Background
Four noncitizens brought a putative class action challenging Department of Homeland Security guidance governing the removal of people with final removal orders to countries not designated in their orders or identified during their removal proceedings. The March and July 2025 guidance allowed removal without further procedures when the State Department deemed a receiving country’s diplomatic assurances credible. Otherwise, DHS generally provided notice at least 24 hours before removal and referred only those noncitizens who affirmatively expressed fear for screening.
The district court certified a class and entered final judgment declaring that DHS must follow the statutory sequence for selecting removal countries and must give class members effective notice and a meaningful opportunity to assert fear of persecution or torture before third-country removal. It also vacated the guidance under the Administrative Procedure Act. DHS appealed, contesting class certification, jurisdiction, the merits, and the available remedies.
The Court’s Holding
The First Circuit held that the named plaintiffs lacked Article III standing to pursue the sequencing claim because they did not allege facts showing that DHS had disregarded the statutory order for selecting their removal destinations. It therefore vacated the two declarations requiring DHS first to seek removal to a country designated by a class member or to a country of which the person is a subject, national, or citizen.
The court otherwise affirmed. It upheld class certification and ruled that the Immigration and Nationality Act’s jurisdictional provisions did not bar the APA claims. It held that 8 U.S.C. § 1231(b)(3), the Foreign Affairs Reform and Restructuring Act, and their implementing regulations require effective notice and a meaningful opportunity to present persecution- or torture-based objections before removal to a third country. Because the guidance permitted removals without those protections, it was unlawful under the APA. The court also held that 8 U.S.C. § 1252(f)(1) did not bar the class-wide declaratory relief or vacatur of the guidance. It did not decide whether the guidance independently violated the Fifth Amendment.
Key Takeaways
- DHS must provide effective notice of a proposed third-country destination and a meaningful opportunity to raise applicable persecution- or torture-based claims before removal.
- The named plaintiffs lacked standing to obtain class-wide declarations enforcing the statutory sequencing rules for selecting countries of removal.
- The INA’s jurisdictional provisions did not foreclose the class’s APA challenge, and § 1252(f)(1) did not prohibit declaratory relief or APA vacatur.
Why It Matters
The decision preserves class-wide procedural protections for noncitizens facing removal to countries not contemplated by their removal orders. It also confirms within the First Circuit that DHS cannot substitute blanket diplomatic assurances or minimal notice for the individualized opportunity required by existing persecution- and torture-protection law.
At the same time, the ruling underscores that named class representatives must establish their own Article III injury for each distinct claim. The court therefore left the notice-and-opportunity relief intact while eliminating relief based on statutory sequencing.