Six months ago, we checked in on President Donald Trump's fight over third-country deportations after the First U.S. Circuit Court of Appeals gave his administration breathing room while the case continued.
Trump won that round.
Friday, the judges finally ruled on the substance, and the answer is more complicated.
Related: Trump Scores Court Win as Biden-Appointed Judge’s Deportation Block Stalls
The First Circuit ruled that the government may continue removing illegal aliens to third countries, meaning countries other than their own, but DHS can't simply put someone on a plane without meaningful notice and an opportunity to raise a fear of persecution or torture.
From Bloomberg Law:
DHS issued the guidance permitting the removals in early 2025 as part of a broader immigration enforcement push and arranged deals with third countries to accept deportees who aren’t their citizens.
“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,” Judge Seth Aframe wrote for the unanimous panel.
The dispute matters because third-party removals have become an important tool for Trump's immigration enforcement program. Some countries refuse to take their own nationals back. In other cases, the administration has reached agreements allowing migrants to be sent elsewhere.
More than 25,000 people have been sent to at least 29 third countries under the policy.
The legal problem begins when the destination was never part of the migrant's original removal proceeding.
Federal law prohibits sending someone to a country where he is likely to be tortured. Existing regulations also provide procedures for people raising fear-based claims. The First Circuit concluded that DHS's streamlined policy didn't provide enough opportunity to use those protections.
The administration had sometimes relied on diplomatic assurances from receiving governments or notice periods measured in hours. The appeals court wasn't convinced that approach satisfied the existing legal framework.
Its opinion made an important distinction. The judges didn't say Congress could never create a faster third-country removal process. They said the process DHS created must comply with the statutes and regulations already on the books.
From Bloomberg Law:
“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 court said. “The question is whether that process is consistent with the applicable statutes and regulations that presently govern fear-of-persecution claims.”
In its opinion Friday, the appellate panel vacated the district court’s mandate for DHS to first seek to remove class members countries they’ve designated or where they are nationals or citizens. It ruled that plaintiffs representing the class can’t litigate claims that DHS unlawfully applied statutes out of order, which provided the basis for that requirement.
Trump did win part of the appeal.
U.S. District Judge Brian Murphy had required DHS to first try removing people to countries designated in their original proceedings, or countries where they were citizens or nationals, before using another destination. The First Circuit threw out that part of Murphy's judgment because the plaintiffs lacked standing to pursue it.
So this isn't a ruling that third-country deportations themselves are illegal.
It's a ruling about how a government gets someone onto that airplane.
Trump's basic problem remains one every administration eventually confronts. A final removal order does little good if the home country won't accept the person. Third-country agreements can solve that problem.
But the destination matters.
If America plans to send someone to a country he never expected to enter, and he claims he faces torture there, existing law gives him a chance to make that case before departure.
The administration can appeal, and given this litigation's history, another trip to the Supreme Court would surprise nobody.
For now, Trump still has third-country deportations.
The First Circuit just told DHS it needs more than a destination and an available seat.