Third-Country Removals Require Effective Notice and a Meaningful Opportunity to Raise Fear-Based Claims (and APA Vacatur/Declaratory Relief Survive INA § 1252(f)(1))

Case: D.V.D. v. U.S. Department of Homeland Security (1st Cir. Sept. 18, 2026)

I. Introduction

In D.V.D. v. U.S. Department of Homeland Security, the First Circuit reviewed a class action brought by noncitizens with final removal orders whom DHS, under March and July 2025 policy documents (the “Guidance”), sought to remove to “third countries”—countries neither designated in the removal orders nor identified in writing during prior removal proceedings. The plaintiffs alleged that DHS’s third-country removal practice was unlawful because it provided inadequate (or no) notice and no meaningful opportunity to present “fear-based claims,” i.e., claims that removal to the third country would result in persecution (statutory withholding) or torture (CAT/FARRA protection).

The appeal raised: (1) class certification and the propriety of classwide declaratory relief; (2) whether multiple INA provisions barred or channeled jurisdiction away from the district court; (3) whether governing statutes and regulations require process before third-country removals; (4) Article III standing for a late-raised “sequencing” theory under 8 U.S.C. § 1231(b)(2); and (5) whether 8 U.S.C. § 1252(f)(1) prohibits declaratory relief or APA “set aside” (vacatur) remedies.

II. Summary of the Opinion

• Class certification affirmed: The class satisfied Rule 23(a) and Rule 23(b)(2) because the relief sought was uniform—process protections before third-country removals. The court relied on the “indivisible” remedy principle from Wal-Mart Stores, Inc. v. Dukes.
• Jurisdictional defenses rejected: The court held the suit was not barred by 8 U.S.C. § 1252(g); not barred by 8 U.S.C. § 1252(a)(4) or FARRA § 2242(d); and not channeled into petitions for review by 8 U.S.C. § 1252(b)(9) (nor, effectively, by § 1252(a)(5)).
• Merits—sequencing: The court vacated (for lack of standing) the district court’s two declarations requiring DHS to follow the statutory country-of-removal hierarchy (“sequencing”) under 8 U.S.C. § 1231(b)(2)(A)-(D).
• Merits—fear of persecution: The court affirmed that 8 U.S.C. § 1231(b)(3) and related regulations implicitly require effective notice and a meaningful opportunity to raise fear-of-persecution claims before third-country removal; the Guidance conflicted with that scheme and was unlawful under 5 U.S.C. § 706(2)(A), (C).
• Merits—fear of torture: Although the district court had relied on procedural due process, the First Circuit affirmed on statutory/regulatory grounds, holding the FARRA/CAT and implementing regulations likewise require effective notice and a meaningful opportunity to raise fear-of-torture claims before third-country removal; the Guidance was unlawful under the APA for the same reason.
• Remedy—§ 1252(f)(1): Relying on Brito v. Garland, the court held § 1252(f)(1) does not bar classwide declaratory judgments, and extended the logic to hold it also does not bar APA vacatur of the Guidance.

III. Analysis

A. Precedents Cited (and How They Shaped the Decision)

1. Class certification and “indivisible” relief

• Nightingale v. Nat'l Grid USA Serv. Co. — supplied the abuse-of-discretion standard for reviewing class certification.
• Wal-Mart Stores, Inc. v. Dukes — the court used Wal-Mart’s formulation that Rule 23(b)(2) classes are proper when “a single injunction or declaratory judgment would provide relief to each member of the class,” rejecting DHS’s attempt to fracture the class based on members’ varying eligibility for specific downstream protections.
• Smith v. Bayer Corp. and United States v. Martínez-Mercado — supported the court’s waiver analysis and skepticism of DHS’s claim that future nonparties would be bound in a way undermining adequacy; the argument was not properly preserved.

