United States Court of Appeals
For the First Circuit
No. 26-1212
D.V.D.; M.M.; E.F.D.; O.C.G.,
Plaintiffs, Appellees,
v.
U.S. DEPARTMENT OF HOMELAND SECURITY; MARKWAYNE MULLIN,
Secretary of Department of Homeland Security (DHS); TODD
BLANCHE,* United States Attorney General; ANTONE MONIZ,
Superintendent of the Plymouth County Correctional Facility,
Defendants, Appellants,
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MASSACHUSETTS
[Hon. Brian E. Murphy, U.S. District Judge]
Before
Montecalvo, Howard, and Aframe,
Circuit Judges.
Sarah E. Welch, Counsel to the Assistant Attorney General,
with whom Matthew P. Seamon, Acting Assistant Director, Mary L.
Larakers, Senior Litigation Counsel, U.S. Department of Justice,
Civil Division, Office of Immigration Litigation, Drew C. Ensign, Deputy Assistant Attorney General, and Brett A. Shumate, Assistant Attorney General, were on brief for appellants.
* Pursuant to Federal Rule of Appellate Procedure
43(c)(2), Attorney General Todd Blanche is automatically
substituted for former Attorney General Pamela J. Bondi.
Matt A. Crapo, Christopher J. Hajec, Edwin E. Pieters, and
Federation for American Immigration Reform, on brief as amicus
curiae supporting appellants.
Trina Realmuto, with whom Kristin Macleod-Ball, Mary Kenney,
Olivia Callan, National Immigration Litigation Alliance, Matt
Adams, Leila Kang, Aaron Korthuis, Glenda M. Aldana Madrid,
Northwest Immigrant Rights Project, Anwen Hughes, and Human Rights First, were on brief for appellees.
Daniel Bowman, Rachel A. Romaniuk, Esther G. Gold, and Osborn
Maledon, P.A., on brief for Florence Immigrant & Refugee Rights
Project, Political Asylum / Immigration Representation (Pair)
Project, and National Immigrant Justice Center, on brief as amici curiae supporting appellees.
Amanda Lee-DasGupta, Mary S. Van Houten Harper, Michael D.
Hausfeld, Anjali Dhillon, Hausfeld LLP, Blaine M. Bookey, Center
for Gender & Refugee Studies, University of California College of Law, San Francisco, and Melissa Crow, Center for Gender & Refugee Studies, Washington, D.C., on brief for Center for Gender & Refugee Studies, Human Rights Watch, Asian Americans Advancing Justice-Atlanta, Al Otro Lado, and Amica Center for Immigrant
Rights, as amici curiae supporting appellees.
September 18, 2026
AFRAME, Circuit Judge. The U.S. Department of Homeland
Security ("DHS") appeals a final judgment in favor of a class of
noncitizens with final removal orders who, pursuant to DHS policy
documents issued in March and July of 2025 (collectively, "the
Guidance"), face removal to countries neither designated in their
removal orders nor identified in writing during prior removal
proceedings as potential countries of removal.1 Following the
parties' lead, we call these removals "third-country removals."
The final judgment contains five declarations that,
together, construe applicable law to require DHS to take three
actions when executing third-country removals that are not
contemplated by the Guidance: (1) to seek first to remove class
members to countries they have designated or of which they are
subjects, nationals, or citizens; (2) to provide class members
with effective notice of DHS's intention to remove them to a
specified third country; and (3) to provide class members with a
meaningful opportunity to contest removal to that third country on
the ground that they have a reasonable fear of being persecuted or
tortured there. See 28 U.S.C. § 2201(a). The judgment also
1 Other defendants-appellants include DHS Secretary
Markwayne Mullin; U.S. Attorney General Todd Blanche; and Plymouth County Correctional Facility Superintendent Antone Moniz, who is
the legal custodian of named plaintiff E.F.D. All these defendants-appellants are sued in their official capacities. To
simplify, we refer to defendants-appellants collectively as "DHS."
- 3 -vacates and sets aside the Guidance as unlawful under the
Administrative Procedure Act ("APA"). 5 U.S.C. § 706(2)(A), (C).
For reasons we shall explain, the representative
plaintiffs lack Article III standing as to their "sequencing"
claim. This requires us to vacate the two declarations regarding
DHS's obligation first to seek to remove class members to countries
they have designated for removal or of which they are subjects,
nationals, or citizens. Otherwise, we affirm the judgment.
I.
The district court has published three thorough
memoranda and orders addressing the many issues involved in this
litigation. D.V.D. v. U.S. Dep't of Homeland Sec. ("D.V.D. III"),
821 F. Supp. 3d 102 (D. Mass. 2026); D.V.D. v. U.S. Dep't of
Homeland Sec. ("D.V.D. II"), 786 F. Supp. 3d 223 (D. Mass. 2025);
D.V.D. v. Dep't of Homeland Sec. ("D.V.D. I"), 778 F. Supp. 3d 355
(D. Mass. 2025). Interested readers should consult those orders
for additional background. Here, we confine our discussion to
matters relevant to our disposition of this appeal.
On March 23, 2025, four noncitizens -- D.V.D., M.M.,
E.F.D., and O.C.G. -- filed this lawsuit as a putative class action
under, as is relevant here, the APA. See 5 U.S.C. § 706(2)(A),
(C). The complaint principally alleged that DHS had adopted a
new, unlawful policy of removing noncitizens with final removal
orders to "third countries" -- i.e., countries not mentioned in
- 4 -their final removal orders -- without providing them with
effective notice and a meaningful opportunity to claim that they
reasonably feared persecution or torture in those countries. We
refer to such claims collectively as "fear-based claims."
In support of this allegation, the plaintiffs relied
upon, inter alia, a February 18, 2025, directive issued by U.S.
Immigration and Customs Enforcement ("ICE"), an agency housed
within DHS. The directive, which was attached to the complaint,
instructed ICE officers to "review for removal" cases involving
noncitizens who had been granted protection from removal to one or
more specific countries based on a fear-based claim. The directive
ordered officers to "determine the viability of removal to a third
country and accordingly whether the alien should be re-detained."
The plaintiffs sought class certification and
provisional relief. On March 28, 2025, the district court granted
the plaintiffs a temporary restraining order, which DHS promptly
appealed and moved this Court to stay. Two days later, on March
30, 2025, while that appeal and motion to stay were pending, DHS
issued a policy document titled "Guidance Regarding Third Country
Removals." Under this policy document, prior to any third-country
removal,
DHS must determine whether that country has
provided diplomatic assurances that aliens
removed from the United States will not be
persecuted or tortured. If the United States
has received such assurances, and if the
- 5 -Department of State believes those assurances
to be credible, the alien may be removed
without the need for further procedures. If
the United States has not received those
assurances, or if the Department of State does
not believe them to be credible, DHS must
follow the procedures below.
DHS will first inform the alien of removal to
that country. Immigration officers will not
affirmatively ask whether the alien is afraid
of being removed to that country. . . .
Immigration officers will refer any alien who
affirmatively states a fear of removal to U.S.
Citizenship and Immigration Services (USCIS)
for a screening for eligibility for protection
under INA § 241(b)(3) and the Convention
Against Torture (CAT) for the country of
removal.
In cases where the alien affirmatively states
a fear, USCIS will generally screen the alien
within 24 hours of referral from the
immigration officer. This screening may be
done remotely. USCIS will determine whether
the alien would more likely than not be
persecuted on a statutorily protected ground
or tortured in the country of removal. If
USCIS determines that the alien has not met
this standard, the alien will be removed.
If USCIS determines that the alien has met this
standard . . . , USCIS will refer the matter
to the Immigration Court [either in the first
instance or through a motion to reopen, as
appropriate] . . . . Alternatively, ICE may
choose to designate another country for
removal.
Thus, the March 30, 2025, policy document does not
require DHS to give noncitizens notice before their removal to a
third country from which the State Department believes it has
received credible diplomatic assurances that noncitizens removed
- 6 -to that country will not be persecuted or tortured.2 And it
contemplates only minimal notice before removal to a third country
which has not given the State Department such assurances. After
DHS issued the March 30, 2025, policy document, this case largely
focused on that document's lawfulness and on certain
jurisdictional and remedial issues implicated by the plaintiffs'
challenge.
On April 7, 2025, this Court denied DHS's motion for a
stay of the temporary restraining order pending appeal. On
April 18, 2025, the district court granted the plaintiffs' motion
for class certification and granted in part their motion for a
preliminary injunction. The court certified the following class:
2 Nor does the March 30, 2025, policy document provide
protection against "chain refoulement." Chain refoulement occurs
when a country removes someone to a second country, which, in turn, sends the person to a third country to which the original removing country could not, often because of a finding that the person
likely would be persecuted or tortured if removed there. The class alleges that many of its members have been subject to chain
refoulement. See generally S. Comm. on Foreign Rels., Minority
Rep., At What Cost? Inside the Trump Administration's Secret
Deportation Deals 5 (2026) (stating that "[a]s of January 2026,
more than eighty percent of the migrants sent to third countries
paid by the United States to take them in have already returned to their country of origin or are in the process of doing so"). For
example, the class points to named plaintiff O.C.G. as an example of chain refoulement under DHS's third-country removal policy. An immigration judge granted O.C.G. withholding of removal to
Guatemala, his country of citizenship, meaning U.S. immigration
authorities could not remove him to Guatemala based on a likelihood that he would be persecuted there. Under DHS's third-country
removal policy, O.C.G. was removed to Mexico, and from there Mexico deported him to Guatemala.
