A flight to three countries, carrying 70 people with criminal convictions, did not leave the ground. The Solicitor General put that cancellation at the center of a filing Thursday afternoon, using it as evidence that a court order had thrown the government's removal operations into disarray, and asked the Supreme Court to pause the order while the appeal runs.
The case is Department of Homeland Security v. D.V.D., No. 26A406, and the filing runs 42 pages. Solicitor General D. John Sauer asked for an immediate administrative stay, a short order that would let third-country removals resume while the Court decides what to do about the ruling underneath them.
Sauer wrote that the latest order from Judge Brian Murphy of the District of Massachusetts "rests on the same fundamentally flawed legal premises as the previous rulings." Reinstating it, he said, had created substantial logistical problems with ongoing removal operations and led to added expense, potential diplomatic issues, and the inability to remove dangerous criminals. Canceling the flight to three countries, he added, required a new round of diplomatic engagement with each of them.
Justice Ketanji Brown Jackson, who handles emergency applications from the First Circuit, has directed the immigrants in the case to respond by 4 p.m. Eastern on Monday, September 28. She has not acted on the request yet. She could rule on her own, or refer the matter to the full Court.
What the First Circuit decided, and when it started to count
The policy traces to an executive order on January 20, 2025, which instructed the Department of Homeland Security to take "all appropriate actions" to remove noncitizens who remained in the country despite having orders to deport them. Internal guidance that February and March built the machinery underneath it.
Four immigrants with removal orders went to federal court in Massachusetts that March. Murphy barred the government from deporting them, or anyone similarly situated, without first giving them and their lawyers written notice of the third country they might be sent to, and a meaningful opportunity to challenge that destination. He also required the department to ask whether a person's fear of torture was reasonable, rather than whether torture was more likely than not, and to give anyone who could not meet that bar at least 15 days to seek reopening of their immigration proceedings.
Murphy issued a final judgment in the immigrants' favor in February 2026 and struck down the policy. The First Circuit largely upheld him on Friday, September 18. Judge Seth Aframe wrote that a person's right to contest removal to a country based on a fear of persecution there "means little if one does not receive prior notice of the intended removal destination and a meaningful opportunity to contest that destination."
The ruling did not take effect immediately, and that is where the week turned. The First Circuit had entered an order on March 16, 2026 that put Murphy's judgment on hold during the appeal. The government's top immigration lawyer took the position that the ruling was not yet in force. The plaintiffs went back to the appeals court, which dissolved the stay on Wednesday night and made clear its decision governed. The administration filed with the Supreme Court the following afternoon.
The rule the courts keep striking down is about notice
The dispute is not about whether the government can remove someone with a final order against them. It is about what it must tell them first.
The administration's position, as described to the First Circuit, has three tiers. If the receiving country has given the State Department blanket assurances that the person will not be harmed, the government has said it needs no notice at all. If those assurances are absent, it has said six hours is enough, and that only the immigrant, not their lawyer, may express a credible fear about where they are going. Murphy's order answered each tier: written notice to the person and to counsel, a meaningful opportunity to contest the destination, a reasonable-fear standard instead of a more-likely-than-not standard, and 15 days to reopen proceedings when the fear claim fails.
Sauer's answer is that there is no realistic risk of persecution because the executive branch has already determined which countries are acceptable places of removal. The immigrants' lawyers read the same record and see the opposite problem. Trina Realmuto of the National Immigration Litigation Alliance said that the First Circuit had spoken clearly: the policy is unlawful, and class members have a right to meaningful notice of third countries and a meaningful opportunity to raise fear-based claims. Matt Adams of the Northwest Immigrant Rights Project, joint counsel for the plaintiffs, said the holding makes clear the program blatantly violates the law.
The structural point buried under the briefing is that the government's argument assumes the order names a country. A third-country designation is a separate decision about a separate place, made later, and that is the decision the First Circuit said requires its own notice. Sauer's filing treats the two as one proceeding. The panel treated them as two.
The documentation is where these cases have turned before. A federal judge in California barred warrantless immigration arrests across seven counties unless agents recorded individualized flight-risk findings, and that ruling rested on the same gap between what an agency concludes and what it can show.
The government's measure of harm is a flight, not a person
Sauer's irreparable-harm argument runs like this. The people in the class already have final removal orders, so they have had their opportunity to challenge their removals, and they cannot show the kind of harm that justifies keeping a policy frozen. The concrete costs he lists are operational: canceled flights, added expense, strained agreements with foreign governments.
The counterargument is that an administrative stay is not a ruling on anything. It is time. Granting one keeps the policy running for however many months the appeal takes, and the people moved during that window are moved under a rule that two courts have now found unlawful. That asymmetry is what the immigrants' response, due Monday, will press.
