D.V.D. v. U.S. Department of Homeland SecurityD.V.D. v. U.S. Department of Homeland Security
MURPHY, J.
This case presents a simple question: before the United States forcibly sends someone to a country other than their country of origin, must that person be told where they are going and be given a chance to tell the United States that they might be killed if sent there? Defendants argue that the United States may send a deportable alien to a country not of their origin, not where an immigration judge has ordered, where they may be immediately tortured and killed, without providing that person any opportunity to tell the deporting authorities that they face grave danger or death because of such a deportation.
Plaintiffs are simply asking to be told they are going to be deported to a new country before they are taken to such a country, and be given an opportunity to explain why such a deportation will likely result in their persecution, torture, and/or death. This small modicum of process is mandated by the Constitution of the United States, and for this reason, the motion for class certification is GRANTED, and the motion for preliminary injunction is GRANTED in part.
I. Background
A. Legal Background
1. Removal Proceedings
When the Government wants to remove an individual, the normal path is through removal proceedings, requiring an evidentiary hearing before an Immigration Judge (“IJ“).
Meanwhile, the alien is also entitled to seek various protections, including asylum, withholding of removal, and Convention Against Torture (“CAT“) protections.
2. Reinstatement or Withholding-Only Proceedings
Alternatively, the U.S. Department of Homeland Security (“DHS“) may reinstate a prior order of removal for an alien it finds “has reentered the United States illegally after having been removed or having departed voluntarily, under an order of removal.”
While in both processes aliens are barred from pursuing nearly all avenues of relief from removal, aliens may still seek protection through withholding of removal under
3. Third-Country Removals
Because the removal proceedings happen on one track, while withholding and CAT proceedings happen on another track, a situation may arise where the Government has an order of removal but no country that an IJ has authorized for that removal.
In certain circumstances, where the Government may not remove an alien to any country covered by that alien‘s order of removal, the Government may still remove the alien to any “country whose government will accept the alien into that country.”
Notwithstanding paragraphs [b](1) and [b](2), the Attorney General may not remove an alien to a country if the Attorney General decides that the alien‘s life or freedom would be threatened in that country because of the alien‘s race, religion, nationality, membership in a particular social group, or political opinion.
B. Factual Background
1. The February 18, 2025 Directive and March 30, 2025 Guidance
On January 20, 2025, President Donald J. Trump issued Executive Order 14165, entitled “Securing our Borders.” 90 Fed. Reg. 8467. As relevant here, on or about February 18, 2025, DHS issued a directive to the Enforcement and Removal Operations (“ERO“) division of Immigration and Customs Enforcement (“ICE“). Dkt. 1-4 (the “February Directive“). The February Directive instructs ERO officers to review the cases of aliens granted withholding of removal or protection under CAT “to determine the viability of removal to a third country and accordingly whether the alien should be re-detained” and, in case of persons who previously could not be removed because the designated countries were unwilling to receive them, “review for re-detention . . . in light of the Administration‘s significant gains with regard to previously recalcitrant countries and the potential for third country removals.” Id. at 2.
On March 23, 2025, Plaintiffs filed this lawsuit challenging, in part, the February Directive. Dkt. 1 (“Compl.“). Plaintiffs seek an order guaranteeing them the opportunity to show—before being removed to countries
On March 28, 2025, the Court entered a temporary restraining order after hearing oral arguments from both parties.10 Dkt. 34.
On March 30, 2025, DHS issued an updated guidance (the “March Guidance“) on removals to third countries. Dkt. 43-1. This guidance dictates that aliens may be removеd to a third country without notice if the United States has received assurances from that country that aliens removed from the United States will not be persecuted or tortured. Id. at 2-3. Importantly, these assurances are not individualized, and the March Guidance provides for no review, meaning that deportations to a third country can occur without any consideration of the individual risks facing a particular alien. Id. According to the March Guidance, DHS will provide the alien with notice of the third country (and an opportunity to affirmatively assert a fear of return to that third country) only if the United States has not received assurances, or if the Department of State does not believe those assurances to be credible. Id. at 3.
2. Plaintiffs’ Cases
Plaintiffs are individuals subject to final orders of removal, allegedly at imminent risk of deportation to countries other than those authorized by their respective orders. Compl. ¶ 1.11
Plaintiff D.V.D.12 is a citizen of Cuba who entered the United States from Mexico. Id. ¶¶ 10, 62. In February 2017, in removal proceedings, he was ordered removed. Id. ¶ 62. His removal order specified only Cuba as the country of removal. Id. He was released from detention on an Order of Supervision in May of 2017. Id. Plaintiffs allege that on March 10, 2025, ICE instructed D.V.D.‘s attorney that D.V.D. needed to report for an in-person check-in on March 28,
2025, and that the ICE officer later explained that ICE was requiring all people to report in person and more frequently on a case-by-case basis. Id. ¶¶ 64-66. If deported to a third country, D.V.D. alleges that he is at risk of persecution due to his mental health conditions or possible imprisonment in certain countries. Id. ¶ 67. At oral argument on March 28, 2025, counsel indicated that D.V.D. had not been detained at that day‘s check-in and had been given another check-in date in September 2025. Dkt. 44 (“March 28, 2025 Tr.“) at 4:24-25.
