President Donald Trump speaks during a dinner in the Rose Garden of the White House, Thursday, Sept. 17, 2026, in Washington (AP Photo/Alex Brandon).
The Trump administration‘s often-litigated policy of deporting immigrants to “third” countries they are not from does not pass muster under federal law, a federal court of appeals ruled on Friday.
The upshot of the 55-page ruling is that “noncitizens be provided with effective notice and a meaningful opportunity to present a fear-of-torture claim before DHS may remove them to a third country.”
In March 2025, the underlying case was filed when several detained men challenged the controversial Department of Homeland Security (DHS) deportation directive. The case then snowballed when DHS attempted to deport eight men to South Sudan — men who are not Sudanese nationals. After a series of court orders, those men were detained on a U.S. military base in the East African country of Djibouti.
Since then, several developments have occurred, technically changing but not fundamentally altering the procedural posture of the dispute as it came before the U.S. Court of Appeals for the 1st Circuit.
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Last April, U.S. District Judge Brian E. Murphy, a Joe Biden appointee, determined the “third-country” policy violates the “bedrock principle” of due process. In turn, the court entered a declaratory judgment for the class-action plaintiffs — setting aside the policy as “unlawful.”
The stream of court orders in the case was steady — six from the district court; two from a court of appeals — and responsive to the Trump administration’s continued efforts to conduct such deportations. Murphy repeatedly rebuked the government — reiterating and clarifying orders; certifying the class to broaden the scope of relief — after immigrants were sent to El Salvador on two separate occasions in violation of another judge’s orders.
The district judge even jousted a bit with the U.S. Supreme Court. The government moved for a stay with the nation’s high court in May 2025. A majority granted the stay in June 2025. Undeterred, Murphy said the stay had no effect on a remedial order the district court issued after finding the government had repeatedly violated multiple court orders. In July 2025, however, the high court’s majority struck down the remedial order over a dissent by Justice Sonia Sotomayor.
Murphy finally issued his full merits ruling on the matter in February of this year. In March, the Trump administration approached the 1st Circuit for an emergency stay pending appeal, which was granted.
Now, the appellate court has reached its own conclusion on the merits — and found the government’s policy in violation of the Administrative Procedure Act (APA), the statute governing agency behavior.
“[T]he [policy] conflicts with the statutory and regulatory provisions governing fear-of-persecution claims insofar as it authorizes third-country removals without the provision of effective notice and a meaningful opportunity to assert such claims,” the opinion reads. “The [policy] is therefore unlawful under the APA.”
The appeals court rejected a Trump administration argument that attempted to short-circuit a panoply of existing rules, processes and protections governing the deportation of individuals with fear-of-persecution claims under various statutes.
“This argument assumes what the class disputes: that the duly enacted statutes and regulations applicable to fear-of-persecution claims leave room for the ‘more streamlined’ third-country removal process that the [policy] authorizes, i.e., removals without notice and a meaningful opportunity to assert fear-of-persecution claims,” the court summarizes.
The opinion goes on here at length:
But the question in this case is not whether, if the government were starting from scratch, it could by statute or regulation lawfully adopt the streamlined process for third-party removals contemplated by the Guidance; the question is whether that process is consistent with the applicable statutes and regulations that presently govern fear-of-persecution claims. As the district court properly concluded, it is not. The statute and regulations prescribe hearing-related procedures for fear-of-persecution claims with no exception for third-country removals.
“We reject DHS’s efforts to create such an exception from whole cloth,” the opinion continues.
The appeals court, notably, declined to reach the due process conclusion about the policy that motivated much of the district court’s opinion. But, the panel noted, this was because the statutes governing the case were sufficient on their own.
“In reading these requirements into the relevant statutory and regulatory provisions, we do not imply doubt about the merits of the district court’s due process analysis, whose force only bolsters our conclusion that this situation calls for application of the constitutional-avoidance canon,” the opinion goes on.
The panel also took the Trump administration to task for the basic contours of the third-country deportation policy, in a footnote.
“[W]e have some difficulty seeing how a receiving country can credibly provide blanket assurances that all removed noncitizens will not be persecuted or tortured there unless it intends to provide them with some sort of affirmative protection against rogue agents and non-state actors, who can be persecutors within the meaning of [one federal law], and torturers within the meaning of the [other federal laws].”
The post ‘We reject DHS’s efforts’: 1st Circuit blocks Trump admin’s 3rd-country deportation policy as ‘unlawful’ under numerous federal statutes first appeared on Law & Crime.
