court of Appeals for the First Circuit, in Boston, largely upheld a lower-court judgment against the Department of Homeland Security's fast-track process for deporting people to "third countries" — nations that are neither their homeland nor a country they chose[1][2]. Judge Seth Aframe wrote the roughly 55-page opinion. Judges Lara Montecalvo and Jeffrey Howard joined it. The core holding: before DHS sends someone to a third country, it must give "effective notice" and a meaningful chance to say they fear torture or persecution there[2][3].
The ruling does not outlaw third-country deportations. Those remain legal. What the court struck was the streamlined process DHS used to carry them out quickly, which the panel found unlawful under the Administrative Procedure Act — the federal law that sets rules for how agencies must act[1]. The panel also did not give the plaintiffs everything. It vacated two declarations from the lower court that would have required DHS to try the person's designated or home country first, ruling the named plaintiffs had no legal standing to raise that "sequencing" claim[1].
The case is D.V.D. v. DHS, a class action that reached the Supreme Court once already. In 2025, the justices put an earlier order from U.S. District Judge Brian Murphy on hold while the appeal went forward[9][11]. Murphy then entered a final judgment on February 25, 2026, setting the DHS guidance aside; that is the judgment the panel has now mostly affirmed[1][2].
The main dispute is not really about whether torture is bad. Both sides say it is. The fight is over how much process the law requires before a plane leaves, and over who decides whether a receiving country's written promise of safe treatment can be trusted. The administration says Congress gave DHS wide latitude over where a removable person goes, and that added hearings turn final removal orders into endless litigation. The plaintiffs say a right against being sent to torture is worthless if you learn your destination only at the airport. DHS General Counsel James Percival said publicly that removals would continue because the appellate decision "is not currently in effect," pointing toward another trip to the Supreme Court[15].
The Event
On September 18, 2026, a unanimous three-judge panel of the U.S. Court of Appeals for the First Circuit issued its decision in D.V.D. v. U.S. Department of Homeland Security, No. 26-1212[1]. The panel, in an opinion by Circuit Judge Seth Aframe joined by Judges Lara Montecalvo and Jeffrey Howard, largely affirmed the February 25, 2026 judgment of U.S. District Judge Brian Murphy, which had set aside DHS guidance on rapid third-country removals as unlawful under the Administrative Procedure Act[1][2]. The panel vacated two declarations in that judgment — those concerning DHS's obligation to first seek removal to a country the noncitizen designated, or of which the person is a national — finding the representative plaintiffs lacked Article III standing on that claim[1]. DHS General Counsel James Percival stated that removals would continue because the decision "is not currently in effect"[15].
Undisputed Facts
- The First Circuit panel decision issued on Friday, September 18, 2026, and was unanimous among the three judges[1][2].
- Circuit Judge Seth Aframe wrote the opinion, which runs about 55 pages, joined by Judges Lara Montecalvo and Jeffrey Howard[2][3].
- The panel held that noncitizens must receive effective notice and a meaningful opportunity to present a fear-of-torture claim before DHS removes them to a third country[2][3].
- The panel vacated two declarations from the district court's judgment relating to the order in which DHS must try countries, citing the named plaintiffs' lack of Article III standing on that "sequencing" claim, and otherwise affirmed[1].
- The decision does not make third-country removals unlawful; it governs the process DHS must follow before carrying one out[1][6].
- The underlying case, D.V.D. v. DHS, began in the U.S. District Court for the District of Massachusetts in 2025 before Judge Brian Murphy, and the Supreme Court stayed his earlier injunction in 2025 while the appeal proceeded[9][11].
- The United States has removed people to third countries including South Sudan, Eswatini, Uganda, Equatorial Guinea, Liberia and the Central African Republic[4].
- DHS General Counsel James Percival said after the ruling that removals would continue because the appellate decision was "not currently in effect"[5].
The Pressure
Strip away the moralizing and blame. What structural realities persist regardless of which narrative wins?
- Home countries that won't take people back
- Third-country deals exist because some governments refuse to accept their own deported nationals. Without an alternative destination, a person with a final removal order stays in the U.S. or in detention. That is the practical engine behind the whole policy, regardless of how either side describes it[13].
- Detention costs the clock
- Federal law limits how long someone can be held after a removal order. Every added procedural step means more detention days, more bed-space spending, or releases the administration does not want. Speed is not only symbolic; it is budgetary[13].
- Assurances are cheap to write
- A diplomatic assurance is a promise from the receiving government not to mistreat or onward-deport the person. It costs the sending state almost nothing to obtain and is rarely enforceable. That is exactly why courts and U.N. experts keep asking what backs it up[12].
- Nationwide remedies are the live legal fault line
- The deeper fight is less about migrants than about whether one district judge can set aside an executive policy for everyone. The panel's vacatur of the sequencing declarations on standing grounds shows that fault line running through this very case[1].
