Status as of September 29, 2026. The Supreme Court has stayed the February 25 federal district court judgment restricting how DHS carries out some third-country removals and agreed to hear the case on the merits. On September 29, the Court granted the government's stay application in DHS v. D.V.D., No. 26A406, treated the application as a petition for a writ of certiorari and granted review as No. 26-426. The Court directed that briefing proceed in time for argument during its December 2026 session.

The Supreme Court's September 29 order changes the immediate legal position in the dispute over third-country removals. The February 25 order and judgment of the U.S. District Court for the District of Massachusetts are now stayed while the Supreme Court reviews the case.

The dispute concerns noncitizens with final removal orders whom the Department of Homeland Security seeks to remove to countries other than those previously designated or identified in their removal proceedings. The First Circuit ruled on September 18 that covered class members must receive effective notice and a meaningful opportunity to raise claims that they would face persecution or torture in the proposed third country.

The Supreme Court has not decided whether the DHS policy is ultimately lawful. Its September 29 action determines what happens while the case is under review and puts the underlying legal questions on the Court's merits docket.

What the Supreme Court did on September 29

DHS filed its emergency application on September 24 after the First Circuit largely affirmed the district court's final judgment. The challengers filed their opposition on September 28, and the government filed its reply on September 29.

Justice Ketanji Brown Jackson referred the application to the full Court on September 29. The Court then granted the government's request for a stay.

The order stays the February 25, 2026 order and judgment entered by the U.S. District Court for the District of Massachusetts in case No. 1:25-cv-10676.

The Court went further than deciding the emergency stay request. It treated the application as a petition for a writ of certiorari, granted the petition and linked the dispute to merits case No. 26-426.

The Clerk of the Supreme Court was directed to establish a briefing schedule allowing the case to be argued during the December 2026 argument session.

Justices Sonia Sotomayor, Elena Kagan and Ketanji Brown Jackson stated that they would have denied the government's stay application.

What is stayed right now

The district court's February 25 judgment required DHS to provide covered class members with effective notice that the government intended to remove them to a specified third country and a meaningful opportunity to contest that removal based on fear of persecution or torture.

The judgment also set aside the challenged March and July 2025 DHS third-country removal guidance under the Administrative Procedure Act.

Because the Supreme Court has stayed the February 25 order and judgment, the requirements imposed through that judgment are not presently enforceable while Supreme Court review continues. The judgment's setting aside of the DHS guidance is likewise stayed.

The Supreme Court did not decide on September 29 that the DHS guidance is lawful. That question is now among the issues the justices will consider on the merits.

The stay will remain in effect until the Supreme Court sends down its judgment in the case.

What the First Circuit decided

The case, D.V.D. v. Department of Homeland Security, involves a certified class of noncitizens with final removal orders who may be sent to countries that were neither designated in their removal orders nor identified in writing during their earlier proceedings.

On September 18, the U.S. Court of Appeals for the First Circuit affirmed most of the February 25 final judgment from the District of Massachusetts.

The appeals court concluded that covered class members are entitled to effective notice that DHS intends to remove them to a specified third country and a meaningful opportunity to contest the removal by raising a reasonable fear of persecution or torture in that country.

The First Circuit also upheld the district court's conclusion that the March and July 2025 DHS guidance was unlawful under the Administrative Procedure Act insofar as it authorized covered third-country removals without those protections.

One part of the district court judgment did not survive the appeal. The First Circuit held that the representative plaintiffs lacked Article III standing to pursue a separate claim about the statutory sequence DHS must follow when selecting a country of removal. It therefore vacated two declarations addressing that sequencing issue.

Why the case returned to the Supreme Court

The September application was the third request for emergency Supreme Court intervention arising from the same third-country removal litigation.

In June 2025, the Supreme Court stayed a preliminary injunction that had imposed additional procedures before third-country removals. In July 2025, the Court clarified the scope of that stay.

The current proceedings are different. The preliminary injunction was later dissolved, the district court entered a final judgment on the merits, and the First Circuit reviewed that final judgment.

The First Circuit had stayed the district court's final judgment while the appeal was pending. After issuing its September 18 decision, the appeals court dissolved that stay on September 23. DHS filed its new Supreme Court application the following day.

The Supreme Court has now agreed to review the underlying legal dispute rather than merely decide whether lower-court relief should remain in place temporarily.