2. Jurisdiction stripping and channeling under the INA

• Reno v. Am.-Arab Anti-Discrimination Comm. (“AADC”) — decisive for construing § 1252(g) narrowly to the “three discrete actions” listed, rather than adopting DHS’s but-for “arising from” theory.
• Dep't of Homeland Sec. v. Regents of the Univ. of Cal., INS v. St. Cyr, and Jennings v. Rodriguez — reinforced that neither § 1252(g) nor § 1252(b)(9) sweeps in all claims connected to removal; the key is whether the claim seeks review of a removal order, the decision to seek removal, or the process for determining removability.
• Kucana v. Holder and Gutierrez de Martinez v. Lamagno — supplied the interpretive presumption favoring judicial review, invoked to resist expansive readings of jurisdiction-stripping language.
• Kong v. United States and Aguilar v. U.S. Immigr. & Customs Enf't Div. of the Dep't of Homeland Sec. — First Circuit anchors rejecting but-for jurisdictional theories and emphasizing that claims not meaningfully addressable through the removal process are not forced into it by § 1252(b)(9).
• Ibarra-Perez v. United States — provided closely analogous support: removal to a country not mentioned in the order is not necessarily “execution” of the order for § 1252(g) purposes; and notice/opportunity-to-present-fear claims fit outside the jurisdictional bar.
• E.F.L. v. Prim and Rauda v. Jennings — distinguished as cases where petitioners sought to delay execution of removal orders pending collateral administrative matters; here, plaintiffs did not challenge removability or seek to halt removal categorically, but demanded process for third-country destination changes.

3. CAT/FARRA jurisdiction and the “arises under” framing

• Nasrallah v. Barr — contextualized 8 U.S.C. § 1252(a)(4) as channeling “causes or claims under [the CAT]” into petitions for review, but the First Circuit emphasized plaintiffs’ cause of action arose under the APA.
• Kapoor v. DeMarco — cited for the REAL ID Act channeling background of CAT review, again without converting APA challenges into CAT “causes or claims.”
• Saint Fort v. Ashcroft — used to read FARRA § 2242(d) as a non-jurisdiction-conferring clause rather than an independent jurisdiction-stripping provision for APA claims.

4. Merits: implied procedural requirements, due process concerns, and constitutional avoidance

• Mullane v. Cent. Hanover Bank & Tr. Co. — the opinion used Mullane’s core due-process insight to show why rights to contest removal destinations are hollow without notice and an opportunity to be heard.
• Califano v. Yamasaki — supplied the “congressional solicitude for fair procedure” presumption, supporting the inference of notice/hearing protections absent explicit contrary language.
• Zadvydas v. Davis — central for two propositions: (1) courts may read “significant limitations” into immigration statutes to avoid constitutional difficulties; and (2) “no enforceable right” language like § 1231(h) does not preclude habeas/APA-style challenges to unlawful agency action.
• A.A.R.P. v. Trump — used as a contemporary due-process benchmark (particularly criticizing ~24-hour notice with inadequate information) to underscore why the Guidance’s notice approach is deficient.
• Clark v. Martinez — supported consistent interpretation across related statutory/regulatory contexts, helping the court align persecution- and torture-protection procedural baselines.

5. Remedies and INA § 1252(f)(1)

• Brito v. Garland — binding First Circuit precedent that § 1252(f)(1) does not bar classwide declaratory relief; the court treated that holding as controlling despite DHS’s reliance on later Supreme Court decisions.
• Garland v. Aleman Gonzalez — DHS argued it broadened “restrain,” but the First Circuit emphasized Aleman Gonzalez reserved whether § 1252(f)(1) bars declaratory relief, so it did not overrule Brito.
• Williams v. Ashland Eng'g Co. and United States v. Perez — invoked to apply the law-of-the-circuit rule and reject the claim that Aleman Gonzalez clearly displaced Brito.
• Monsanto Co. v. Geertson Seed Farms — supported the proposition that vacatur is generally a “less drastic remedy” than an injunction, undermining arguments that vacatur is necessarily barred as “restraining” operations.
• Epic Sys. Corp. v. Lewis and Barnhart v. Sigmon Coal Co. — supplied anti-repeal-by-implication and negative-implication reasoning: Congress can bar declaratory relief explicitly (as in § 1252(e)(1)(A)), and courts should not infer extra remedial prohibitions in § 1252(f)(1).
• California v. Grace Brethren Church and Steffel v. Thompson — used (via Brito) to explain why declaratory relief can remain available even when injunctions are limited, particularly where federalism concerns are absent.
• Trump v. CASA, Inc. — cited to emphasize that limits on nationwide injunctions do not resolve whether APA vacatur is authorized; it left that issue open.
• Refugee & Immigrant Ctr. for Educ. & Legal Servs. v. Mullin, Immigrant Defs. L. Ctr. v. Noem, and Texas v. United States — cited to show an emerging post-Aleman Gonzalez consensus that § 1252(f)(1) does not bar APA vacatur.