- 7 -All individuals who have a final removal order
issued in proceedings under Section 240
[8 U.S.C. § 1229a], 241(a)(5) [8 U.S.C.
§ 1231(a)(5)], or 238(b) [8 U.S.C. § 1228(b)]
of the [Immigration and Nationality Act
("INA")] (including withholding-only
proceedings) whom DHS has deported or will
deport on or after February 18, 2025, to a
country (a) not previously designated as the
country or alternative country of removal, and
(b) not identified in writing in the prior
proceedings as a country to which the
individual would be removed.
The court also imposed on DHS several requirements designed to
provide class members, prior to any third-country removal, with
written notice that they face removal to a specified third country
and a meaningful opportunity to raise certain fear-based claims
about their removal to that country.
On April 22, 2025, DHS appealed the preliminary
injunction and moved this Court to stay the injunction pending
appeal. On May 16, 2025, we denied the motion for a stay. About
a month later, however, the U.S. Supreme Court granted DHS a stay
pending our disposition of the preliminary-injunction appeal and
its disposition of any subsequent petition for a writ of
certiorari. Following the Supreme Court's action, on July 9, 2025,
DHS reaffirmed by memorandum its intention to follow the March 30,
2025, policy document. See Memorandum from Todd M. Lyons, Acting
Director, ICE, to All ICE Employees, Third Country Removals
Following the Supreme Court's Order in Department of Homeland
Security v. D.V.D., No. 24A1153 (U.S. June 23, 2025) ("ICE must
- 8 -adhere to [former] Secretary of Homeland Security Kristi Noem's
[policy document.]"). The memorandum also clarified that ICE "will
generally wait at least 24 hours following service of the Notice
of Removal before effectuating removal" of a noncitizen to a third
country from which the State Department has not received credible
diplomatic assurances that individuals removed from the United
States would not be persecuted or tortured. As mentioned above,
we refer to the March 30, 2025, and July 9, 2025, policy documents
together as "the Guidance."
On February 3, 2026, this Court held oral argument on
DHS's appeal of the preliminary injunction. At argument, the class
renewed an earlier request that we terminate the appeal and remand
for the district court to dissolve the preliminary injunction, in
accordance with the district court's indicative order, and issue
merits rulings on pending motions to dismiss filed by DHS and for
partial summary judgment filed by the class. On February 20, 2026,
we granted the class's request, terminated DHS's appeal of the
preliminary injunction, and remanded.
On February 25, 2026, the district court entered a
memorandum and order dissolving the preliminary injunction and
resolving the class's claims. As is relevant here, the court first
rejected several challenges to its jurisdiction. The court then
held that, under applicable law, third-country removals pursuant
to the Guidance are unlawful in three ways.
- 9 -First, third-country removals under the Guidance are
inconsistent with the requirements of
8 U.S.C. § 1231(b)(2)(A)-(D), and related regulations, which
require DHS first to seek to remove class members to a class
member's designated country of removal and subsequently to a
country of which they are a subject, national, or citizen, before
removing them to third countries under 8 U.S.C. § 1231(b)(2)(E),
the statutory provision authorizing third-country removals. We
refer to compliance with this statutory hierarchy as "sequencing."
Second, third-country removals under the Guidance do not
comport with the notice-and-hearing requirements implicit in
8 U.S.C. § 1231(b)(3), and related regulations, which require DHS
to withhold the removal of eligible class members to countries,
including third countries, where their "life or freedom would be
threatened . . . because of [their] race, religion, nationality,
membership in a particular social group, or political opinion."
We refer to the claims of class members who would
invoke § 1231(b)(3), and related regulations, as
"fear-of-persecution claims."
Third, third-country removals under the Guidance do not
comport with the notice-and-hearing requirements imposed by the
Fifth Amendment's Due Process Clause with respect to the rights of
those seeking relief under the Foreign Affairs Reform and
Restructuring Act of 1998 ("FARRA"), Pub. L. No. 105-277, div. G,
- 10 -Title XXII, § 2242, 112 Stat. 2681, 2681-822 (codified as Note to
8 U.S.C. § 1231), and related regulations, which implement
Article 3 of the international Convention Against Torture ("CAT")
by prohibiting removal of all class members to countries where
they likely would be tortured. We refer to claims of class members
who would invoke the FARRA/CAT, and related regulations, as
"fear-of-torture claims." As noted already, we refer collectively
to these claims as "fear-based claims."
Based on these determinations, the district court issued
a final judgment containing the declaratory and APA-based relief
described above. Reduced to its essence, the judgment declared
applicable law to require DHS to engage in statutory sequencing
when removing all class members and to provide every class member
with effective notice and a meaningful opportunity to raise any
fear-based claim regarding their removal to a third country. The
judgment also set aside the Guidance as unlawful under the APA
insofar as it authorizes removals that do not comply with these
requirements.
This appeal followed.
II.
In its briefing, DHS first contests the scope of the
district court's remedial order and then challenges the court's
jurisdictional, merits, and class-certification rulings. To
facilitate our analysis, we address the issues in a different
- 11 -order. We start with class certification, next discuss the
jurisdictional challenges, then address the merits, and conclude
with questions of remedy.
A. Class Certification
DHS argues that the district court erred in certifying
the class. We review that decision for abuse of discretion. See,
e.g., Nightingale v. Nat'l Grid USA Serv. Co., 107 F.4th 1, 11
(1st Cir. 2024) (class-certification orders are reviewed for an
abuse of discretion). While this case was pending in the district
court, DHS did not seek an interlocutory appeal of the court's
class-certification order, see Fed. R. Civ. P. 23(f) (authorizing
petitions for permission from a court of appeals to challenge an
order granting or denying class certification), or a prejudgment
decertification of the class, see Fed. R. Civ. P. 23(c)(1)(C)
(authorizing amendment of an order granting or denying class
certification before final judgment). We now face an appeal of a
final judgment providing class-based relief. We therefore focus
on whether the class-based relief provided in that judgment meets
the requirements of Federal Rule of Civil Procedure 23.
Rule 23 imposes several requirements for class
certification. First, under Rule 23(a), the party seeking
certification must establish that
(1) the class is so numerous that joinder of
all members is impracticable; (2) there are
questions of law or fact common to the class;
- 12 -(3) the claims or defenses of the
representative parties are typical of the
claims or defenses of the class; and (4) the
representative parties will fairly and
adequately protect the interests of the class.
Fed. R. Civ. P. 23(a). Additionally, the class must satisfy at
least one of Rule 23(b)'s requirements. Wal-Mart Stores, Inc. v.
Dukes, 564 U.S. 338, 345 (2011). Here, the plaintiffs sought class
certification pursuant to Rule 23(b)(2), which requires that "the
party opposing the class has acted or refused to act on grounds
that apply generally to the class, so that final injunctive relief
or corresponding declaratory relief is appropriate respecting the
class as a whole." As the Supreme Court has explained:
The key to the [Rule 23](b)(2) class is the
indivisible nature of the injunctive or
declaratory remedy warranted -- the notion
that the conduct is such that it can be
enjoined or declared unlawful only as to all
of the class members or as to none of them
. . . . In other words, Rule 23(b)(2) applies
only when a single injunction or declaratory
judgment would provide relief to each member
of the class. It does not authorize class
certification when each individual class
member would be entitled to a different
injunction or declaratory judgment against
the defendant.
Id. at 360 (citation modified).
The district court certified the class after finding
that it met all four requirements of Rule 23(a) and satisfied the
requirements of Rule 23(b)(2). The court concluded that numerosity
was uncontested, that commonality and typicality were satisfied by
- 13 -the fact that all putative class members were asserting a common
right to notice and a meaningful opportunity to present a
fear-based claim before removal to a third country, and that the
identified representatives would fairly and adequately represent
the class. Then, following the development of a summary-judgment
record, the court issued a final judgment which, as we have
explained, declared DHS's legal obligations to engage in statutory
sequencing and to provide class members with notice and a
meaningful opportunity to raise fear-based claims. The court
provided this relief, along with vacatur of the Guidance, to all
class members after determining that all class members were
entitled to such relief and that no class member was entitled to
any relief that differed from that provided to all other class
members. The district court thus acted consistently with Rule 23,
given the class's claims and the remedies sought. Id.
