The U.S. Supreme Court issued a stay order on September 29, 2026, allowing the Department of Homeland Security (DHS) to proceed with a policy to deport noncitizens to third countries while legal challenges continue. The case, *Department of Homeland Security v. D.V.D.*, centers on whether the government must provide noncitizens with notice and an opportunity to be heard before removing them to a third country where they may face persecution. The Court also granted certiorari to consider the merits of the case.
The dispute follows a February 2025 DHS policy that mandates the immediate removal of certain noncitizens to third countries. Under this initiative, individuals are not given a hearing to argue a fear of torture or mistreatment if DHS receives "credible," non-individualized diplomatic assurances from the destination country. For removals to other countries, detainees are granted 24 hours to demonstrate that persecution is "more likely than not," a threshold that, if met, refers the case to an immigration judge.
A class of plaintiffs challenged the policy in federal court. D.V.D., a Cuban national with mental illness, and others cited fears of imprisonment or abuse in potential third-country destinations. The U.S. District Court for the District of Massachusetts and the U.S. Court of Appeals for the 1st Circuit previously ruled that federal law is best read as implicitly requiring notice and a meaningful opportunity to demonstrate fear of persecution, noting that failing to do so could risk violating the Fifth Amendment.
For those affected, the policy removes the requirement for the government to provide advance notice of which specific third country they will be sent to. Critics of the policy, including the UN Committee Against Torture, have stated that diplomatic assurances are insufficient to justify returning individuals to states where clear evidence of potential mistreatment exists. The outcome of the merits phase will clarify how U.S. statutes like the Foreign Affairs Reform and Restructuring Act (FARRA) interact with international non-refoulement obligations, which prohibit returning individuals to territories where their lives or freedom are threatened.
The Supreme Court is expected to hear arguments on the merits during the 2026-27 term. Until then, the stay remains in effect, permitting DHS to enforce the third-country removal policy. The eventual decision will set a precedent for whether procedural protections like notice and hearings are legally mandated for noncitizens facing removal to third-party nations under federal immigration statutes.