How the DHS policy works

DHS guidance issued in March 2025 and reaffirmed in July distinguishes between third countries that have provided diplomatic assurances and countries that have not.

Under the guidance, when the State Department determines that assurances from a receiving country against persecution or torture are credible, DHS may carry out the removal without additional individualized procedures concerning fear of that destination.

When DHS does not have such assurances, the guidance calls for notice of the proposed country. A person who affirmatively expresses fear of persecution or torture may then be referred for screening.

The July guidance states that ICE will generally wait at least 24 hours after serving notice before carrying out a removal when credible diplomatic assurances are unavailable.

The First Circuit concluded that the framework did not provide the effective notice and meaningful opportunity required by the statutes and regulations governing covered persecution and torture claims.

What the government argues

In its Supreme Court filings, the government argues that the district court lacked jurisdiction over some or all of the claims and lacked authority to issue classwide declaratory relief and set aside the DHS guidance.

The government also argues that the guidance provides legally sufficient safeguards against removal to countries where a person would face persecution or torture.

DHS maintains that credible diplomatic assurances can permit removal without additional individualized procedures and that the lower-court requirements interfere with the execution of final removal orders and the government's arrangements with receiving countries.

Those are the government's arguments. The Supreme Court's September 29 stay does not resolve whether those arguments are correct.

What the challengers argue

The class members opposed the government's request for a stay. They argued that the February 25 judgment did not prohibit third-country removals and did not require the release of people from immigration detention.

They contend that DHS can carry out third-country removals while providing effective notice and an opportunity to raise claims that the individual would face persecution or torture in the proposed destination.

The challengers also argue that general diplomatic assurances from a receiving country cannot replace an individualized opportunity to raise a claim based on a person's own circumstances.

Their September 28 filing also emphasized that the current case concerns a final judgment after merits proceedings, unlike the preliminary injunction that the Supreme Court stayed in 2025.

What the Supreme Court will consider

The September 29 order identifies several questions for briefing and argument.

  • Jurisdiction: whether the district court had jurisdiction over the respondents' claims.

  • Classwide relief and APA vacatur: whether 8 U.S.C. § 1252(f)(1) permitted the district court to enter classwide declaratory relief and set aside the DHS guidance under the Administrative Procedure Act.

  • The legality of the guidance: whether the government's third-country removal guidance violates 8 U.S.C. § 1231(b), the Due Process Clause, the Foreign Affairs Reform and Restructuring Act, the Convention Against Torture or their implementing regulations.

  • Other issues: the order also permits the government to identify additional questions it considers appropriate to the proper disposition of the case.

The stay is not a final ruling on the policy

The distinction between the September 29 stay and a final merits decision is important.

The Supreme Court has suspended the operative effect of the February 25 district court judgment while it reviews the dispute. It has not yet held that DHS's third-country removal guidance complies with federal law, the Constitution or U.S. obligations concerning persecution and torture.

Those questions will now be addressed through merits briefing and oral argument. The Court's order calls for argument during the December 2026 session, but it does not specify the exact argument date.

What applies right now

  • The February 25 judgment is stayed: the District of Massachusetts order and final judgment are not presently enforceable while Supreme Court review continues.

  • The DHS guidance is no longer set aside by an operative judgment: the district court's APA vacatur is part of the judgment the Supreme Court stayed.

  • The Supreme Court has taken the case: the emergency application was treated as a certiorari petition and granted as case No. 26-426.

  • Argument is planned for December: the Court ordered a briefing schedule allowing argument during its December 2026 session.

  • The merits remain unresolved: the Supreme Court has not yet decided whether the third-country removal policy is lawful.

Frequently asked questions

Has the Supreme Court ruled on the DHS third-country removal policy?

The Court has ruled on the government's request for a stay, but not on the ultimate legality of the policy. On September 29, it stayed the February 25 district court judgment and granted review of the case.

What is in effect right now?

The February 25 district court order and judgment are stayed while the Supreme Court reviews the case. The lower-court requirements imposed by that judgment are therefore not presently enforceable through that judgment.

When will the Supreme Court hear the case?

The Court directed the clerk to establish a briefing schedule allowing argument during the December 2026 argument session. The September 29 order did not specify an exact argument date.

Official sources

Disclaimer: Factum Immigration is a journalistic publication. This article is provided for informational purposes only and does not constitute legal advice or create an attorney-client relationship. Immigration laws, regulations and agency practices may change. For advice about an individual case, consult a qualified immigration attorney or an accredited representative.