DHS's principal arguments to the contrary present
variants of two underlying assertions. The first is that all class
members do not have the same downstream procedural rights and the
same entitlement to assert the same fear-based claims. The second
is that the representative parties are not identically situated to
each other and the class in terms of whether they have been awarded
relief based on a fear-based claim and whether they will raise
such claims concerning removal to a third country. But as the
district court recognized, whether all class members are similarly
- 14 -situated along these lines does not matter for class-certification
purposes. What matters is that all class members are similarly
situated as to the specific allegations at the heart of this case:
(1) entitlement to sequencing, and (2) entitlement to notice and
an opportunity to assert fear-based claims before removal to a
third country.3 That some may claim fear of persecution
under § 1231(b), others fear of torture under the FARRA/CAT, and
still others fear of both does not affect the uniform relief
granted by the district court.
DHS offers two additional class-certification arguments
that warrant only brief discussion. The first is premised on the
fact that the class includes noncitizens who have expedited removal
orders, see 8 U.S.C. § 1225(b)(1), that have been reinstated,
see § 1231(a)(5). DHS seeks to establish the divisibility of the
class, and thus its impropriety, see Wal-Mart Stores, 564 U.S. at
360, by observing that expedited removal orders cannot be
3 DHS observes, correctly, that the class includes some
members who are ineligible to assert fear-of-persecution claims
under § 1231(b)(3). That is because certain individuals are
statutorily ineligible for such protection based on their history of engaging in persecution themselves, their criminal history, or the danger they pose to national security, among other factors.
See 8 U.S.C. § 1231(b)(3)(B) (listing groups of noncitizens who
are ineligible to raise a claim of likely persecution). But DHS
does not dispute that every member of the class is entitled to
assert a fear-of-torture claim under the FARRA/CAT. See 8 C.F.R. §§ 208.16(c), 208.17, 1208.16(c), 1208.17. Thus, while
some class members may not assert fear-of-persecution claims, all class members may assert a fear-based claim of some sort.
- 15 -challenged in a class action for declaratory relief because
of § 1252(e)(1)(A). That provision prevents a court from
granting declaratory relief with respect to expedited removal
orders under § 1225(b)(1). DHS also points to the more general
limits contained in § 1252(e)(1)(B), which circumscribe a court's
power to certify classes of noncitizens with expedited removal
orders. But the premise of this argument is incorrect. The class
does not include noncitizens whose operative removal orders are
expedited removal orders under § 1225(b)(1); it includes only
noncitizens with such orders that have been reinstated pursuant to
§ 1231(a)(5). And § 1252(e)(1)(A) and (B) do not apply to
reinstated removal orders under § 1231(a)(5). See
8 U.S.C. § 1252(e) ("Judicial review of orders under section
1225(b)(1)").
DHS also contests the adequacy of the representative
parties because "the class is not limited to a defined set of
aliens . . . but instead purports to include '[a]ll' aliens in the
future who will be removed to a third country." DHS asserts,
without further elaboration, that this fact renders the
representative parties inadequate because "if this Court or the
Supreme Court rules against [the plaintiffs] on the merits, every
alien in the future will be bound by the judgment and thus
precluded from bringing his own challenge to the Guidance or
similar third-country removal policy in the future." But because
- 16 -final judgments rarely bind non-parties to a lawsuit, see Smith v.
Bayer Corp., 564 U.S. 299, 312-13 (2011), it is difficult to see
how future parties would be bound by a judgment for DHS. In any
event, DHS neither presented this argument to the district court
nor argues to this Court that the alleged mistake constitutes plain
error. Accordingly, we regard the argument as waived. See, e.g.,
United States v. Martínez-Mercado, 132 F.4th 61, 68-69 (1st Cir.
2025).
B. Jurisdictional Issues
DHS argues that the district court lacked jurisdiction
over the class's APA claims pursuant to several provisions of the
INA that either strip or channel federal-court jurisdiction. We
address the applicability of these provisions seriatim.
1. 8 U.S.C. § 1252(g)
DHS first argues that this lawsuit is entirely precluded
by § 1252(g), a jurisdiction-stripping provision added to the INA
by the Illegal Immigration Reform and Immigrant Responsibility Act
of 1996 ("IIRIRA"). See Reno v. Am.-Arab Anti-Discrimination Comm.
525 U.S. 471, 472-73 (1999) ("AADC"). Section 1252(g), captioned
"Exclusive jurisdiction," states in relevant part that "[e]xcept
as provided in [§ 1252] . . . no court shall have jurisdiction to
hear any cause or claim by or on behalf of any alien arising from
the decision or action . . . to commence proceedings, adjudicate
cases, or execute removal orders." 8 U.S.C. § 1252(g).
- 17 -The district court rejected DHS's § 1252(g) argument,
reasoning that this section reaches only claims based on DHS's
exercise of prosecutorial discretion and not policy challenges
such as those brought by the class. DHS contests this ruling by
advancing the same but-for reading of the statute that it
unsuccessfully pressed below. DHS starts with an assertion that
the class's claims are barred by the statute because "a claim about
where an alien will be removed is, ipso facto, a 'claim' 'arising
from the decision or action' to 'execute [a] removal order[].'"
"Indeed," the argument continues, "if the government were not
'execut[ing a] removal order' against an alien, the alien would
not even be a member of the class here, much less have standing to
challenge the Guidance." "By definition then," the argument
concludes, "each and every class member necessarily is raising a
claim arising out of the government's action to execute his removal
order."
As an initial matter, an essential premise of DHS's
argument -- that third-country removals pursuant to the Guidance
are "decision[s] or action[s]" to "execute" the class's "removal
order[s]" -- is flawed. Removal orders are not mere directives
that noncitizens be removed from the country; such orders also
must "identify a country, or countries in the alternative, to which
the alien's removal may in the first instance be made, pursuant to
the provisions of [§ 1231(b)]." 8 C.F.R. § 1240.12(d); see also
- 18 -id. § 1240.10(f) ("The [immigration judge] shall also identify for
the record a country, or countries in the alternative, to which
the alien's removal may be made pursuant to [§ 1231(b)(2)] if the
country of the alien's designation will not accept him or her into
its territory, or fails to furnish timely notice of acceptance, or
if the alien declines to designate a country."). Further, removal
orders explicitly require DHS to observe § 1231(b)'s other
constraints on its authority when it cannot remove a noncitizen to
the country or countries identified in his or her removal order.
Id. § 1240.12(d) ("In the event that [DHS] is unable to remove the
alien to the specified or alternative country or countries, the
[removal] order . . . does not limit the authority of [DHS] to
remove the alien to any other country as permitted by [§ 1231(b)]."
(emphasis added)); see also id. §§ 208.16(f), 241.15, 1208.16(f).
The class does not contest its removability. Nor does
it challenge the validity of its removal orders, seek to delay or
thwart the execution of those orders, or deny that its members can
be removed lawfully to third countries based on those orders.
Rather, the class seeks a declaration that its members cannot
lawfully be removed to third countries, as permitted by § 1231(b),
without first being provided effective notice and a meaningful
opportunity to raise fear-based claims concerning those countries.
The class contends that carrying out removals without providing
these two essential components of due process ignores legal
- 19 -requirements implicit in the scheme permitting their removal to a
country not identified in their removal orders. See Mullane v.
Cent. Hanover Bank & Tr. Co., 339 U.S. 306, 314 (1950) ("An
elementary and fundamental requirement of due process in any
proceeding which is to be accorded finality is notice reasonably
calculated, under all the circumstances, to apprise interested
parties of the pendency of the action and afford them an
opportunity to present their objections.").
We address the merits of the class's argument below.
For now, it suffices to observe that a claim directed at DHS's
adoption of policies involving identification of a country of
removal not contemplated by the removal order does not arise from
the decision or action to "execute" that order. § 1252(g). If
anything, it arises from the decision or action not to execute the
country-designation aspect of the removal order when removing
class members. Thus, the challenge here is not to DHS's decision
or action to "execute" class members' removal orders even under
DHS's but-for reading of § 1252(g). See Ibarra-Perez v. United
States, 154 F.4th 989, 997 (9th Cir. 2025) (explaining that removal
to a country not mentioned in one's order of removal is not
"execution" of the removal order under § 1252(g)).4
4 This conclusion is reinforced by the "familiar principle
of statutory construction" that, "[w]hen a statute is 'reasonably susceptible to divergent interpretation, we adopt the reading that accords with traditional understandings and basic principles: that
- 20 -In any event, as the district court recognized, DHS's
but-for reading of § 1252(g) is foreclosed by Supreme Court
precedent. The Supreme Court has held that § 1252(g) does not
strip jurisdiction over all cases involving claims challenging
removals; rather, it only does so when the claim involves one of
the "three discrete actions" listed in § 1252. See AADC, 525 U.S.
at 482. To harmonize § 1252(g) with other provisions of the INA
following enactment of the IIRIRA, the Court has read the statute
to strip jurisdiction only over challenges to decisions or actions
to deny requests for discretionary relief from removal (such as
deferred action) and instead to commence proceedings, adjudicate
cases, or execute removal orders against noncitizens. See id. at
482-85; see also Dep't of Homeland Sec. v. Regents of the Univ. of
Cal., 591 U.S. 1, 19 (2020) (reaffirming that § 1252(g) does not
cover "all claims arising from deportation proceedings"); INS v.
St. Cyr, 533 U.S. 289, 311 n.34 (2001) (similar); Jennings v.