The record on the other side of the ledger is thin in the filing and thick everywhere else. ABC News interviewed Latin American men deported to the Central African Republic, which the State Department classifies as an extreme-risk destination because of armed conflict, violent crime and the threat of terrorism. The men said they learned where they were going several hours into the flight. Attorney General Todd Blanche announced the appeal Thursday, writing that the appeals court had blocked the government "in the dark of night" from using an entirely legal and invaluable tool. The department's general counsel had called the same policy an essential public safety tool the day before.
The justices have been here twice before
Sauer's first trip to the Court in this case came in May 2025, asking the justices to put Murphy's original order on hold while the appeal ran. On June 23, 2025, the Court granted that request over a dissent by Justice Sonia Sotomayor that Jackson and Justice Elena Kagan joined.
He returned the next day, asking the Court to make clear that the administration could move forward with a group of men being held at a U.S. military base in Djibouti, after Murphy found that efforts to send them to South Sudan violated his order. On July 3, 2025, the Court issued a brief opinion indicating that its earlier order had paused Murphy's order in full. Sotomayor dissented again, joined by Jackson.
The group was expelled to South Sudan the next day. The American Prospect has reported that five of the men were still imprisoned in a government compound fourteen months later. Dana Camilleri, an immigration attorney whose firm represents people subject to the policy, told the outlet that almost everyone removed while the lower court's decision was stayed ended up in dire straits or was refouled.
That history is the backdrop to Monday. The Court has shown it is willing to let the policy operate during an appeal, and that a later ruling on the merits does not undo what happened meanwhile. The immigration docket has produced that pattern more than once. The question Jackson faces is whether to repeat it a third time.
The receiving end is a list of countries, not a plan
The scale is not in dispute. About 25,000 people have been deported to third countries since the crackdown began, according to Human Rights First. Sauer told the Court the vast majority went to Mexico, with thousands of others sent to 35 countries under a series of agreements; ABC News reports formal deals with nearly three dozen.
The destinations include the Central African Republic, Eswatini, Equatorial Guinea, Cameroon, the Democratic Republic of the Congo and South Sudan, several of which carry State Department travel warnings. The Associated Press has reported that two men deported to Equatorial Guinea said they were beaten and held at gunpoint in a hotel that had been turned into a detention center, as part of a $7.5 million arrangement with that government.
The First Circuit's ruling went at the assurances themselves. The panel cast doubt on the credibility of the blanket guarantees the government relies on, and noted that the policy contains no protection against chain refoulement, the practice of sending someone to a country that then sends them onward to the country the United States was barred from removing them to. A report by Democrats on the Senate Foreign Relations Committee found that more than 80 percent of third-country nationals had been refouled. Anwen Hughes of Human Rights First said people removed under the policy have been dumped without documentation in countries where they have never lived, and have faced arbitrary detention and physical abuse there.
What Justice Jackson weighs before Monday afternoon
Jackson has initial responsibility for emergency applications from the First Circuit, so the file is hers until she decides otherwise. She could enter an administrative stay, which buys time without deciding anything. She could grant a stay pending appeal, letting the policy operate for the duration. She could deny the request and let the First Circuit's ruling stand while the appeal proceeds. She could also refer the matter to the full Court, which Sauer asked for if she does not act immediately.
If she grants the stay, the First Circuit's ruling goes dormant for months and removals continue under a policy two courts have found unlawful. If she denies it, the government has to make its case on the merits in the ordinary way, a slower and less certain path than the one it asked for. If she does nothing by Monday, the immigrants' response arrives and the government gets a reply.
What no outcome this week reaches is the people already sent. Twenty-five thousand removals sit outside any relief the Court can order on an emergency application. The men in the Central African Republic who learned their destination mid-flight are not parties to this filing, and the five still held in a South Sudan compound have been beyond the reach of the case since July 2025. The order Jackson is weighing governs who goes next and what they are told before they board, which is a smaller question than the policy and the only one the Court can answer in a week.
Primary sources
- SCOTUSblog, Amy Howe, for the docket numbers in Department of Homeland Security v. D.V.D., the 42-page filing, Sauer's characterization of the lower court rulings, the full procedural history of the prior emergency applications, and the deadline Justice Jackson set for the immigrants' response.
- ABC News, Laura Romero, for the text of Sauer's filing on the canceled flight, Judge Seth Aframe's opinion language on notice, the account of men deported to the Central African Republic who learned their destination mid-flight, Attorney General Blanche's statement, and the DHS general counsel's description of the policy.
- Courthouse News Service, Megan Butler, for the terms of the emergency application, the three-country flight and its 70 passengers, Trina Realmuto's statement, the figure of 35 destination countries, and the Associated Press reporting on Equatorial Guinea.
- The American Prospect, Gillian Brockell, for the First Circuit's reasoning on blanket assurances and chain refoulement, the Senate Foreign Relations Committee figure, the South Sudan sequence and the men still held, Matt Adams's statement, Anwen Hughes's statement, and Dana Camilleri's account of the earlier stay.