Plaintiff M.M. is a citizen of Honduras who fled due to severe domestic violence. Compl. ¶¶ 11, 68. In 2014, because she had previously been ordered removed from the United States, DHS issued a reinstatement order. Id. ¶ 69. In withholding-only proceedings before an IJ in 2021, she was granted withholding of removal to Honduras. Id. ¶¶ 69-70. M.M. is not in ICE custody, but she alleges that on March 7, 2025, an ICE officer informed her that she was on a list of people who would be deported imminently. Id. ¶ 71. If deported
Plaintiff E.F.D. is a citizen of Ecuador. Compl. ¶¶ 12, 74. In October 2015, he was placed in removal proceedings after entering the United States and raising a credible fear of return. Id. In 2018, in removal proceedings, an IJ granted E.F.D.‘s application for CAT protection. Id. ¶ 75. On March 18, 2025, ICE re-detained him. Id. ¶¶ 12, 76. He has not yet been told when his removal might happen or to where. Id. ¶¶ 76-77. E.F.D. alleges that he will be deported to a third country without the opportunity to apply for protection, which could include countries that will deport him back to Ecuador, from which he was awarded CAT protection, or to countries where he has had prior dangerous experiences. Id. ¶ 77.
Plaintiff O.C.G. is a native of Guatemala who was issued an expedited removal order pursuant to
Each Plaintiff alleges that he or she has valid reasons to fear removal to specific countries that were not included in their removal orders. Id. ¶¶ 67, 73, 77, 88. Plaintiffs challenge Defendants’ policy or practice of failing to provide notice and an opportunity to be heard prior to removal to a country that was not designated in their removal orders, which Plaintiffs allege violates the INA, FARRA, regulations implementing the two statutes, and the Due Process Clause of the Fifth Amendment. Id. ¶¶ 99-138.
3. Current Motions
Before the Court now are Plaintiffs’ Motion for Class Certification, Dkt. 4, and Motion for a Preliminary Injunction, Dkt.
II. Jurisdiction
Several subsections of
A. Sections 1252(a) and (b)
In the REAL ID Act of 2005, Congress amended the INA to limit the ways by which an individual might challenge his order of removal. Singh v. Gonzales, 499 F.3d 969, 977 (9th Cir. 2007) (citing
Accordingly, actions that do not challenge final orders of removal are not subject to this channeling scheme. J.E.F.M., 837 F.3d at 1032. “[A] suit brought against immigration authorities is not per se a challenge to a removal order.” Delgado v. Quarantillo, 643 F.3d 52, 55 (2d Cir. 2011).
The Supreme Court has expressly affirmed this proposition, explaining that the
The First Circuit has had further opportunity to clarify that the scope of section 1252(b)(9) is limited to claims that specifically arise out of what happens in the removal proceeding:
[R]emoval proceedings are confined to determining whether a particular alien should be deported. See [
8 U.S.C. § 1229a(c)(1)(A) ]. While legal and factual issues relating to that question can be raised in removal proceedings and eventually brought to the court of appeals for judicial review, certain claims, by reason of the nature of the right asserted, cannot be raised efficaciously within the administrative proceedings delineated in the INA. See, e.g., McNary v. Haitian Refugee Ctr., Inc., 498 U.S. 479, 496, 111 S. Ct. 888 (1991); Jupiter v. Ashcroft, 396 F.3d 487, 492 (1st Cir. 2005). Requiring the exhaustion of those claims would foreclose them from any meaningful judicial review. Given Congress‘s clear intention to channel, rather than bar, judicial review through the mechanism of
section 1252(b)(9), reading “arising from” as used in that statute to encompass those claims would be perverse.