Rodriguez, 583 U.S. 281, 294 (2018) (plurality opinion) (stating
that AADC did not interpret § 1252(g) "to sweep in any claim that
can technically be said to 'arise from' the three listed actions"
executive determinations generally are subject to judicial
review.'" Kucana v. Holder, 558 U.S. 233, 251 (2010) (quoting
Gutierrez de Martinez v. Lamagno, 515 U.S. 417, 434 (1995)); see
also id. ("We have consistently applied [the interpretive
principle quoted above] to legislation regarding immigration, and particularly to questions concerning the preservation of
federal-court jurisdiction.").
- 21 -but instead "to refer to just those three specific actions
themselves"); Jennings, 583 U.S. at 355 (Breyer, J., dissenting)
(agreeing with the plurality’s understanding on this point). And,
as we have stated, this is not a case involving requests by
noncitizens for discretionary relief from the execution of their
removal orders.
Circuit precedent also conflicts with DHS's but-for
reading of the statute. In Kong v. United States, 62 F.4th 608
(1st Cir. 2023), we considered whether § 1252(g) barred a
noncitizen's Federal Tort Claims Act claim that arose from his
arrest and detention for the purpose of removing him to Cambodia.
Id. at 608-09. We held that it did not. In so ruling, we confirmed
that while "[the petitioner's] claim of improper detention 'arose
from' the government's decision to execute his removal" in a
but-for sense, id. at 613, reading § 1252(g) to bar his claim would
be contrary to the Supreme Court decisions discussed above, see
id. at 612-13.
Moreover, we explained, reading § 1252(g) to foreclose
the petitioner's claim also would conflict with prior circuit
precedent rejecting a but-for reading of the statutory phrase
"arising from" in the context of § 1252(b)(9), a
jurisdiction-channeling provision of the INA that we discuss
below. See Kong, 62 F.4th at 613-17 (analyzing Aguilar v. U.S.
Immigr. & Customs Enf't Div. of the Dep't of Homeland Sec., 510
- 22 -F.3d 1, 9-12 (1st Cir. 2007)). Finally, we noted that construing
§ 1252(g) to permit the petitioner's claim to proceed was
consistent with cases from other circuits. Id. at 617-18 (citing
Arce v. United States, 899 F.3d 796, 800 (9th Cir. 2018) (holding
that a challenge to removal in violation of a judicial stay order
was not barred by § 1252(g)), Madu v. Att'y Gen., 470 F.3d 1362,
1368 (11th Cir. 2006) (explaining that a challenge to the legality
of detention was distinct from a challenge to the government's
discretionary decision to execute a removal not barred
by § 1252(g)), and Garcia v. Att'y Gen., 553 F.3d 724, 729 (3d
Cir. 2009) (stating that § 1252(g)'s jurisdictional bar does not
apply when a petitioner "is not challenging the discretionary
decision to commence proceedings, but is challenging the very
authority to commence those proceedings")); see also Ibarra-Perez,
154 F.4th at 997 (holding post-Kong that § 1252(g) did not bar a
noncitizen's claim that "he had a right to meaningful notice and
an opportunity to present a fear-based claim before he was removed
to [a third country]").5
5 DHS cites E.F.L. v. Prim, 986 F.3d 959, 965 (7th Cir.
2021), and Rauda v. Jennings, 55 F.4th 773, 777-78 (9th Cir. 2022), for the proposition that "[§] 1252(g) is not limited to only the
discretionary aspects of the [three actions specified in the
statute]; its text reaches 'any' action taken to 'execute removal orders.'" But these cases differ fundamentally from the present
action. Both involved requests from noncitizens that courts delay the execution of their removal orders while certain administrative petitions they had filed remained pending. See E.F.L., 986 F.3d
at 961-62; Rauda, 55 F.4th at 775-76. In both cases, the
- 23 -Again, the class is not challenging DHS's discretionary
decision or action to proceed with the removal of class members.
Nor is it challenging DHS's authority to remove class members to
third countries. Rather, the class is challenging the lawfulness
of DHS conducting third-country removals without first providing
class members with effective notice and a meaningful opportunity
to raise any fear-based claims they might have about removal to a
particular third country. Accordingly, under Supreme Court and
circuit precedent, the class's claims are not barred by § 1252(g).
As the district court recognized, the mere fact that the class's
potential fear-based claims would not have arisen but for DHS's
decision or action to remove class members does not bring the
claims within § 1252(g)'s bar on jurisdiction.
2. 8 U.S.C. § 1252(a)(4) and FARRA § 2242(d)
DHS next argues that the district court erred by
rejecting its argument that 8 U.S.C. § 1252(a)(4) and § 2242(d) of
noncitizens sought to avoid the jurisdictional bar by casting their requests as challenges to the government's authority to remove
them while their petitions were pending, and in both cases, the
court rejected their recharacterization efforts and emphasized
that § 1252(g) precludes all challenges to the government's
decision to execute a removal order, regardless of how the
challenge is framed. See E.F.L., 986 F.3d at 964-965; Rauda, 55
F.4th at 777-78. Here, as we have explained, the class does not
challenge the decision to execute their removal orders. Rather,
it seeks a declaration that class members are entitled to effective notice and a meaningful opportunity to raise fear-based claims if the government seeks to carry out their removals to countries not contemplated by their removal orders.
- 24 -the FARRA strip it of jurisdiction over the class's
fear-of-torture-related claim. That claim, again, is that the
Guidance violates the APA insofar as it authorizes third-country
removals without giving class members effective notice and a
meaningful opportunity to assert, under the FARRA/CAT, a
fear-of-torture claim with respect to the third country.
Section 1252(a)(4) states in relevant part that "[n]otwithstanding
any other provision of law (statutory or non-statutory), including
[§] 2241 of [T]itle 28, . . . a petition for review filed with the
appropriate court of appeals . . . shall be the sole and exclusive
means for judicial review of any cause or claim under [the CAT]."
Section 2242(d) of the FARRA states in relevant part:
[N]othing in this section shall be construed
as providing any court jurisdiction to
consider or review claims raised under [the
FARRA/CAT] or this section, or any other
determination made with respect to [the
FARRA/CAT's policy to refrain from sending any
person to a country where there are
substantial grounds for believing the person
would be in danger of being subjected to
torture], except as part of the review of a
final order of removal . . . .6
6 In framing its jurisdictional challenge to the district
court's FARRA/CAT ruling, DHS quotes § 2242(d) as stating that "no court shall have jurisdiction to review . . . any . . . determination made with respect to the application of [the
FARRA/CAT] . . . except as part of the review of a final order of removal." These ellipses render the quotation materially
inaccurate. Section 2242(d) in fact states that "no court shall
have jurisdiction to review the regulations adopted to implement
this section." (emphasis added). Only after this underscored
language does the statute state what we quote in the text. And
the provision we quote in the text does not purport to oust courts
- 25 -The district court rejected DHS's jurisdiction-stripping
argument, insofar as it is premised on § 1252(a)(4), because the
class's APA claim is not a "cause or claim under [the FARRA/CAT]."
See Am. Well Works Co. v. Layne & Bowler Co., 241 U.S. 257, 260
(1916) ("A suit arises under the law that creates the cause of
action."). DHS challenges this ruling with the following argument:
"But [the] CAT, a non-self-executing treaty, does not itself create
any justiciable cause of action. If the court were correct,
[§] 1252(a)(4) would not apply to any claims and would effectively
be rendered meaningless. That cannot be right."
This argument is confusing. Congress enacted
§ 1252(a)(4) as part of the REAL ID Act of 2005 to clarify, as the
text of the statute says, that noncitizens may not raise CAT claims
in habeas corpus petitions under 28 U.S.C. § 2241. See, e.g.,
Nasrallah v. Barr, 590 U.S. 573, 580-81 (2020); Kapoor v. DeMarco,
132 F.4th 595, 606-10 (2d Cir. 2025). The statute will continue
to do this work irrespective of anything we decide here. Thus, we
do not render § 1252(a)(4) meaningless by agreeing with the
district court. And the court was clearly correct in holding
that § 1254(a)(4) did not deprive it of jurisdiction. As the court
of jurisdiction found elsewhere; it merely disclaims that it should serve as a source of jurisdiction. See Saint Fort v. Ashcroft,
329 F.3d 191, 201 (1st Cir. 2003).
- 26 -stated, the class's fear-of-torture-related claim arises under the
APA, not the FARRA/CAT, so § 1252(a)(4) does not apply.
Turning to FARRA § 2242(d), the district court rejected
DHS's jurisdiction-stripping argument insofar as it is premised on
that section because the relevant portion of the statute, quoted
above, says only that it does not provide jurisdiction; it does
not purport to repeal jurisdiction elsewhere provided. See Saint
Fort v. Ashcroft, 329 F.3d 191, 201 (1st Cir. 2003). DHS
challenges this aspect of the court's ruling with the following
argument:
But [the court's] myopic reading overlooks
that [§] 2242(d) states that "nothing" in
[the] FARRA supplies jurisdiction to review
CAT claims "except" as part of a final order
of removal. That language is best read to
mean that CAT claims may be reviewed only via
a petition for review. The court's contrary
reading . . . violates the INA's command that
a petition for review is the "sole and
exhaustive means" to review CAT claims
"[n]otwithstanding any other provision of
law." 8 U.S.C. § 1254(a)(4).
