First Circuit Strikes Down Trump’s Third-Country Deportation Policy
Updated September 28, 2026: On Thursday, the Trump Administration asked the Supreme Court for an emergency stay, so it could continue to deport immigrants to third countries. We will keep you updated on the Court’s response.
Published on: September 23, 2026
Last Friday, a unanimous panel of the U.S. Court of Appeals for the First Circuit issued a decision upholding a lower court’s decision striking down the Trump Administration’s “third country removal” policy.
The DHS policy in question had allowed immigrants with final removal orders to be sent to countries with which they have no relationship and which were not designated in their removal orders.
According to The Deportation Project, an investigation conducted by 72 journalists across 24 media organizations, the Trump Administration has deported more than 25,000 people to third countries since the beginning of his second term.
How the Third-Country Deportation Policy Worked
The lower court decision had struck down the policy on three grounds:
- The policy did not seek first to remove class members to a country they had designated or with which they had a relationship;
- The policy did not provide class members with notice that they were to be removed to a different third country; and
- The policy did not allow class members an opportunity to challenge their removal to a third country on the basis that they feared they would be persecuted or tortured there.
Why the First Circuit Found the Third-Country Removal Policy Unlawful
While the appellate court found that the first ground did not apply to any of the named plaintiffs in the case, it upheld the district court’s finding that the policy was unlawful based on the other two grounds.
The opinion, authored by Biden appointee Seth R. Aframe, held that the relevant immigration statutes and the Administrative Procedure Act require notice of the government’s intent to remove an immigrant to a third country and a “meaningful opportunity” for the immigrant to challenge removal to that country based on a fear they would be persecuted or tortured there.
How the Convention Against Torture Protects People Facing Third-Country Removal
In addition, for those immigrants who lack a right under the relevant immigration statute to bring a fear-of-persecution claim, the First Circuit agreed with the district court that such plaintiffs still have the right to bring a fear-of-torture claim. While the district court based its finding on this score on the Fifth Amendment’s due process protections, the appellate court adhered to the legal principle of avoiding rulings on constitutional grounds.
The panel instead found that the Foreign Affairs Reform and Restructuring Act of 1998 (FARRA), which implemented Article 3 of the international Convention Against Torture (CAT), provides such immigrants with that right.
The panel noted, however, that the district court’s constitutional finding “only bolsters [its] conclusion” that FARRA requires the basic aspects of procedural due process: effective notice of an intended removal destination and a meaningful opportunity for any fear-based claims to be heard.
What the First Circuit Decision Means for Immigrants Facing Third-Country Removal
This decision strengthens the position of advocates who have been arguing that our clients must be provided with the basic elements of due process before they can legally be removed to a third country. The government, however, is certain to seek a stay of the order and to appeal, and has indicated its intent to continue the policy until a vacatur is officially put into effect.
On Friday, the General Counsel of the Department of Homeland Security posted on X: “The third country deportation policy continues, as the First Circuit’s ruling is not currently in effect.”
Could the Supreme Court Decide the Future of Third-Country Deportations?
As with many Trump policies that have been struck down by federal courts, the U.S. Supreme Court will ultimately have the last word on the legality of third country deportations.
If you or someone you know is facing removal to a third country and wishes to seek protection, please contact us and set up a consultation.