Aguilar v. U.S. Immigr. & Customs Enf‘t, 510 F.3d 1, 11 (1st Cir. 2007). As such, “claims which cannot be raised in removal proceedings and eventually brought to the court of appeals on a petition for review are ‘independent of, or wholly collateral to, the removal process,’ not ‘arising from’ it.” Gicharu v. Carr, 983 F.3d 13, 16 (1st Cir. 2020) (quoting Aguilar, 510 F.3d at 11).18
Defendants propose that Plaintiffs can “cram,” Jennings, 583 U.S. at 294, their fear-based claims into the removal proceedings (thereby placing those claims into section 1252‘s jurisdictional funneling scheme) by filing motions to reopen their immigration proceedings. Dkt. 51 (“PI Opp.“) at 8-9. But this Court finds that remedy to be both legally insufficient and logistically impossible, effectively “foreclos[ing] all meaningful judicial review.” See Aguilar, 510 F.3d at 12 (quoting Thunder Basin Coal Co. v. Reich, 510 U.S. 200, 212-13 (1994)).20
Even where an alien may move as of right, or in the unlikely event that the immigration court reopens the case sua sponte, there is no reason to believe that the court will entertain such preemptive CAT and withholding claims. “[A]n applicant is not entitled to have the agency adjudicate claims of relief that relate ‘to a country that nobody is trying to send them to.‘” Sadychov v. Holder, 565 F. App‘x 648, 651 (9th Cir. 2014) (quoting She v. Holder, 629 F.3d 958, 965 (9th Cir. 2010), superseded on other grounds by statute as stated in Dai v. Sessions, 884 F.3d 858, 867 n.8 (9th Cir. 2018)) (explaining that “should circumstances change such that Azerbaijan is the designated country of removal, the agency must provide [plaintiff] with notice and an opportunity to reopen his case for full adjudication of his claim of withholding of removal from Azerbaijan“). Until an individual receives notice of the country to which he is being deported, he has no basis for reopening his immigration case and no merits basis to seek withholding from a hypothetical third country.24
The inability to effectively raise preemptive CAT and/or withholdings claims before an IJ precludes meаningful review in courts of appeals. That is so because courts of appeals are limited to the administrative record,
Finally, Defendants argue that “Congress, in its discretion, implemented [CAT] by directing the issuance of regulations, expressly depriving courts of jurisdiction to review those regulations, and channeling all review of individual CAT claims into review of final orders of removal.”27 PI Opp. at 10 (citing FARRA § 2242(d);
B. Section 1252(g)
The Supreme Court has explained that
Following AADC, the First Circuit has held that section 1252(g) does not bar review of the “lawfulness” of a removal-related action because such claims are “collateral” to the discretionary decisions immunized by section 1252(g). Kong v. United States, 62 F.4th 608, 617 (1st Cir. 2023); accord United States v. Hovsepian, 359 F.3d 1144, 1155 (9th Cir. 2004) (en banc) (“The district court may consider a purely legal question that does not challenge the Attorney General‘s discretionary authority, even if the answer to that legal question—a description of the relevant law—forms the backdrop against which the Attorney General later will exercise discretionary
authority.“); Madu v. U.S. Att‘y Gen., 470 F.3d 1362, 1368 (11th Cir. 2006) (“While this provision bars courts from reviewing certain exercises of discretion by the attorney general, it does not proscribe substantive review of the underlying legal bases for those discretionary decisions and actions.“); Bowrin v. U.S. INS, 194 F.3d 483, 488 (4th Cir. 1999) (holding that section 1252 “does not apply” to Government‘s interpretations of law); see also Texas v. United States, 809 F.3d 134, 164 (5th Cir. 2015), as revised (Nov. 25, 2015) (“The [Supreme] Court [in AADC] emphasized that § 1252(g) is not ‘a general jurisdictional limitation,’ but rather ‘applies only to three discrete actions.‘” (quoting AADC, 525 U.S. at 482)), affirmed by an equally divided court sub nom. United States v. Texas, 579 U.S. 547 (2016); cf. Camarena v. Dir., Immigr. & Customs Enf‘t, 988 F.3d 1268, 1271, 1272–73 & n.2 (11th Cir. 2021) (confirming its narrow reading of section 1252(g) in Madu, based on AADC, but finding that section 1252(g) barred review of decision to remove pending discretionary waiver process).Hewing close to the Supreme Court‘s guidance in AADC and the First Circuit‘s holding in Kong, this Court will not construe section 1252(g) to immunize an unlawful practice from judicial review. See also Bowen v. Michigan Acad. of Family Physicians, 476 U.S. 667, 671–72 (1986) (“[O]nly upon a showing of ‘clear and convincing evidence’ of a contrary legislative intent should the courts restrict access to judicial review.“). Here, Plaintiffs’ claims do not arise from Defendants’ discretionary decisions to execute their removal orders. Nor do Plaintiffs challenge their removability. What Plaintiffs challenge is Defendants’ authority to effectively depart from the remоval orders by designating new countries for removal outside of the immigration proceedings and, in doing so, circumvent Plaintiffs’ due-process rights and the carefully crafted scheme that Congress has set forth.29 See Tazu v. Att‘y Gen. U.S., 975 F.3d 292, 298 (3d Cir. 2020) (“[W]hen the Act deprives the Attorney General of the discretion to act, a challenge to that lack of statutory authority is not barred as a challenge to the exercise of discretion.“). These assertions are collateral to Defendants’ decision to execute Plaintiffs’ removal, and thus not subject to section 1252(g)‘s jurisdictional bar. See Kong, 62 F.4th at 617.