DHS's argument is built from two premises: first, that
the class's fear-of-torture-related claim is a CAT claim, and
second, that the district court construed the INA to permit CAT
claims to be asserted outside the petition-for-review process.
Neither premise is accurate. As we have just explained, the
class's fear-of-torture-related claim arises under the APA, not
the FARRA/CAT. Moreover, the court clearly appreciated the
- 27 -distinction; it did not express any view on whether the INA permits
a "cause or claim under [the FARRA/CAT]" to be asserted outside
the petition-for-review process as that is not an issue in this
case. The court correctly ruled that § 2242(d) of the FARRA did
not deprive it of jurisdiction over the class's
fear-of-torture-related claim because that claim arises under the
APA, not the CAT.7
3. 8 U.S.C. § 1252(a)(5) and (b)(9)
DHS's final jurisdictional argument is that, even
if applicable law does not strip the federal courts of jurisdiction
7 DHS concludes its case for treating the class's
fear-of-torture-related claim as jurisdictionally barred with two brief additional arguments. First, DHS argues that the district
court erred in failing to recognize that the claim is barred under the provision of the FARRA § 2242(d) stating that "no court shall have jurisdiction to review the regulations adopted to implement
this section." DHS contends that this bar applies because the
class's fear-of-torture-related claim "seek[s] additional procedures with respect to [the] CAT beyond those prescribed by
the Executive in the applicable regulations," and thus constitutes a challenge to the regulations. We reject this characterization
of the class's claim. The class does not seek to engraft
"additional procedures" onto the FARRA/CAT regulations; rather, it contends that effective notice and a meaningful opportunity to
raise fear-of-torture claims are implicitly guaranteed by those
regulations as they currently exist and that the Guidance is
unlawful because it conflicts with these existing regulations.
Second, DHS argues that the court erred in failing to apply
§ 2242(d)'s jurisdictional bar to the fear-of-torture-related
claim because the claim challenges a "determination made with
respect to the application of the policy set forth in subsection
(a)," which in turn implements the CAT. But § 2242(d)'s
jurisdictional bar does not apply to challenges to such
determinations; it applies only to challenges to the CAT
regulations. See supra note 6. DHS's argument is thus built on a
misconstruction of the statute.
- 28 -to entertain the class's claims regarding its ability to assert
fear-based claims in connection with third-country removals, the
district court could not entertain those claims because they may
only be asserted in petitions for review of final orders of removal
in the courts of appeals. DHS relies upon two
jurisdiction-channeling provisions in the INA: § 1252(a)(5) and
(b)(9). Section 1252(a)(5), captioned "Exclusive means of
review," states in relevant part that "a petition for review filed
with an appropriate court of appeals . . . shall be the sole and
exclusive means for judicial review of an order of removal."
Section 1252(b)(9), captioned "Consolidation of questions for
judicial review," states in relevant part:
Judicial review of all questions of law and
fact, including interpretation and
application of constitutional and statutory
provisions, arising from any action taken or
proceeding brought to remove an
alien . . . shall be available only in
judicial review of a final order under this
section. Except as otherwise provided in this
section, no court shall have
jurisdiction . . . to review such an order or
such questions of law or fact.
Focusing primarily on § 1252(b)(9),8 the district court
rejected DHS's alternative, jurisdiction-channeling argument for
8 The district court focused on § 1252(b)(9) because DHS
did not develop an argument for application of § 1252(a)(5) that
was independent of its § 1252(b)(9) argument. Because DHS takes
the same approach on appeal, we follow suit. But in doing so, we
note that § 1252(a)(5) would seem to be inapposite because, for
- 29 -reasons the court described as "functional" and "categorical."
The functional reason is that class members cannot, as a practical
matter, anticipatorily raise in their removal proceedings
fear-based claims about removal to a country not identified in
those proceedings. See Aguilar, 510 F.3d at 11
(construing § 1252(b)(9) not to bar "claims that cannot
effectively be handled through the available administrative
process"); id. at 12 (expressing "hostility toward requiring
exhaustion when adequate relief could not feasibly be obtained
through the prescribed administrative proceedings"). The
categorical reason is that the Supreme Court has
interpreted § 1252(b)(9) to contain "targeted language" that does
not oust the district courts of jurisdiction unless the suit seeks
"review of an order of removal, the decision to seek removal, or
the process by which removability will be determined." Regents,
591 U.S. at 19 (citation modified); see also Jennings, 583 U.S. at
294 (plurality opinion), 355 (Breyer, J., dissenting).
While there is considerable force to the district
court's functional analysis,9 we think it sufficient to reject
reasons we have already explained, this case does not involve a
challenge to a final order of removal.
9 The district court set forth in depth its reasoning,
based on the summary-judgment record, that administrative
exhaustion is impractical for noncitizens raising fear-based
claims concerning removals to third countries not identified until
- 30 -DHS's § 1252(b)(9) argument on the purely legal, "categorical"
grounds that the court alternatively identified. DHS attempts to
distinguish this case from Regents and Jennings by saying that,
unlike those cases, this case can be characterized as one that
involves an "action" to remove class members. But DHS fails to
grapple with the fact that, like Regents and Jennings, this is not
a case that seeks review of an order of removal, the decision to
seek removal, or the process by which removability is determined.
Rather, this is a case about the procedures DHS must follow when,
after it decides to remove a person, it chooses to remove them to
a country not identified in the removal order. Thus, this case
challenges action that post-dates any of the three contexts
identified in Regents and Jennings as triggering § 1252(b)(9)'s
limitations. Regents, 591 U.S. at 19; Jennings, 583 U.S. at 294
(plurality opinion), 355 (Breyer, J., dissenting).
Accordingly, § 1252(b)(9) did not prohibit the district court from
addressing the class's claims.
C. The Merits
As explained above, the district court held the Guidance
unlawful for three reasons. First, it held that the Guidance is
unlawful because it authorizes DHS to conduct third-country
removals without first engaging in statutory sequencing: that is,
after the conclusion of their removal proceedings. See D.V.D. III, 821 F. Supp. 3d at 131-35.
- 31 -without first seeking to remove class members to the countries
they designate, see 8 U.S.C. § 1231(b)(2)(A)-(C), or, failing
that, to countries "of which [they are] subject[s], national[s],
or citizen[s]," id. § 1231(b)(2)(D). Second, it held that the
Guidance is unlawful for failing to provide eligible class members,
see supra note 3, with effective notice and a meaningful
opportunity to raise any fear-of-persecution claims they might
have about removal to a third country, as they are entitled to do
under § 1231(b)(3) and related regulations. Third, it held that
the Guidance is unlawful for failing to provide class members with
notice and a meaningful opportunity to raise any fear-of-torture
claims they might have about removal to a third country under the
Fifth Amendment's Due Process Clause. DHS contests each of these
rulings.
1. Sequencing
The complaint in this case did not contain allegations
that DHS unlawfully failed to engage in sequencing prior to
carrying out third-country removals. Rather, the issue appears to
have first arisen during the summary-judgment stage of the
proceedings. DHS presents several arguments about this procedural
irregularity, including an argument that none of the
representative plaintiffs possessed Article III standing to
litigate the issue. We agree with DHS that this claim must be
- 32 -dismissed, and the declarations based on this claim vacated,
because the representative plaintiffs lack Article III standing.
Each of the representative plaintiffs alleges or implies
that they have a final order of removal designating their country
of citizenship as the one to which they will be removed. Each
also alleges or implies that their country of citizenship is the
only country designated for removal in their final removal order.
Each further alleges or implies either that their country of
citizenship will not take them or that they have successfully
secured protection from removal to their home country based on a
fear-based claim. And none alleges or implies that, during their
removal proceedings, they designated a country other than their
country of citizenship, see § 1231(b)(2)(A),10 that DHS
10 In relevant part, § 1231(b)(2)(A)(i) states that a
noncitizen who has been ordered removed "may designate one country to which the alien wants to be removed." Section 1231(b)(2)(A)(ii) in turn provides that DHS "shall remove the alien to the country
the alien so designates," subject to limitations described
in § 1231(b)(2)(B) that are not germane.
- 33 -disregarded, see § 1231(b)(2)(C),11 in favor of their country of
citizenship, see § 1231(b)(2)(D).12
Taken together, these allegations fail to establish that
DHS has disregarded the statutory sequencing requirements
of § 1231(b)(2)(A)-(D) -- which, again, were the subjects of the
district court's declaratory judgments regarding sequencing -- in
seeking to remove the representative plaintiffs from the country.
