778 F.Supp.3d 355
D. Mass.2025Background:
- DHS issued a February 18, 2025 directive and a March 30, 2025 Guidance authorizing removal of noncitizens to third countries (countries not listed in their original removal orders), permitting removal without individualized notice when the third country has provided diplomatic assurances.
- Plaintiffs are four noncitizens with final removal orders (including withholding/CAT grants for some) who allege DHS has a practice of designating and deporting people to third countries without prior written notice or an opportunity to assert fear-of-persecution/torture claims.
- Plaintiffs sued and sought class certification and a preliminary injunction; the court entered a TRO, heard expedited briefing/argument, and resolved the motions.
- Defendants argued jurisdiction was barred by 8 U.S.C. § 1252 (including subsections (a), (b)(9), (f)(1), and (g)) and that existing proceedings or a motion to reopen are adequate remedies; plaintiffs argued those remedies are often unavailable or ineffective for pre-removal challenges.
- The court held it has jurisdiction to hear plaintiffs’ collateral due-process and statutory claims, granted Rule 23(b)(2) class certification, found plaintiffs likely to succeed on a procedural-due-process claim, and issued a tailored preliminary injunction requiring written notice, a chance to assert reasonable-fear/CAT claims, a motion-to-reopen where reasonable fear is shown, and a minimum 15-day window to seek reopening if reasonable fear is denied.
Issues:
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether §1252(a)/(b)(9) or (f)(1) bars district-court review of pre-removal third-country procedures | Plaintiffs: claims are collateral to removal orders and arise after proceedings, so §1252 channeling does not bar jurisdiction | Defendants: challenges should be channeled through motions to reopen and appeals; §1252(f)(1) limits class injunctive relief | Court: §1252(a)/(b) and §1252(g) do not bar review of these collateral legal claims; §1252(f)(1) does not bar declaratory relief for the class and does not reach the FARRA-based CAT relief at issue |
| Whether the Fifth Amendment requires notice and an opportunity to assert fear-based claims before third-country removal | Plaintiffs: Due process requires notice in advance and opportunity to seek withholding/CAT before deportation to a newly designated country | Defendants: No additional process is required beyond prior proceedings; reopening is the appropriate vehicle | Court: Likely success on the merits—due process requires reasonable advance notice and a meaningful opportunity to raise CAT/withholding claims before removal to a third country |
| Whether DHS’s March Guidance (blanket diplomatic assurances, no individualized review) satisfies statutory/regulatory and due-process protections | Plaintiffs: Blanket assurances and no individualized review are insufficient; non-state actor risk and chain-refoulement require case-by-case review | Defendants: Diplomatic assurances are sufficient; court should not second-guess executive assurances | Court: March Guidance is insufficient because it permits removal without individualized assessment or meaningful review; diplomatic assurances alone do not satisfy process |
| Class certification under Rule 23(b)(2) for injunctive/declaratory relief | Plaintiffs: common practice affects all similarly situated; common question (need for notice/opportunity) predominates | Defendants: Class is too heterogeneous; individual issues predominate; named plaintiffs not typical | Court: Certified class under Rule 23(b)(2): numerosity, commonality, typicality, and adequacy satisfied; injunctive/declaratory relief appropriate |
| Scope of preliminary relief and remedy for class members | Plaintiffs: ask for notice, opportunity to assert fear, reopening, and return for one plaintiff | Defendants: Relief should be limited; return is improper without factual showing | Court: Granted preliminary injunction in part—require written notice (and counsel copy), meaningful opportunity to assert reasonable fear of CAT, DHS must move to reopen if reasonable fear shown, and provide at least 15 days to file a motion to reopen if reasonable fear denied; declined to order immediate return of O.C.G. pending expedited discovery |
Key Cases Cited
- Jama v. Immigration & Customs Enforcement, 543 U.S. 335 (2005) (statutory/regulatory framework protects individuals facing persecution in designated removal countries)
- Moncrieffe v. Holder, 569 U.S. 184 (2013) (mandatory relief where statutory eligibility is established)
- Jennings v. Rodriguez, 583 U.S. 281 (2018) (§1252(b)(9) does not sweep in all claims that merely result from removal)
- Reno v. American-Arab Anti-Discrimination Committee, 525 U.S. 471 (1999) (§1252(g) is narrowly read to cover three discrete discretionary actions)
- Mathews v. Eldridge, 424 U.S. 319 (1976) (three-factor balancing test for required procedural protections)
- Mullane v. Central Hanover Bank & Trust Co., 339 U.S. 306 (1950) (written notice and notice reasonably calculated to inform are due process basics)
- Nken v. Holder, 556 U.S. 418 (2009) (public interest in preventing wrongful removals vs. interest in prompt execution of removal orders)
- Aguilar v. U.S. Immigration & Customs Enforcement, 510 F.3d 1 (1st Cir. 2007) (channeling limitations do not bar independent collateral claims)