This Court‘s decision is in accord with numerous sister courts around the country that have recognized that section 1252(g) shields only discretionary decisions concerning the three stages of the deportation process. See, e.g., Abrego Garcia v. Noem, — F. Supp. 3d —, 2025 WL 1014261, at *7–8 (D. Md. Apr. 6, 2025), aff‘d, No. 25-1345, 2025 WL 1021113 (4th Cir. Apr. 7, 2025) [hereinafter Abrego Garcia II], aff‘d in relevant part sub nom. Noem v. Abrego Garcia, 604 U.S. —, 2025 WL 1077101 (Apr. 10, 2025) (per curiam) [hereinafter Abrego Garcia III]; Gondal v. U.S. Dep‘t of Homeland Sec., 343 F. Supp. 3d 83, 92 (E.D.N.Y. 2018); Coyotl v. Kelly, 261 F. Supp. 3d 1328, 1339–41 (N.D. Ga. 2017); Hovsepian, 359 F.3d at 1155; Bowrin, 194 F.3d at 488. But see Silva v. United States, 866 F.3d 938, 941 (8th Cir. 2017) (openly disagreeing with the Supreme Court‘s reading of the statute, as articulated in AADC). This Court may review the purely legal question of whether the Constitution and relevant statutes require notice and an opportunity to be heard prior to removal
There is no question that, if eligibility is demonstrated, withholding of removal and CAT protections are mandatory and removal to that country cannot occur. See
III. Motion for Class Certification
Plaintiffs seek to certify a class, which they define as:
All individuals who have a final removal order issued in proceedings under Section 240, 241(a)(5), or 238(b) of the INA (including withholding-only proceedings) whom DHS has deported or will deport on or after February 18, 2025, to a country (a) not previously designated as the country or alternative country of removal, and (b) not identified in writing in the prior proceedings as a country to which the individual would be removed.
Dkt. 4 at 1.
As a threshold matter, limitations on certain class-wide injunctive relief under
As to the requested injunctive relief,
Defendants would have the Court go beyond the plain meaning of the statute to imply a bar to actions that collaterally impact covered parts of the INA. PI Opp. at 5–6. However,
The Fifth Circuit put it well and plainly in Texas v. United States Department of Homeland Security, 123 F.4th 186, 209–10 (5th Cir. 2024):
Texas does not seek to enjoin the operation of any of the provisions listed in
§ 1252(f)(1) . It seeks an injunction only against conduct—namely, cutting or other destruction of its c-wire unauthorized by§ 1357(a)(3) . Accordingly, because§ 1357(a)(3) is not one of the statutes referenced in§ 1252(f)(1) , the injunction Texas seeks is not barred. Such an injunction would, at most, have only a “collateral effect on the operation” of the covered statutes (specifically,§§ 1225 and1226 ). Aleman Gonzalez, 596 U.S. at 553 n.4, 142 S.Ct. 2057. That is especially the case here, where the district court found Defendants were cutting c-wire neither to detain aliens nor to respond to emergencies.
Defendants respond that, in essence, they are the ultimate judges of whether
Class actions serve as “an exception to the usual rule that litigation is conducted by and on behalf of the individual named parties only.” Comcast Corp. v. Behrend, 569 U.S. 27, 33 (2013) (citation and internal quotations omitted). A court may certify a class only if it finds that the proposed class satisfies all the requirements of
B. Discussion
1. 23(a)(1) Numerosity
To satisfy the numerosity requirement, a plaintiff must demonstrate that the class is so numerous that joinder would be “impracticable.”
2. 23(a)(2) Commonality
Satisfying the commonality requirement in the instant case is simple and straightforward: Plaintiffs seek a single, common order that Defendants comply with the strictures of due process before deporting them to a county not covered by
The commonality requirement is met when “there are questions of law or fact common to the class.”
Defendants argue that the proposed class is overly broad, includes “clear dissimilarities between the proposed class and its proposed representatives,” and includes aliens with “different processes and pathways for relief.” Class. Cert. Opp. at 11–14. As such, Defendants argue class certification is not appropriate. Id. The commonality requirement is met, notwithstanding purported or actual dissimilarities among named and potential class members, based on the common due-process issue. Due process adheres regardless of the removal context. See Khouzam v. Att‘y Gen., 549 F.3d 235, 256–57 (3d Cir. 2008) (“In fact, the basic dictates of due process must be met whether an alien facing removal overstayed a visa, entered the country undetected, or became a legal resident but then committed an enumerated crime.” (citations omitted)). That specific circumstances may differ among the various putative class members does not undermine that they all seek notice and an opportunity to be heard, and the opportunity to challenge a policy or practice which allegedly denies it. See, e.g., Gomes, 561 F. Supp. 3d at 101 (“[T]he existence of individual differences among putative class members does not foreclose a finding of commonality so long as least one common issue is raised.“).