Material realityThird-country removals are still lawful today, and DHS says it is still carrying them out[1][5]. What changed is the paperwork and the clock: within the First Circuit's reach, and for the certified class, DHS must tell a person where they are being sent and let them say they fear torture there before the flight[2][3]. People have already been sent to South Sudan, Eswatini, Uganda, Equatorial Guinea, Liberia and the Central African Republic under these arrangements[4]. Those transfers do not reverse themselves because of a ruling in Boston. The First Circuit's territory is Maine, Massachusetts, New Hampshire, Rhode Island and Puerto Rico; how far the relief reaches outside that territory depends on the class and the APA vacatur, and that reach is itself contested. The case has already been to the Supreme Court once[9][11]. It is very likely going back.
Narrative as a weaponThree groups are shaping how this lands. The administration wants you to read the ruling as procedural and temporary — a paperwork condition, not in effect yet, soon to be revisited by a Supreme Court that already sided with it once. Immigrant-rights litigators and left-leaning outlets want you to read it as a moral finding: that the government was shipping people to dangerous countries on unverified promises, and a court said stop. Non-Western outlets want you focused on the receiving countries and on whether the U.S. is outsourcing a domestic problem to governments with poor rights records. The detail that cuts against all three tidy stories is the same one most coverage skipped: the panel handed the plaintiffs a partial loss, vacating two declarations because the named plaintiffs could not show they were injured by that part of the policy. That is a court doing narrow work, not issuing a verdict on deportation.
How Each Side Sees It
Each major actor’s view — how it frames things, its underlying incentive, and how it’s materially affected. Tap a side to read it.
Frames it asThe government's strongest case is about who Congress put in charge. Federal immigration law, 8 U.S.C. § 1231, gives the executive branch a list of places it may send someone with a final removal order, and lets it pick an alternative country when the first choices will not work[13]. A final removal order is supposed to be final. Officials argue that if every proposed destination reopens a new round of claims and appeals, a person can stall removal forever by naming one country after another. They also argue that judging whether a foreign government's written promise is trustworthy is a diplomatic judgment, not a job for courts. And they note that a person already had a hearing on their home country — this is a second bite, not a first[10].
WhyRaise the number of removals and keep the tool that makes removal possible when a home country refuses to take its own nationals back[10][13].
Impact on themThe ruling adds a required notice-and-response step to a process the administration built for speed. DHS says it is not yet bound by the decision and has signaled a likely Supreme Court petition[5].
Frames it asTheir argument is that a right you cannot use is not a right. U.S. law implementing the Convention Against Torture bars sending anyone to a country where they are likely to be tortured — but you can only raise that claim if you know where the plane is going and have time to say so[13]. They point to chain refoulement: the U.S. sends a person to Country B, and Country B sends them on to the home country the U.S. was legally barred from using. They also argue that a one-paragraph diplomatic assurance from a government with a poor rights record is not evidence of safety, and that courts routinely review whether agencies followed their own statutes[3][5].
WhyStop removals to countries where class members say they face serious harm, and force a written, reviewable process[14].
Impact on themThe affirmance keeps the district court's vacatur of the DHS guidance in place, but the vacated "sequencing" declarations mean the class did not win a rule requiring DHS to try the home or designated country first[1].
Frames it asCountries such as Eswatini, South Sudan and Rwanda-style partners argue these are sovereign bilateral agreements, often paired with aid or diplomatic benefits, and that taking deportees is their choice to make. U.N. human-rights experts take the opposite side: they warned in 2025 that resuming third-country deportations without individual risk assessments could breach the non-refoulement rule — the bar on returning anyone to a place where they face torture[12]. Their point is that the duty attaches to each person, so a country-level promise cannot substitute for a case-by-case check.
WhyReceiving states want the diplomatic and financial upside; U.N. bodies want to preserve the non-refoulement standard as binding rather than negotiable[12].
Impact on themA slower U.S. process means fewer and later transfers under these deals, and more scrutiny of the assurances the deals rest on[4][12].
Frames it asGroups like the Center for Immigration Studies, which advocates lower immigration levels, argue the D.V.D. litigation is a single district judge setting national immigration policy, and note the Supreme Court already stayed an earlier order in this case — which they read as a signal the government is likely to win[10]. Their sharper point is about class-wide relief and APA vacatur: when one court sets aside a policy for everyone, it removes the normal path of individual immigration appeals and case-by-case review. They also emphasize that many class members have criminal convictions, which is why removal was ordered in the first place[10].
WhyPreserve enforcement tools and narrow the reach of nationwide remedies against executive action[10].
Impact on themA loss at the panel level; but the partial vacatur on standing gives them a live argument that class-wide relief in this case was overbroad[1].