B. Legal Reasoning

1. Jurisdiction: “about removals” is not “review of removal”

A central move in the opinion is the separation of (a) challenges to removability, removal orders, or the government’s discretionary choice to execute those orders, from (b) challenges to the procedures DHS must use when selecting and implementing a third-country destination not contemplated by the removal order. That separation:

• Defeats DHS’s broad § 1252(g) theory by aligning with AADC’s narrow reading and Kong’s rejection of but-for causation as the jurisdictional test.
• Defeats channeling under § 1252(b)(9) by characterizing the suit as neither review of an order of removal nor review of the process for determining removability (consistent with Regents and Jennings).
• Preserves the APA framing against CAT/FARRA channeling provisions (§ 1252(a)(4), FARRA § 2242(d)) by insisting the claim “arises under” the APA (a cause-of-action analysis), while still honoring Congress’s channeling of actual CAT merits claims into petitions for review.

2. Standing: the court draws a hard line on representative-plaintiff injury

Even though the district court declared DHS must follow the statutory country-selection hierarchy (“sequencing”), the First Circuit vacated those declarations because the representative plaintiffs did not plausibly allege that DHS disregarded any plaintiff’s § 1231(b)(2)(A) designation in favor of § 1231(b)(2)(D) citizenship-country removal. Under Spokeo, Inc. v. Robins, named class representatives must show personal injury for each claim they litigate; the sequencing theory emerged later and lacked a concrete injury tether.

3. Merits: process before third-country removal is implicit in the protection statutes/regulations

The court’s merits analysis is best understood as an “anti-nullification” argument: statutory and regulatory protection against persecution or torture becomes ineffectual if DHS can change the destination to a new third country without providing notice and a meaningful opportunity to invoke those protections as to that specific country.

a. Fear of persecution (statutory withholding)

• The court reads § 1231(b)(1)-(2) as making DHS’s removal authority (including third-country removal) “subject to” § 1231(b)(3). That subordination, combined with the adjudicatory character of withholding determinations, supports implied procedural prerequisites.
• It rejects DHS’s “no text creates this entitlement” argument by invoking standard interpretive practice in immigration law—particularly Zadvydas and constitutional avoidance—where a literal reading would create serious due-process problems.
• It rejects DHS’s reliance on § 1231(h) (“no substantive or procedural right”) by reading it in line with Zadvydas and pointing to merits review in Jama v. Immigr. & Customs Enf't and rejection of contrary arguments in Pavlovich v. Gonzales.
• It rejects the notion DHS may “streamline” procedures in a way that conflicts with existing statutes/regulations; the question is not policy desirability but legal compatibility.

b. Fear of torture (CAT/FARRA)

Crucially, the First Circuit affirmed without reaching the constitutional question the district court relied on. It instead interpreted the FARRA/CAT implementing scheme to include the same baseline procedural prerequisites: effective notice and a meaningful opportunity to present a fear-of-torture claim. The court’s reasoning combines:

• Structural logic similar to the withholding analysis (a protection right that is meaningless without notice/opportunity as to the destination).
• Textual/administrative logic that the scheme contemplates determinations and review (FARRA § 2242(d), 8 U.S.C. § 1252(a)(4)), implying adjudicatory process rather than destination-by-surprise removals.
• Consistency logic under Clark v. Martinez to avoid divergent interpretations of closely related fear-based adjudication regulations.

DHS’s reliance on regulatory warnings that CAT relief is “country specific” (8 C.F.R. §§ 208.17(b)(2) and 1208.17(b)(2)) failed because general notice of the possibility of removal elsewhere is not notice of the actual third-country destination, nor does it provide a meaningful chance to contest that destination based on torture risk.

4. APA unlawfulness: conflict with law triggers “set aside”

Having found the Guidance inconsistent with the statutory/regulatory requirements for fear-based protections, the court affirmed the APA remedy: agency action that is “not in accordance with law” or “in excess of statutory jurisdiction” must be “held unlawful and set aside” under 5 U.S.C. § 706(2)(A), (C).

5. Remedy: § 1252(f)(1) limits injunctions, not declaratory relief or vacatur

The court treated Brito v. Garland as controlling that § 1252(f)(1) does not bar declaratory relief. It then extended the same textual/structural reasoning to APA vacatur, emphasizing:

• § 1252(f)(1) speaks in injunction terms (“enjoin or restrain”), while the APA independently commands courts to “set aside” unlawful agency action.
• Vacatur is less coercive than injunction (Monsanto Co. v. Geertson Seed Farms), and Congress showed elsewhere it knows how to bar declaratory relief expressly (§ 1252(e)(1)(A)).
• Garland v. Aleman Gonzalez did not clearly decide the availability of classwide declaratory relief (it reserved it), preventing displacement of Brito under the First Circuit’s strict law-of-the-circuit doctrine (Williams v. Ashland Eng'g Co., United States v. Perez).