Likewise, that some members may present additional, individualized issues, e.g., return to the United States if unlawfully removed,34 does not affect commonality.
“Plaintiffs in this case have identified a single alleged practice“—Defendants’ system-wide policy or practice of designating aliens for removal to a third country without first providing those aliens notice and an opportunity to apply for protection from removal to that country—“that provides the basis for every class member‘s injury.” Ramirez v. ICE, 338 F. Supp. 3d 1, 42–50 (D.D.C. 2018) (certifying class of immigrant teens challenging transfers to ICE custody). Regardless of differences in the removal procedures applicable to each class member, they all seek to establish their right to due process.35 See Savino v. Souza, 453 F. Supp. 3d 441, 451 (D. Mass. 2020) (determining “that the admittedly significant variation among the Detainees does not defeat commonality“); Quadrelli v. Moniz, 2020 WL 3051778, at *5 (D. Mass. June 8, 2020) (following courts that have certified classes of individuals “who have alleged a general risk of harm due to a policy or practice, even if there might additionally be a unique or distinct impact as to an individual putative class member“).
Since Plaintiffs have identified a single, common question at the heart of the claims, commonality has been satisfied. See Gomes, 561 F. Supp. 3d at 99 (“[A] single common question is sufficient to satisfy the requirements of Rule 23(a)(2).“). Answering the common legal question of whether
Thus, the Court finds that Plaintiffs have satisfied the commonality requirement under
3. 23(a)(3) Typicality
The typicality requirement mandates that the “claims or defenses of the representative parties are typical of the claims or defenses of the class.”
Defendants argue that “[t]he proposed class lacks typicality for the same reasons it lacks commonality” and that “the class representatives are not part of the proposed class and do not possess the same interest or suffer the same injury as the proposed class members because they cannot demonstrate they will be removed absent any notice or opportunity to assert a fear-based claim.” Class Cert. Opp. at 15–16 (emphases in original).36
Typicality is satisfied here for largely the same reasons that commonality is satisfied. The named Plaintiffs and putative class members all share an identical interest in an injunction mandating due-process protections prior to their removal to a third country. Defendants have taken the position that there is no due process entitled to any alien, under any method of removal, prior to removal to a third country regardless of any potentiality that such an alien will be tortured or murdered upon arrival. See March 28, 2025 Tr. at 10:17–11:1 (“THE COURT: In this posture, where it is the discretionary decision of the department that‘s changing the third-party designation, does the person who‘s going to be deported have a right to be informed and be given an opportunity to be heard as to the dangerousness of that third country designation? MS. LARAKERS: DHS‘s position is no. THE COURT: They dоn‘t have to be told anything and given no opportunity to be heard? MS. LARAKERS: DHS‘s position is no.“). Between Defendants’ representations to the Court and the Court‘s ultimate finding that the procedures outlined in the March Guidance do
4. 23(a)(4) Adequacy of Representation
The adequacy requirement is met when the representative parties will “fairly and adequately protect the interests of the class.”
Defendants argue that “Plaintiffs fail to meet the adequacy requirement for the same reasons Plaintiffs fail to meet the commonality and typicality requirements.” Class Cert. Opp. at 16. But the adequacy requirement looks to whether the named Plaintiffs will fairly and adequately protect the interests of the proposed class. See S. States Police, 241 F.R.D. at 88. There is nothing in the record to suggest that the named Plaintiffs seek any unique or additional benefit from this litigation that may make their interests different from or adverse to those of absent class members. Cf. Amchem, 521 U.S. at 626–27 (holding that adequacy requirement was not met where named plaintiffs stood to benefit disproportionately and at the expense of other potential class membеrs). Thus, the Court finds that Plaintiffs have satisfied the adequacy requirement under
5. 23(b)(2) Injunctive or Declaratory Class
Defendants’ first set of arguments goes mainly to whether the named Plaintiffs have valid claims. See Class Cert. Opp. at 17 (arguing that O.C.G. received notice of his removal and had an opportunity to assert fear-based claims); id. (arguing that E.F.D. and M.M. have an adequate
More broadly, Defendants argue that, “[t]o the extent Plaintiffs are entitled to some additional procedures under the Due Process Clause, those procedures would be different for each aliеn depending on the underlying facts and circumstances of their case.” Class Cert. Opp. at 18. But Defendants have not provided the Court with a single example of how an “underlying fact” and/or “circumstance” might lead to different procedural minima for one individual versus another. Cf. Reid v. Donelan, 17 F.4th 1, 9 (1st Cir. 2021) (finding certification improper where district court recognized that “relief must be adjudicated on an individual basis“). Defendants’ own contention that—if due process applies to third-country removals—the March Guidance is sufficient, PI Opp. at 8, recognizes that it is possible to establish a baseline for all putative class members. The Court does not find that the claims here “hinge on the individual circumstances of each class member.” Reid, 17 F.4th at 11. Rather, Defendants have taken a broad position, subject to class-wide challenge.
