Supreme Court Stay Clears Third-Country Deportations Without Hearings

By Amara Osei

The U.S. Supreme Court, as the 2026-27 term opened, stayed lower-court injunctions and allowed the Trump administration to deport undocumented persons to third countries without a prior hearing. The case is Department of Homeland Security v. D.V.D. The order, issued on the emergency docket, reasoned that the government would likely succeed on the merits. The Court has since granted certiorari on the merits. Neither the stay nor the grant came with substantive explanation.

What does the policy require?

A February 2025 Department of Homeland Security directive mandates immediate removal of undocumented persons to third countries. "Immediate" means precisely that. Detainees receive no chance to argue a fear of torture or persecution in the destination country, so long as DHS obtains "credible," non-individualized "diplomatic assurances that [any person being deported] will not be persecuted or tortured."

For all other countries, the detainee has 24 hours to show it is "more likely than not" that persecution or torture awaits. If so, the case goes to an immigration judge. If not, ICE must "consider" filing a motion to reconsider or selecting another country.

The named plaintiffs illustrate the stakes. Each appears by initials only:

• D.V.D., a Cuban national with severe mental illness, fears deportation to a country that would deprive him of psychiatric treatment and imprison him on arrival.
• O.C.G., a gay man from Guatemala, "has faced multiple death threats on account of his sexual orientation" and "was kidnapped and raped" in Mexico.
• M.M., a Honduran citizen, was severely beaten by her husband and dreads him locating her in a third country, as he once already did.

What did the lower courts hold?

The U.S. District Court for the District of Massachusetts and the First Circuit held that two statutes implicitly require notice of the destination country and a meaningful opportunity to contest removal. Section 241(b)(3)(A) of the Immigration and Nationality Act, 8 U.S.C. § 1231(b)(3)(A), bars removal where the noncitizen's "life or freedom would be threatened" on protected grounds. Section 2242(a) of the Foreign Affairs Reform and Restructuring Act declares it U.S. policy "not to expel, extradite, or otherwise effect the involuntary return of any person to a country in which there are substantial grounds for believing the person would be in danger of being subjected to torture."

Neither statute, nor the implementing regulations, expressly prescribes notice and a hearing. The lower courts read the protections in anyway. The canon of constitutional avoidance, articulated by Justice Louis Brandeis, supplied reinforcement: "it is a cardinal principal that the Court will first ascertain whether a construction of [a] statute is fairly possible by which the question [of its constitutionality] may be avoided."

Where does international law come in?

The stay drew criticism for its apparent indifference to non-refoulement, the principle that a state may not return a person to a territory "where his life or freedom would be threatened on account of his race, religion, nationality, membership in a particular social group or political opinion." The principle appears in the 1951 Refugee Convention, its 1967 Protocol, and the 1987 Convention Against Torture. It is widely accepted as customary international law, binding on the United States.

Two bodies have spelled out corollaries. The UN Committee Against Torture has stated that diplomatic assurances do not suffice where clear evidence shows the receiving state engages in torture. The UNHCR Executive Committee has detailed procedural protections, including the right to consult a UNHCR representative, exceeding anything sought in D.V.D.

What doctrines could the Court have invoked?

Three settled routes invited engagement, and the Court took none.

• FARRA's purpose. Congress enacted FARRA to incorporate CAT's non-refoulement prohibition, tracking its language nearly verbatim.
• Charming Betsy. Chief Justice John Marshall's 1804 canon holds that "an act of congress ought never to be construed to violate the law of nations, if any other possible construction remains." Ambiguity in the INA should thus be resolved against naive reliance on a state's diplomatic representations.
• Sabbatino. The 1964 decision permits federal courts, under Article III power and international comity, to fashion rules from standards short of binding custom, filling what Judge Henry Friendly called the "interstices" of federal statutes.

What is the practical consequence?

For practitioners, removals to third countries may now proceed pending merits review, without advance notice of destination or a hearing on fear of persecution. Litigators must brief international law arguments at the merits stage, where the Court's silence so far suggests they face an unpersuaded bench. The first Chief Justice, John Jay, once wrote: "We had become a nation. As such we were responsible to others for the observance of the Laws of Nations." The current Court granted cert. It said nothing at all.