The United States Court of Appeals for the First Circuit has drawn a constitutional line that the Trump administration’s immigration apparatus cannot cross: the government cannot deport migrants to third countries without giving them meaningful notice and a genuine opportunity to contest the dangers awaiting them there. In a decision that reverberates far beyond the Boston courthouse where it was issued, a three-judge panel affirmed that due process is not a procedural luxury but a substantive right that survives even in the expedited world of immigration enforcement.
What Happened
On September 18, 2026, the First Circuit largely upheld U.S. District Judge Brian Murphy’s preliminary injunction blocking the Department of Homeland Security’s “third-country” deportation policy. Enacted in 2025, the policy granted immigration officials authority to remove migrants to nations other than their own — in documented cases, sending Latin American nationals to sub-Saharan African countries — based solely on blanket diplomatic assurances from the receiving state that deportees would not face persecution or torture. When such assurances were absent, the policy required only minimal notice.
The appellate panel, in language that underscored the gravity of the constitutional violation, wrote: “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 contest that destination.” The National Immigration Litigation Alliance, which represented the plaintiff class, noted that for over a year, class members had been “deported to countries they had never been told they could be removed to, with little or no notice and without a meaningful opportunity to explain the dangers awaiting them there.”
Why It Matters
This ruling strikes at the operational core of the Trump administration’s deportation machinery. Since January 2025, the administration has pursued an aggressive expansion of removal authorities, leveraging Section 235(b)(2)(C) of the Immigration and Nationality Act — the “third-country” provision — to bypass traditional country-of-origin removal procedures. The First Circuit’s decision establishes that statutory authority does not eliminate constitutional due process requirements, particularly the protections embedded in the Convention Against Torture (CAT) and its implementing regulations at 8 C.F.R. § 208.16-18.
The practical implications are immediate and substantial. Immigration and Customs Enforcement (ICE) must now provide individualized notice of the specific third-country destination and a meaningful hearing before an immigration judge where the deportee can present evidence of persecution or torture risk in that specific country. This transforms what had been a summary administrative process into an adversarial proceeding, potentially adding months to removal timelines and requiring ICE to maintain detailed country-conditions documentation for each potential receiving nation.
Beyond the immediate operational impact, the decision creates a circuit split waiting to happen. The Fifth, Ninth, and Eleventh Circuits — all with heavy immigration dockets — have not yet ruled on the specific due process contours of third-country removals under the current policy. If other circuits follow the First Circuit’s reasoning, the administration faces a nationwide patchwork of compliance requirements that could effectively paralyze the third-country removal pipeline.
Historical Context
The constitutional tension at play here is not new. In INS v. St. Cyr (2001), the Supreme Court held that habeas corpus review remains available for noncitizens facing removal, rejecting the argument that Congress could strip courts of jurisdiction entirely. In Zadvydas v. Davis (2001), the Court ruled that indefinite detention of removable aliens violates due process. The First Circuit’s decision extends this lineage: procedural protections cannot be contracted by executive policy, no matter how expansive the statutory grant of removal authority.
There is also a direct parallel to the Obama administration’s 2014 “Priority Enforcement Program” and the subsequent litigation over whether prosecutorial discretion memos created enforceable rights. Then, as now, the courts served as the institutional brake on executive immigration overreach. But the current policy goes further — it doesn’t just prioritize enforcement; it affirmatively redirects removal to countries with which the deportee has no connection, based on diplomatic assurances that the State Department itself has historically treated with skepticism in human rights reports.
Judge Murphy’s repeated rebukes of the administration — this marks at least his third significant ruling against the third-country policy — reflect a district court willing to engage in the kind of granular factual oversight that appellate courts often defer to. His findings that deportees were sent to countries “they had never been told they could be removed to” with “little or no notice” created a factual record that the First Circuit found difficult to disturb.
What to Watch
The administration has three immediate paths forward, each with distinct institutional implications. First, it could seek en banc review by the full First Circuit — a long shot given the panel’s unanimous reasoning but a necessary procedural step before Supreme Court review. Second, it could attempt to comply by issuing new guidance that provides “meaningful notice” and “meaningful opportunity” while preserving the operational speed the policy was designed to achieve. This would likely trigger a new round of litigation over what those phrases mean in practice.
Third, and most consequentially, the Department of Justice could petition the Supreme Court for certiorari before judgment, arguing that the First Circuit has improperly expanded due process protections for noncitizens in expedited removal proceedings. With a 6-3 conservative majority that has shown skepticism toward judicial expansion of immigration protections — see Department of Homeland Security v. Thuraissigiam (2020), which limited habeas review for asylum seekers — the Court may be receptive to the argument that Congress’s plenary power over immigration permits the executive to define the procedures for third-country removal.
Meanwhile, watch for the ripple effect in other circuits. The Ninth Circuit, which covers the border states where most third-country removals originate, has a pending case — Doe v. Noem — challenging the same policy. If the Ninth Circuit reaches a different conclusion, the circuit split would virtually guarantee Supreme Court review.
Key Takeaway
The First Circuit’s decision represents the most significant judicial constraint on the Trump administration’s removal authority to date. It establishes that the government’s statutory power to designate third-country removal destinations does not carry with it the authority to suspend the due process protections that make the Convention Against Torture’s non-refoulement guarantee meaningful. In practical terms, this means every third-country removal now requires an individualized, adversarial proceeding — a requirement that transforms a tool designed for speed into a process that may be too cumbersome to use at scale. The ruling doesn’t end third-country removals, but it forces them into the light of judicial scrutiny, where the human rights consequences of each removal must be weighed before a neutral arbiter. That, more than any single injunction, is the structural change that will endure.