In sum, Plaintiffs challenge a policy or practice that impacts all putative class members: failing to provide meaningful notice and opportunity to present a fear-based claim before executing removal to a third country. In doing so, Plaintiffs seek injunctive and declaratory relief that applies to the class as a whole, satisfying
IV. Preliminary Injunction
A. Legal Standard
“[T]he issuance of preliminary injunctive relief is ‘an extraordinary and drastic remedy that is never awarded as of right.‘” Howe v. U.S. Bank Nat‘l Ass‘n as Tr. for RMAC Tr. Series 2016-CTT, 440 F. Supp. 3d 99, 102 (D. Mass. 2020) (quoting Peoples Fed. Sav. Bank v. People‘s United Bank, 672 F.3d 1, 8–9 (1st Cir. 2012)). “A plaintiff seeking a preliminary injunction must establish that he is likely to succeed on the merits, that he is likely to suffer irreparable harm in the absence of preliminary relief, that the balance of equities tips in his favor, and that an injunction is in the public interest.” Together Emps. v. Mass Gen. Brigham Inc., 32 F.4th 82, 85 (1st Cir. 2022) (quoting Winter v. Nat. Res. Def. Council, Inc., 555 U.S. 7, 20 (2008)). Of the four factors, likelihood of success “weighs most heavily” in the analysis. Ryan v. U.S. Immigr. & Customs Enf‘t, 974 F.3d 9, 18 (1st Cir. 2020).
In deciding a motion for preliminary injunction, “[t]he court may accept
B. Discussion
1. Likelihood of Success
Plaintiffs have established that they are likely to succeed in showing that Defendants have a policy or practice of executing third-country removals without providing notice and a meaningful opportunity to present fear-based claims, and that such policy or practice constitutes a deprivation of procedural due process.
“To establish a procedural due process violation, the plaintiff ‘must identify a protected liberty or property interest and allege that the defendants, acting under color of state law, deprived [him] of that interest without constitutionally adequate process.‘” Gonzalez-Droz v. Gonzalez-Colon, 660 F.3d 1, 13 (1st Cir. 2011) (quoting Aponte–Torres v. Univ. of P.R., 445 F.3d 50, 56 (1st Cir. 2006)). “The basic purport of the constitutional requirement is that, before a significant deprivation of liberty or property takes place at the state‘s hands, the affected individual must be forewarned and afforded an opportunity to be heard ‘at a meaningful time and in a meaningful manner.‘” Amsden v. Moran, 904 F.2d 748, 753 (1st Cir. 1990) (quoting Armstrong v. Manzo, 380 U.S. 545, 552 (1965)).
Congress clearly established the right to deferral or withholding of removal based on a legitimate fear-based claim. Jama v. Immigr. & Customs Enf‘t, 543 U.S. 335, 348 (2005) (explaining that individuals who “face persecution or other mistreatment in the country designated” as their place of removal “have a number of available remedies,” by statute, regulation, and under international law, to “ensur[e] their humane treatment“).
More generally speaking, “[i]t is well established that the Fifth Amendment entitles aliens to ‘due process of law’ in the context of removal proceedings.” Trump v. J.G.G., 604 U.S. —, 2025 WL 1024097, at *2 (Apr. 7, 2025) (per curiam) [hereinafter J.G.G. III] (quoting Reno v. Flores, 507 U.S. 292, 306 (1993)). As all nine Supreme Court justices agreed less than two weeks ago, this means that “notice must be afforded within a reasonable time and in such a manner as will allow them to actually seek . . . relief in the proper venue before such removal ocсurs.” Id.; see also id.
Likewise, there can be no disagreement that the same constitutional guarantees apply to withholding-only relief. Guzman Chavez, 594 U.S. at 557 (Breyer, J., dissenting) (“And all here agree that the aliens are legally entitled to seek . . . withholding-only relief.” (citing Fernandez-Vargas v. Gonzales, 548 U.S. 30, 35 n. 4 (2006))); Abrego Garcia III, 2025 WL 1077101, at *2 (Sotomayor, J., concurring) (explaining that the Government has an “obligation to provide [the plaintiff who was subject to an order of removal] . . . notice and an opportunity to be heard” and ensure compliance with its “obligations under [CAT]” prior to removal); see also Andriasian v. I.N.S., 180 F.3d 1033, 1041 (9th Cir. 1999) (finding that “last minute designation” of removal country during formal proceedings “violated a basic tenet of constitutional due process: that individuals whose rights are being determined are entitled to notice of the issues to be adjudicated, so that they will have the opportunity to prepare and present relevant arguments and evidence“); Kossov v. INS, 132 F.3d 405 (7th Cir. 1998) (due-process violation to order deportation to Russia after a claim of asylum as to Latvia where uncounseled noncitizen was provided insufficient notice of Russia possibility).