The representative plaintiffs have therefore failed to plead facts
suggesting that they were injured by DHS's allegedly unlawful
sequencing practices. Accordingly, we dismiss the class's
sequencing claim for lack of Article III standing. See Spokeo,
Inc. v. Robins, 578 U.S. 330, 338 n.6 (2016) (observing that "named
plaintiffs who represent a class must allege and show that they
11 In relevant part, § 1231(b)(2)(C) authorizes DHS to
disregard a noncitizen's designation of a preferred country of
removal under § 1231(b)(2)(A)(i) if the noncitizen fails to
designate a country promptly; if the government of the selected
country does not inform DHS "finally, within 30 days after the
date [DHS] first inquires, whether the government will accept the alien into the country"; if the government of the selected country "is not willing to accept the alien into the country"; or if DHS
"decides that removing the alien to the country is prejudicial to the United States."
12 In relevant part, § 1231(b)(2)(D) states that "[i]f an
alien is not removed to a country designated under [§ 1231(b)(2)(A)(i)], [DHS] shall remove the alien to a country of which the alien is a subject, national, or citizen" unless the
country is not responsive to DHS's inquiry whether the country
will accept the alien, or is not willing to accept the alien.
- 34 -personally have been injured" to satisfy the demands of Article
III (citation modified)).
2. Fear of Persecution
The district court's fear-of-persecution ruling was
based on two subsidiary conclusions. First, the court construed
§ 1231(b) and related regulations, which are the provisions of law
that authorize the removal of class members with final removal
orders, to require DHS to provide eligible class members with
effective notice and a meaningful opportunity to raise any
fear-of-persecution claim before a third-country removal. Second,
the court deemed the Guidance unlawful because it authorizes
third-country removals without providing such notice and
opportunity.
The district court reached the first conclusion because,
as a statutory matter, DHS exercises the power to remove class
members under § 1231(b), including the power to conduct
third-country removals under § 1231(b)(2)(E),13 "[s]ubject to
13 Section 1231(b)(2)(E), titled "Additional removal
countries," is the INA's source of authority for the third-country removal of a noncitizen who is not removed to a country the
noncitizen designates under § 1231(b)(1)(A), or to a country of
which the noncitizen is a subject, national, or citizen
under § 1231(b)(2)(D). Section 1231(b)(2)(E)(i) to (vi) provide
a list of six additional countries with which the noncitizen has
lesser connections and to which the noncitizen may be
removed -- e.g., "the country from which the alien was admitted to the United States." § 1231(b)(2)(E)(i). The subsection concludes
with § 1231(b)(2)(E)(vii), a catchall provision authorizing a
third-country removal to "another country whose government will
- 35 -[§ 1231(b)(3)]." Id. § 1231(b)(1)-(2). Again, § 1231(b)(3)
categorically prohibits DHS from removing eligible class members
to a country (including a third country) if DHS decides that they
would face persecution there based on a protected characteristic.
The court also emphasized that § 1231(b)(3) contemplates that a
"trier of fact" would be the one to decide a fear-of-persecution
claim on an individualized basis following a formal process
involving the introduction of evidence and credibility
determinations. See § 1231(b)(3)(C); 8 C.F.R. §§ 208.16, 1208.16
(establishing standards and procedures for the adjudication of
claims for withholding of removal under § 1231(b)(3) and the
FARRA/CAT). Finally, the court invoked the assumption of
"congressional solicitude for fair procedure, absent explicit
statutory language to the contrary," Califano v. Yamasaki, 442
U.S. 682, 693 (1979), and the related constitutional-avoidance
canon, see id.; see also, e.g., Zadvydas v. Davis, 533 U.S. 678,
689 (2001) (observing that the Supreme Court has "read significant
limitations into other immigration statutes in order to avoid their
constitutional invalidation"), in support of reading a requirement
of effective notice and a meaningful opportunity to present a
fear-of-persecution claim into the applicable statutory and
accept the alien into that country" only if it is "impracticable, inadvisable, or impossible to remove the alien to" any of the
countries listed in § 1231(b)(2)(E)(i)-(vi).
- 36 -regulatory framework, see A.A.R.P. v. Trump, 605 U.S. 91, 94-95
(2025) (confirming that the Fifth Amendment guarantees noncitizens
due process of law in the context of removal proceedings).
The district court reached the second conclusion -- that
the Guidance is unlawful -- because, as we have explained, the
Guidance guarantees class members no notice at all of an impending
third-country removal when the country to which the noncitizen is
to be removed has provided credible (in the State Department's
judgment) diplomatic assurances that noncitizens removed there
from the United States will not be persecuted or tortured.14 And
as to countries that have not provided such diplomatic assurances,
the Guidance contemplates inadequate notice, generally only
twenty-four hours or less, of an impending third-country removal
prior to the effectuation of removal. Cf. A.A.R.P., 605 U.S. at
95 (stating that notice roughly twenty-four hours before removal
under the Alien Enemies Act, devoid of information about how to
14 Even setting aside issues of notice and a meaningful
opportunity to raise a fear-of-persecution claim, it is difficult to see how the Guidance conforms to the detailed statutory and
regulatory regime governing such a claim. For nothing in that
regime contemplates the substitution of blanket diplomatic
assurances for the detailed and individualized procedures
governing such a claim. In this respect, 8 C.F.R. §§ 208.18(c)
and 1208.18(c) do contemplate, in the FARRA/CAT context, that
individualized diplomatic assurances obtained by the Secretary of State can in some circumstances substitute for an administrative
order providing the noncitizen with FARRA/CAT protection.
- 37 -exercise due process rights to contest the removal, does not
satisfy due process).15
DHS presents three arguments that the district court
erred in construing applicable statutory and regulatory law to
require effective notice of an impending third-country removal and
a meaningful opportunity to bring a fear-of-persecution claim
regarding removal to that third country.16 First, DHS asserts that
15 We note that neither the public record nor the record in
this case discloses what countries, if any, have provided the State Department with the diplomatic assurances contemplated by the
Guidance and what countries, if any, have declined to do so. We
also note that, although it does not affect our analysis, we 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 § 1231(b)(3), see Paye v. Garland, 109 F.4th 1, 11-12 (1st Cir. 2024), and torturers within the meaning of the FARRA/CAT, see
Escobar v. Garland, 122 F.4th 465, 481 (1st Cir. 2024).
16 In passing, DHS also takes issue with the district
court's reliance on the statutory references to the "trier of fact" and "credibility determinations" in § 1231(b)(3)(C), arguing that the provision containing those references "was added in 2005" and is "inapposite because it obviously refers to proceedings under
the existing regulations . . . which even the district court
agrees do not speak to third country removals." And DHS further
contests the inference the court drew with respect to the
interrelationship between § 1231(b)(2)(E) and § 1231(b)(3), arguing that the provisions in § 1231(b) conditioning removal
authority on § 1231(b)(3) "mean[] nothing more and nothing less
than if an alien has been granted withholding of removal to a
particular country, the government may not, when applying the
sequencing provisions in [§] 1231(b)(2), remove an alien to that
country." But DHS does not elaborate either argument, both of
which are so underdeveloped that we find them difficult to
understand. We therefore regard them as waived. See, e.g., United States v. Zannino, 895 F.2d 1, 17 (1st Cir. 1990) ("[I]ssues
adverted to in a perfunctory manner, unaccompanied by some effort
- 38 -"the [district] court did not identify any text in
Section 1231(b)(2) or 1231(b)(3) creating such an entitlement."
But the statute need not state the particulars of these procedural
rights for their existence to be evident in the structure of
§ 1231(b) and in the specific guarantees provided by § 1231(b)(3).
Indeed, immigration statutes are often construed to mean more than
what they plainly say -- especially when the government's proposed
reading raises serious due process concerns and where there is no
clear basis for concluding that Congress intended that problematic
reading. See, e.g., Zadvydas, 533 U.S. at 689-99 (reading "an
implicit limitation" into a post-removal statute such that the
noncitizen could not be detained indefinitely but rather only for
the "period reasonably necessary" to accomplish the noncitizen's
removal).
Here, the district court conducted a conventional
analysis of § 1231(b)(2) and (c) that led it to adopt a sensible
interpretation of statutory meaning that avoids constitutional
problems. For, as the court concluded, an individual's right to
contest removal to a country based on a fear of persecution in
that country means little if one does not receive prior notice of
the intended removal destination and a meaningful opportunity to
at developed argumentation, are deemed waived.") In any event, we see no basis for untethering the provisions authorizing removal
in § 1231(b) from the explicit and implicit requirements and
limitations of § 1231(b)(3).
- 39 -contest that destination. Section 1231(b)(3) applies broadly to
prevent persecution, while DHS's proposed interpretation would
deny access to that protection to a substantial swath of
noncitizens who are sent to third countries with no notice of their
destination. We decline to adopt such an interpretation.