C. Impact

1. Operational constraints on DHS third-country removals

The decision effectively requires DHS, before third-country removal of covered class members, to provide (i) effective notice of the specific third-country destination and (ii) a meaningful opportunity to assert persecution and/or torture-based objections to that destination. The court affirmed vacatur of the Guidance to the extent it authorized removals without those safeguards, including situations where DHS relied on “credible diplomatic assurances” to remove without any notice.

2. Litigation architecture: pathway for district court APA challenges survives INA channeling

By rejecting broad readings of § 1252(g) and § 1252(b)(9), the opinion provides a blueprint for when district courts can hear systemic procedural challenges that arise after removability is determined—especially when the alleged illegality concerns destination selection and access to fear-based protections for newly selected countries.

3. Remedies: reinforces declaratory relief and strengthens the case for APA vacatur despite § 1252(f)(1)

The First Circuit’s refusal to treat declaratory judgments and APA vacatur as prohibited “restraints” under § 1252(f)(1) may influence remedial framing in immigration litigation, particularly as the Supreme Court continues to police injunction scope (Trump v. CASA, Inc.) while leaving APA vacatur unresolved.

4. Standing discipline for class representatives

The vacatur of “sequencing” declarations underscores that even in structural immigration litigation, representative plaintiffs must demonstrate claim-specific injury. Plaintiffs seeking to litigate statutory-hierarchy issues under § 1231(b)(2)(A)-(D) will need representatives who actually designated alternative countries and suffered a concrete departure from the statutory sequence.

IV. Complex Concepts Simplified

• Third-country removal: Deporting someone to a country not specified in their final removal order and not previously identified in writing during their removal proceedings.
• Sequencing: The statutory hierarchy in 8 U.S.C. § 1231(b)(2) about which countries DHS must attempt first (designated country, then citizenship/nationality, then “additional removal countries”). The First Circuit did not reach the merits of sequencing because the named plaintiffs lacked standing.
• Withholding of removal (§ 1231(b)(3)): A protection that bars removal to a specific country where the person’s life or freedom would be threatened for protected reasons; it is country-specific.
• CAT/FARRA protection: U.S. implementation of the Convention Against Torture—bars removal to a country where the person is likely to be tortured. Like withholding, it is country-specific.
• Effective notice and meaningful opportunity: More than a last-minute heads-up; the person must be told the intended destination with enough time and information to invoke the legal protections that depend on that destination.
• Jurisdiction stripping vs. channeling: Some INA provisions eliminate federal court jurisdiction entirely for certain claims; others require that particular claims be raised only through the petition-for-review process in the courts of appeals. The court held this case fit neither category because it challenged post-order procedures for third-country destination changes.
• APA vacatur (“set aside”): A remedy under 5 U.S.C. § 706(2) that nullifies unlawful agency action, restoring the legal status quo without necessarily issuing a coercive injunction.
• Constitutional avoidance: A canon that prefers statutory/regulatory interpretations that avoid serious constitutional problems when the text permits. The First Circuit used this to interpret the protection schemes to require notice/opportunity rather than deciding the Fifth Amendment question.
• Chain refoulement: Indirect return to danger—e.g., removal to Country A which then deports the person to Country B where they face persecution/torture; the court noted it as a factual concern but resolved the case on notice/opportunity rights to contest the third-country destination.

V. Conclusion

D.V.D. v. U.S. Department of Homeland Security establishes (within the First Circuit) a robust procedural baseline for third-country removals: DHS cannot rely on policy guidance to remove individuals to new, previously unidentified third countries without effective destination-specific notice and a meaningful opportunity to raise fear-of-persecution and fear-of-torture claims under the governing statutory and regulatory frameworks. The court simultaneously reinforced that many systemic, post-order procedural challenges are not barred by the INA’s jurisdiction-stripping/channeling provisions, and it preserved (and extended) the availability of classwide declaratory relief and APA vacatur notwithstanding 8 U.S.C. § 1252(f)(1). The only major retrenchment was on standing: “sequencing” relief fell because the named plaintiffs did not show they were personally harmed by a failure to follow the statutory country-selection hierarchy.