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The Bias Ledger average rating 4.8
The same story, as framed by outlets across the spectrum, ordered least to most biased. The bias score (1 = straight, 10 = heavily spun) is an AI assessment of that framing — click an outlet to see its track record. The tell is the word choice or omission that reveals the angle.
| Outlet | Vantage | Bias | How they frame it | The tell |
|---|---|---|---|---|
| Reuters | U.S./international centrist wire | 2 | "US appeals court rejects Trump policy allowing swift deportations to third countries" — reports the affirmance, the Aframe opinion, and the case's path back toward the Supreme Court. | Uses "rejects" and "swift," which is accurate to the opinion, but the wire lead does not surface the two declarations the panel vacated for lack of standing. |
| The Epoch Times | U.S. right, founded by Falun Gong-affiliated practitioners | 4 | "Federal Appeals Court Rejects Trump Admin Policy of Swift 3rd-Country Deportations" — straightforward on the outcome, heavier on procedural posture and next steps. | Carefully says "policy," keeping the distinction the left-leaning headlines blur; but frames the ruling mainly as a waypoint before Supreme Court review. |
| Law & Crime | U.S. center-left legal press | 5 | "'We reject DHS's efforts': 1st Circuit blocks Trump admin's 3rd-country deportation policy as 'unlawful' under numerous federal statutes." | Builds the headline from the court's most combative quoted phrase. "Blocks" overstates: the practice continues, the process changed. |
| Al Jazeera | Qatari state-funded | 5 | "US court blocks Trump plan to deport migrants to third countries" — leads with the safety-concerns holding and lists the receiving countries and their rights records. | "Blocks" and "plan" imply the program was stopped. The emphasis is on destination states' repression rather than on the U.S. administrative-law question the case actually turned on. |
| PJ Media | U.S. right commentary | 6 | "The Court Lets Trump Keep Third-Country Deportations, but Adds a Big Condition." | Technically defensible and the least misleading headline on the legal substance — but the framing converts a loss for DHS into a retained power, and omits the panel's findings on diplomatic assurances. |
| The American Prospect | U.S. left / progressive advocacy magazine | 7 | "Appeals Court Smacks Down Trump's Third-Country Removal Policy" — foregrounds chain refoulement and the panel's doubts about "blanket assurances." | "Smacks down" is a verdict, not a description. Useful detail others missed — the Percival quote — sits inside a frame that treats the ruling as a defeat rather than a remand to process. |
References
- United States Court of Appeals For the First Circuit, No. 26-1212 (D.V.D. v. U.S. Dep't of Homeland Security), opinion — U.S. Court of Appeals for the First Circuit · primary source — federal court record
- US Appeals Court Rejects Trump Policy Allowing Swift Deportations to Third Countries — Reuters · international wire service; centrist house style
- 'We reject DHS's efforts': 1st Circuit blocks Trump admin's 3rd-country deportation policy as 'unlawful' under numerous federal statutes — Law & Crime · U.S. legal-news site, center-left framing
- US court blocks Trump plan to deport migrants to third countries — Al Jazeera · Qatari state-funded broadcaster
- Appeals Court Smacks Down Trump's Third-Country Removal Policy — The American Prospect · U.S. progressive advocacy magazine
- The Court Lets Trump Keep Third-Country Deportations, but Adds a Big Condition — PJ Media · U.S. conservative commentary site
- Lawyers see imminent decision in third-country deportation case — Semafor · U.S. centrist digital news startup
- Federal Appeals Court Rejects Trump Admin Policy of Swift 3rd-Country Deportations — The Epoch Times · U.S. right-leaning outlet founded by Falun Gong-affiliated practitioners
- Supreme Court Temporarily Allows Deportations to Third Countries — The Epoch Times · U.S. right-leaning outlet founded by Falun Gong-affiliated practitioners
- DHS Can Again Remove Criminal Aliens to Third Countries after Supreme Court Ejects D.V.D. — Center for Immigration Studies · U.S. think tank advocating reduced immigration; restrictionist
- Order in Pending Case, Department of Homeland Security v. D.V.D., No. 24A1153 — Supreme Court of the United States · primary source — federal court record
- UN experts alarmed by resumption of US deportations to third countries, warn authorities to assess risks of torture — Office of the UN High Commissioner for Human Rights · UN human-rights body; independent special-procedures experts
- 8 U.S. Code § 1231: Detention and removal of aliens ordered removed — Office of the Law Revision Counsel, U.S. House of Representatives · primary source — U.S. statute
- Practice Alert: Third Country Deportations and D.V.D. v. DHS (updated March 17, 2026) — National Immigration Litigation Alliance · immigrant-rights litigation nonprofit; plaintiff-side counsel in related cases
- Appeals court rejects Trump's third-country deportation policy, says detainees are entitled to more due process — CBS News · U.S. mainstream broadcast news; centrist-to-center-left house style