Second, DHS argues that § 1231(h) prohibited the
district court from recognizing the requirements and limitations
it construed § 1231(b)(2) and (3) to contain. Section 1231(h)
states that "[n]othing in [§ 1231] shall be construed to create
any substantive or procedural right or benefit that is legally
enforceable by any party against the United States or its agencies
or officers or any other person." In making this argument, DHS
acknowledges that § 1231(h) cannot be read to mean that judicial
review is unavailable to enforce any right created by § 1231(b)(2)
and (3). DHS recognizes that § 1252(a)(5) and (b)(4), discussed
above, "authorize[] judicial review of certain withholding of
removal determinations in a petition for review, and thus must
allow for some determination of rights under Section 1231(b)(3) in
the Court of Appeals." But, DHS continues, "there is no corollary
exception to Section 1231(h) for district court review and
determination of such rights." Thus, DHS concludes, "[s]ections
1231(h), 1252(a)(5), and 1252(b)(4) are . . . best harmonized to
mean that any procedural or substantive rights under the
withholding statute may be determined only in a petition for review
- 40 -. . . and are not legally enforceable in any other type of suit
(like this one)."
DHS fails to explain why § 1231(h) should be read to
permit judicial review under § 1252(a)(5) and (b)(4), but preclude
judicial review under non-INA statutes that authorize claims based
on a failure to comply with the requirements and limitations of
§ 1231(b)(2) and (c), such as the APA and the all-purpose habeas
statute, 28 U.S.C. § 2241. In any event, we need not explore this
mystery, or the meaning of § 1231(h), any further. The Supreme
Court has made clear that § 1231(h) does not bar such claims under
such statutes. Zadvydas, 533 U.S. at 687-88 (holding
that § 1231(h) "simply forbids courts to construe [§ 1231] 'to
create any . . . procedural right or benefit that is legally
enforceable'" and "does not deprive an alien of the right to rely
on 28 U.S.C. § 2241 to challenge detention that is [unauthorized
by § 1231(a), which governs the detention of aliens who have been
ordered removed]"); see generally Jama v. Immigr. & Customs Enf't,
543 U.S. 335 (2005) (reviewing on the merits a habeas petition
under § 2241 challenging the lawfulness under § 1231(b)(2)(E)(iv)
of removing a noncitizen to his country of birth when that country
did not accept him in advance); see also Pavlovich v. Gonzales,
476 F.3d 613, 615 n.1 (8th Cir. 2007) (rejecting as "flatly
contrary to Jama" an argument that § 1231(h) prohibits noncitizens
from claiming error in a removal-country designation
- 41 -under § 1231(b)(2)); Texas v. United States, 515 F. Supp. 3d 627,
634 (S.D. Tex. 2021) (holding that § 1231(h) does not preclude an
APA claim based on an alleged violation of § 1231(a)(1)(A)).
Third, and finally, DHS argues that, because withholding
of removal to a country based on a fear-of-persecution claim is
dependent on the government deciding that the noncitizen's life or
freedom would be threatened there, see § 1231(b)(3)(A), the
government "has discretion to fashion procedures to make that
decision." And, the argument continues, "while the government has
provided a robust process in connection with issuance of removal
orders, . . . it has opted for a more streamlined process for
covered third-country removals" -- i.e., removals pursuant to the
procedures contemplated by the Guidance.
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 Guidance authorizes, i.e.,
removals without notice and a meaningful opportunity to assert
fear-of-persecution claims. 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.
- 42 -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.
For the reasons stated, the Guidance 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 Guidance is therefore unlawful under the
APA. See 5 U.S.C. § 706(2)(A), (C).
3. Fear of Torture
After concluding that the statutory and regulatory
provisions governing fear-of-persecution claims should be read to
require effective notice and a meaningful opportunity to present
such claims before a third-country removal, and that third-country
removals under the Guidance are unlawful because the Guidance fails
to provide for either, the district court turned to whether these
procedures also are required under the FARRA/CAT.17 Here again,
17 Recall that some class members cannot assert
fear-of-persecution claims under § 1231(b)(3). See supra note 3.
These class members are therefore ineligible for declaratory or
APA-based relief based on the incompatibility between the Guidance and § 1231(b)(3) and related regulatory provisions. These class
members are, however, eligible to assert fear-of-torture claims
under the FARRA/CAT. See id. Accordingly, we separately address
- 43 -the court concluded that they are required. But the court did not
arrive at this conclusion based on an interpretation of the
FARRA/CAT and related regulations. Rather, the court bypassed the
statutory/regulatory question to resolve the issue based on the
Fifth Amendment's Due Process Clause.18
By order dated March 16, 2026, we granted DHS's emergency
motion for a stay pending appeal and directed the parties to
address in their briefing, inter alia, the following question:
"Whether the appeal with respect to class members ineligible for
statutory withholding of removal under § 1231(b)(3) can be
resolved without regard to any question of procedural due process
under the Fifth Amendment to the Constitution." DHS did not
address the issue in its opening brief and devoted a single
paragraph to the issue in its reply brief, which inaccurately
described the district court as having "properly rejected" the
argument that the FARRA/CAT, its implementing regulations, and
international law require effective notice and a meaningful
whether APA-based relief is warranted due to the Guidance’s violation of the requirements of the FARRA/CAT.
18 The district court declined to address the question of
statutory and regulatory meaning because, "[a]lthough an argument could be made that the same constitutional-avoidance logic
[grounding the court's reading of § 1231(b)(3) and related
regulations] should apply to [the right to seek relief under the
FARRA/CAT] 'absent explicit . . . language to the contrary,'
Califano, 442 U.S. at 693, there is less direct, affirmative
textual support for it." D.V.D. III, 821 F. Supp. 3d at 148.
- 44 -opportunity to present a fear-of-torture claim before a
third-country removal.19
In any event, we conclude that, as with § 1231(b)(3),
the FARRA/CAT and its implementing regulations require 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 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 and an assumption of "congressional solicitude for fair
procedure, absent explicit statutory language to the contrary."
Califano, 442 U.S. at 693; see Zadvydas, 533 U.S. at 689. Where,
as here, there is no explicit language in the FARRA/CAT or related
regulations that precludes our doing so, see Califano, 442 U.S. at
693, we think it preferable to avoid a serious constitutional
problem and instead to follow the established practice of
"read[ing] significant limitations into . . . immigration
statutes in order to avoid their constitutional invalidation."
Zadvydas, 533 U.S. at 689, 696-99 (analyzing whether there was "any
clear indication of congressional intent" to adopt a
19 The district court did not "reject" the argument. It bypassed it. See supra note 18 and accompanying text.
- 45 -constitutionally problematic interpretation of a statute and
concluding there was not).
As with § 1231(b)(3), such a construction of the
FARRA/CAT and its related regulations coheres with the
FARRA § 2242(d)'s textual contemplation of an administrative
hearing and judicial review of "claims raised under [the
FARRA/CAT]" and "determination[s] made with respect to the
application of [the FARRA/CAT's policy of not removing any person
to a country in which there are substantial grounds for believing
the person would be in danger of being subjected to torture]."
See FARRA § 2242(d); see also 8 U.S.C. § 1252(a)(4) and supra note
6. Also, such a construction avoids drawing a different inference
in the FARRA/CAT context than in the § 1231(b)(3) context about
whether the provisions governing the adjudication of fear-based
claims (both persecution and torture) in 8 C.F.R. §§ 208.16 and
1208.16 imply that noncitizens must be given effective notice and
a meaningful opportunity to be heard on any such claim before DHS
may remove them to a third country. Cf. Clark v. Martinez, 543
U.S. 371, 380 (2005) (stating that textual provisions must be given
consistent readings from context to context). Finally, and most
fundamentally, just as we observed with respect to § 1231(b)(3),
an individual's right to avoid removal to a country where one is
likely to be tortured means little if one is not given prior notice
of an intended third-country removal to that country and a
- 46 -meaningful opportunity to assert their fear of torture if removed
to that location. Our reading of the statute and regulations thus
avoids a serious constitutional problem.
In a single paragraph in its reply brief, DHS contests
our reading of the FARRA/CAT and related regulations with three
undeveloped assertions. First, DHS states that § 2242(d)'s use of
the term "determination" is an insufficient textual basis for
reading the FARRA/CAT and related regulations to require the
provision of effective individualized notice and a meaningful
opportunity to assert one's rights. But as explained above, our
contrary conclusion is based on far more than extrapolation from
the word "determination."
Second, DHS argues that the FARRA/CAT's implementing
regulations "plainly refer to applications for protection
submitted during removal proceedings" and "clarify that nothing in
the [regulations] should be construed as preventing removal to a
third country." These assertions miss identify the question before
us. The issue we confront is whether noncitizens are entitled to
notice and a meaningful opportunity to raise a fear-of-torture
claim in connection with any such third-country removal. We see
no reason to read the regulations to treat noncitizens with final
removal orders less favorably than noncitizens still in removal
proceedings with respect to the ability to assert such a claim.
- 47 -Third, DHS asserts that there is support for its position
in 8 C.F.R. §§ 208.17(b)(2) and 1208.17(b)(2), which require
immigration judges to inform noncitizens who have been granted
deferral of removal to a country in which they are likely to be
tortured that they "may be removed at any time to another country
where [they are] not likely to be tortured." DHS contends that
these regulatory provisions show that the provision of notice and
a meaningful opportunity to raise a fear-of-torture claim is
unnecessary as to that third country, arguing that "[t]here would
be no reason for the regulations to note that protection under CAT
is country specific, such that an alien can be removed to [a] third
country, if the government had to start from the beginning each
time it sought to remove an alien to a third country."