The Court rejects Defendants’ argument that aliens have already received, during their initial removal proceedings, all the process to which they are entitled, so as to justify providing no additional process prior to third-country removal. See April 10, 2025 Rough Tr. at 11:1–4 (“MR. ENSIGN: Your Honor, where they could have raised it previously and did not do so, the Due Process Clause does not require an additional procedural opportunity to raise [it] in . . . that context.“). Defendants argue that aliens could have brought up, during their initial removal proсeedings, all the countries where they have concerns that they will be tortured. See, e.g., April 10, 2025 Rough Tr. at 4:13–16 (“[MR. ENSIGN:] They also previously would have had an opportunity to raise it during their initial removal proceedings and they would be asked on their [I-589] form if they have fear of returning anywhere.“). This is both impossible as a practical matter, since the immigration court does not normally consider claims about countries not proposed as a country of removal,39 and fails to consider that conditions change in countries change over time.40 Listing all the countries in the world as to which an individual might have a reasonable fear is also impractical: doing so would potentially require, for example, a person with a same-sex sexual orientation to list, at least, all 64 countries where such an orientation is illegal such that the individual fears torture. See Homosexuality: The countries where it is illegal to be gay, BBC (Mar. 31, 2023), https://perma.cc/32KN-RH6Q. Indeed, the Assistant to the Solicitor General, arguing before the Supreme Court on the topic of third-country removals less than a month ago, affirmatively stated that “[w]e would have to give the person notice of the third country and give them the opportunity to raise a reasonable fear of torture or persecution in that third country,” even where that individual was already subject to an order of removal.41
The Court finds it likely that Defendants have applied and will continue to apply the alleged policy of removing aliens to third countries without notice and an opportunity to be heard on fear-based claims—in other words, without due process. Defendants have repeatedly argued that they have no obligation to provide any process whatsoever when newly designating a third country for removal. See, e.g., March 28, 2025 Tr. at 10:17–11:1; April 10, 2025 Rough Tr. at 9:5–8, 10:19–11:4. Defendants’ own avowed position and the numerous declarations Plaintiffs have provided43 substantiate both the prior and future use of Defendants’ policy of providing no notice prior to third-country removal.44
Nor do the procedures outlined in DHS‘s March Guidance satisfy due process. The March Guidance provides no process
Blanket diplomatic assurances do not address DHS‘s obligation to undertake an individualized assessment as to the sufficiency of the assurances, as required under the statutory and regulatory framework. See
Moreover, blanket assurances offer no protection against either torture by non-state actors or chain refoulement, whereby the third country proceeds to return an individual to his country of origin. See, e.g., Compl. ¶¶ 68–69 (detailing domestic violence concerns that led to withholding of removal designation); Dkt. 8-2 ¶¶ 3–4, 7–8, 13 (same). Yet these circumstances can trigger protections under CAT no less than threats coming from state actors.
Even if such blanket assurances might, in some individual cases, satisfy due process, the March Guidance precludes any further review prior to removal. Dkt. 43-1 at 1–2 (providing noncitizens “will be removed without the need for further procedures“). There can be no right without a remedy. Marbury v. Madison, 5 U.S. 137, 163 (1803). Without meaningful review, the rights Congress has provided are little more than dead letter. It simply cannot be, as Defendants contend, that the Government can “decide right now that someone who is in [] custody is getting deported to a third country, give them no notice and no opportunity to say, ‘I will be killed the moment I arrive there,’ and, as long as the [Government] doesn‘t already know that there‘s someone standing there waiting to shoot him, that‘s [] fine.” See March 28, 2025 Tr. at 29:12–18 (“In short, yes.“). Defendants’ obligations
2. Irreparable Harm
“‘Irreparablе injury’ in the preliminary injunction context means an injury that cannot adequately be compensated for either by a later-issued permanent injunction, after a full adjudication on the merits, or by a later-issued damages remedy.” Rio Grande Cmty. Health Ctr., Inc. v. Rullan, 397 F.3d 56, 76 (1st Cir. 2005). “A finding of irreparable harm must be grounded on something more than conjecture, surmise, or a party‘s unsubstantiated fears of what the future may have in store.” Baptiste v. Kennealy, 490 F. Supp. 3d 353, 381 (D. Mass. 2020) (quoting Charlesbank Equity Fund II v. Blinds To Go, Inc., 370 F.3d 151, 162 (1st Cir. 2004)). “It ‘most often exists where a party has no adequate remedy at law.‘” Id. (quoting Charlesbank Equity Fund II, 370 F.3d at 162).
