Appeals Court Keeps Block on Third-Country Deportations Without Fair Process
A three-judge panel of the 1st U.S. Circuit Court of Appeals in Boston ruled on September 19, 2026, that the Department of Homeland Security's third-country removal policy is largely unlawful. The decision, docketed as No. 26-1212P, upheld much of a February 2026 ruling. It concerns sending migrants to countries where they hold no citizenship or prior ties. Al Jazeera
U.S. Circuit Judge Seth Aframe wrote the opinion for the panel. He said migrants must have a "meaningful" chance to raise safety concerns before removal to a third country. The court found the DHS policy did not meet that standard. Adopted in March 2025, it allowed removal on minimal notice when officials had diplomatic assurances, or formal promises, against persecution.
The panel narrowed the lower-court decision on one point. It overturned on procedural grounds the part about whether officials must first try to deport migrants to countries where they have ties. That issue was not properly before the court.
The policy document at issue is dated March 30, 2025. DHS had stated that migrants facing third-country removal must first get notice of the planned removal and then have a chance to affirmatively express fear. SCOTUSblog The First Circuit found that setup, as implemented, did not give enough process for raising claims of persecution or torture in the receiving country. Due process here means the basic right to notice and a chance to be heard.
The ruling follows a long court sequence. The Supreme Court paused a district court order that had blocked deportations to third-party countries. In 2025, it cleared the way for eight men, including nationals of Cuba, Myanmar and Vietnam, to be deported to South Sudan. In December 2025, a federal judge signaled openness to again ruling that the government cannot swiftly deport migrants to third countries. Reuters In February 2026, a U.S. judge rejected the policy allowing swift deportations to alternate countries, ruling that it violates migrants' due process rights. Reuters
In March 2026, a federal appeals court lifted the order that had invalidated the policy. That allowed the government to continue deporting migrants to countries with which they had no ties while the legal challenge unfolded. Reuters
The United States has struck agreements allowing it to send more than 25,000 migrants to at least 29 third countries, most often Mexico, according to Third Country Deportation Watch, a tracker run by Refugees International and Human Rights First.
The broader context here is a collision between two systems. Third-country removal depends on receiving-state consent, which is diplomatic. Protection against refoulement, the rule against returning people to face persecution or torture, depends on individual screening. The First Circuit has now said assurances alone cannot substitute for a hearing opportunity.
Looking at what this means for operators and litigators, the immediate limit is procedural, not a full ban. The court did not bar third-country removals outright. It barred removals without meaningful notice and a chance to assert fear. Compliance would require longer timelines, written notice of destination, and access to fear interviews before transfer. For a system built for speed, that changes throughput.
What comes next will turn on further review. The government can seek en banc reconsideration, or review by all First Circuit judges, or return to the Supreme Court, which earlier let transfers proceed during litigation. The procedural reversal on the ties-first question also leaves an opening. It preserves for another case whether DHS must exhaust countries of nationality or prior residence before naming a third country. That issue will shape future removal orders and bilateral arrangements.