We see no redundancy. The class does not claim
entitlement to restart the removal process from the beginning when
DHS seeks to execute a third-country removal. Rather, it seeks
only prior notice of the intended removal destination and a
meaningful opportunity to raise any fear-based claims they might
have regarding it. The regulatory provisions serve an antecedent
purpose. They place affected noncitizens on general notice of the
possibility of a third-country removal.
For the reasons stated, the Guidance conflicts with the
statutory and regulatory provisions governing fear-of-torture
claims insofar as it authorizes third-country removals without
- 48 -effective notice and a meaningful opportunity to assert such claims
in connection with such removals. The Guidance is therefore
unlawful under the APA. See 5 U.S.C. § 706(2)(A), (C).20
D. Scope of the Remedy and 8 U.S.C. § 1252(f)(1)
Finally, DHS argues that the declaratory and APA-based
vacatur relief ordered by the district court violates
8 U.S.C. § 1252(f)(1). Section 1252(f)(1), captioned "Limit on
injunctive relief," states in relevant part:
Regardless of the nature of the action or
claim or of the identity of the party or
parties bringing the action, no court (other
than the Supreme Court) shall have
jurisdiction or authority to enjoin or
restrain the operation of the provisions
[authorizing third-country removals] . . .
other than with respect to the application of
such provisions to an individual alien against
whom proceedings under such part have been
initiated.
DHS contends that the practical effect of the court's declaratory
judgments and vacatur of the Guidance is "to enjoin or restrain
the operation" of § 1231(b)(2)(E) in violation of the statute.
20 Because we affirm the district court's conclusion that
the Guidance is unlawful under the APA on the ground that it
violates the class's statutory and regulatory rights, and because we do not reach the question whether the Guidance also violates
the Fifth Amendment's Due Process Clause, we do not address DHS's argument that the Guidance satisfies due process requirements
because blanket diplomatic assurances can substitute for
individualized process as a constitutional matter. Nor do we
address DHS's argument that class members who entered the country clandestinely should be treated as not having been admitted
pursuant to the so-called "entry fiction."
- 49 -Insofar as DHS challenges the district court's
declaratory judgments, circuit precedent directly forecloses its
argument. In Brito v. Garland, 22 F.4th 240, 250-52 (1st Cir.
2021), we held that § 1252(f)(1) does not prevent a district court
from providing declaratory relief to a class of noncitizens. We
provided four principal reasons for our conclusion.
Our analysis started with the statute's caption and
text, both of which reference only injunctions and neither of which
suggests a ban on declaratory judgments. See id. at 251; see also
AADC, 525 U.S. at 481 (observing that § 1252(f)(1) is "nothing
more or less than a limit on injunctive relief"). We next
emphasized that a declaratory judgment is a "milder remedy" than
an injunction; it does not coerce a party, prohibit any future
action, or "set the stage for a finding of contempt" -- a
"distinction" we described as being "of special note in cases in
which the government is a party." Brito, 22 F.4th at 251.
Third, we observed that "Congress knows how to prohibit
declaratory relief when it so chooses," noting that "the preceding
subpart in section 1252 prohibits courts from granting
'declaratory, injunctive, or other equitable relief in any action
pertaining to an order to exclude an alien in accordance with
[§] 1225(b)(1).'" Id. (quoting § 1252(e)(1)(A)); see id. ("[W]hen
Congress includes particular language in one section of a statute
but omits it in another section of the same Act, it is generally
- 50 -presumed that Congress acts intentionally and purposely in the
disparate inclusion or exclusion" (citation modified) (quoting
Barnhart v. Sigmon Coal Co., 534 U.S. 438, 452 (2002))).
Finally, we distinguished a Supreme Court case on which
DHS heavily relies, California v. Grace Brethren Church, 457 U.S.
393, 407-09 (1982), where the Supreme Court held that declaratory
relief is unavailable under a statute that only expressly prohibits
injunctive relief. We noted that Grace Brethren Church had limited
relevance because it involved federalism concerns that are not
present in the immigration-law context. See Brito, 22 F.4th at
251-52 (citing, inter alia, Steffel v. Thompson, 415 U.S. 452, 472
(1974) (stating that "[t]he only occasions where this Court has
. . . found that a preclusion of injunctive relief inevitably led
to a denial of declaratory relief have been cases in which
principles of federalism militated altogether against federal
intervention in a class of adjudications")).
We recognize that, after Brito, the Supreme Court
decided Garland v. Aleman Gonzalez, 596 U.S. 543 (2022). DHS reads
Aleman Gonzalez to have accorded such a broad construction of the
statutory term "restrain" such that declaratory judgments (and
vacaturs) of the sort at issue here fall within the sweep
of § 1252(f)(1). Thus, DHS argues, we are not bound by Brito.
See Williams v. Ashland Eng'g Co., 45 F.3d 588, 592 (1st Cir. 1995)
(prior panel holding does not bind a subsequent panel when
- 51 -"authority that postdates the original decision, although not
directly controlling, nevertheless offers a sound reason for
believing that the former panel, in light of fresh developments,
would change its collective mind").
Aleman Gonzalez does not so clearly reject Brito's
reasoning that we may disregard its holding. In fact, Aleman
Gonzalez expressly reserves the question whether § 1252(f)(1)
prohibits any form of relief that is similar to an injunction,
including class-wide declaratory relief. See 596 U.S. at 551 n.2.
Under the circumstances, we must follow Brito. See, e.g., United
States v. Perez, 89 F.4th 247, 250 (1st Cir. 2023) (emphasizing
that the exception to the law-of-the-circuit doctrine described
above in the Williams parenthetical is "hen's-teeth-rare" and
"applies only when the new authority provides a clear and
convincing basis to conclude that the prior panel would have
changed its mind" (citation modified)).
Insofar as DHS challenges the district court's vacatur
order based on Aleman Gonzalez, we reach the same conclusion.
Although Brito does not directly control, as it does in the
declaratory-judgment context, we could not accept DHS's argument
without ignoring the substance of Brito's analysis. First, as is
the case with declaratory relief, neither the caption
of § 1252(f)(1) nor the statutory text mentions vacatur, which the
APA makes mandatory once a court finds agency action to be
- 52 -unlawful. See 5 U.S.C. § 706(2) ("The reviewing court
shall . . . hold unlawful and set aside [such] agency action.");
see also Epic Sys. Corp. v. Lewis, 584 U.S. 497, 510 (2018)
(observing that there is a strong presumption against repeals by
implication such that "[a] party seeking to suggest that two
statutes cannot be harmonized, and that one displaces the other,
bears the heavy burden of showing 'a clearly expressed
congressional intention' that such a result should follow"
(citation modified)); Kucana v. Holder, 558 U.S. 233, 251 (2010)
(noting a presumption in favor of judicial review of executive
action, particularly in the immigration-law context).
Second, as is the case with declaratory relief, vacatur
is a milder remedy than an injunction. Monsanto Co. v. Geertson
Seed Farms, 561 U.S. 139, 165-66 (2010) (describing an injunction
as a "drastic and extraordinary remedy" and vacatur as "a less
drastic remedy"); see also Texas v. United States, 40 F.4th 205,
220 (5th Cir. 2022) (noting that "a vacatur does nothing but
re-establish the status quo absent the unlawful agency action" and
"neither compels nor restrains further agency decision-making").
And third, as we have just said in addressing whether § 1252(f)(1)
precludes declaratory relief, Congress knows how to be specific
when it wants to bar remedies beyond injunctive relief.
See § 1252(e)(1)(A).
- 53 -Because faithful application of the reasoning in Brito
requires that we do so, we reject DHS's argument that the district
court's vacatur of the Guidance under the APA is barred
by § 1252(f)(1). We note that this is the uniform position of
courts that have considered the question after Aleman Gonzalez.
See Refugee & Immigrant Ctr. for Educ. & Legal Servs. v. Mullin,
174 F.4th 81, 119-20 (D.C. Cir. 2026); Immigrant Defs. L. Ctr. v.
Noem, 145 F.4th 972, 989-90 (9th Cir. 2025); Texas, 40 F.4th at
220. We also note that, in Trump v. CASA, Inc., 606 U.S. 831
(2025), where the Supreme Court held that district courts may not
issue nationwide injunctions, the Court explicitly stated that its
opinion does not "resolve[] the distinct question whether the [APA]
authorizes federal courts to vacate federal agency action." Id. at
847 n.10.
III.
For the reasons stated, we vacate on standing grounds
the two declarations pertaining to DHS's statutory obligation to
seek to remove class members to countries they have designated, or
of which they are subjects, nationals, or citizens, prior to
removing them to third countries. We otherwise affirm the final
judgment.
So ordered.21
21 In the final section of its reply brief, DHS argues that
the district court's final judgment does not require the government
- 54 -to offer noncitizens who raise fear-based claims regarding a
third-country removal an evidentiary hearing prior to removal.
This issue is neither ripe nor fully joined. Any lingering questions about the meaning of the final judgment should be raised with the district court in the first instance.
- 55 -