The irreparable harm factor likewise weighs in Plaintiffs’ favor. Here, the threatened harm is clear and simple: persecution, torture, and death. It is hard to imagine harm more irreparable.
Defendants’ argument that this Court has no jurisdiction over already-removed aliens only bolsters Plaintiffs’ argument toward finding irreparable harm. See Class Cert. Opp. at 11–12. Defendants contend that they may remove aliens to third countries with no possibility for review. Id. It is undoubtedly “irreparable injury to reduce to a shell game the basic lifeline of due process before an unprecedented and potentially irreversible removal occurs.” J.G.G. II, 2025 WL 914682, at *30 (Millett, J., concurring).
Thus, Plaintiffs have demonstrated a likelihood of irreparable harm.
3. Balance of Equities and Public Interest
Finally, the Court considers the balance of the equities and the public interest. “These two inquiries merge in a case like this one, where the Government is the party opposing the preliminary injunction.” Devitri v. Cronen, 289 F. Supp. 3d 287, 297 (D. Mass. 2018) (citing Nken v. Holder, 556 U.S. 418, 435 (2009)). In cases implicating removal, “there is a public interest in preventing aliens from being wrongfully removed, particularly to countries where they are likely to face substantial harm.” Nken, 556 U.S. at 436. However, there is also “a public interest in prompt execution of removal orders.” Id.
“To begin with, the Plaintiffs’ likelihood of success on the merits lightens [Defendants‘] stated interests.” Huisha-Huisha v. Mayorkas, 27 F.4th 718, 734 (D.C. Cir. 2022). The Supreme Court has confirmed that “our system does not permit agencies to act unlawfully even in pursuit of desirаble ends.” Alabama Ass‘n of Realtors v. HHS, 594 U.S. 758, 766 (2021); see also NFIB v. Dep‘t of Labor, 595 U.S. 109, 120–21 (2022) (staying an illegal vaccine mandate even though the Government said the mandate would save more than 6,500 lives); Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579, 582 (1952) (affirming district court‘s preliminary injunction of an illegal executive order even though a wartime president said his order was “necessary to avert a national catastrophe“).
Here, the Court has found it likely that these deportations have or will be wrongfully executed and that there has at least been no opportunity for Plaintiffs to demonstrate the substantial harms they might face. The Court finds that these circumstances
4. Limitations of Relief
“[An] injunction should issue only where [it is] essential in order effectually to protect . . . rights against injuries otherwise irremediable.” See Weinberger v. Romero-Barcelo, 456 U.S. 305, 312 (1982) (quoting Cavanaugh v. Looney, 248 U.S. 453, 456 (1919)). Here, the “irremediable” injury would be deportation without meaningful opportunity to present a claim based on fear of persecution, torture, or death.
Accordingly, the Court circumscribes its remedy and declines, at this time, to require the full extent of process Plaintiffs propose. Instead, the Court orders that, prior to removing any alien to a third country, i.e., any country not explicitly provided for on the alien‘s order of removal, Defendants must: (1) provide written notice46 to the alien—and the alien‘s immigration counsel, if any47—of the third country to which the alien may be removed, in a language the alien can understand; (2) provide meaningful opportunity for the alien to raise a fear of return for eligibility for CAT protections; (3) move to reopen the proceedings if the alien demonstrates “reasonable fear“;48 and (4) if the alien is not found to have demonstrated
With respect to the return of O.C.G.,50 the Court recognizes that whether he received notice at all, let alone meaningful notice, is hotly contested. Until the factual dispute of whether he received notice is resolved, the Court will not order the return of O.C.G. A mandatory injunction, as would be required, “alters rather than preserves the status quo,” and is thus subject to an even more heightened level of legal and factual scrutiny. Braintree Lab‘ys, Inc. v. Citigroup Glob. Markets Inc., 622 F.3d 36, 41 (1st Cir. 2010) (citing Massachusetts Coal. of Citizens with Disabilities v. Civ. Def. Agency & Off. of Emergency Preparedness of Mass., 649 F.2d 71, 76 n.7 (1st Cir. 1981)). Instead, Plaintiffs may renew their motion with regards to the return of O.C.G. after discovery. The Court orders the parties to conduct expedited discovery on this issue and file a status update addressing a proposed discovery plan by April 25, 2025.51
C. Bond
The Court exercises its discretion to waive the requirement to post a bond under
For the foregoing reasons, Plaintiffs’ motion for class certification (Dkt. 4) is GRANTED and motion for a preliminary injunction (Dkt. 6) is GRANTED in part.
So Ordered.
Dated: April 18, 2025
/s/ Brian E. Murphy
Brian E. Murphy
Judge, United States District Court
Notes
Having granted class certification, the individual cases of D.V.D. and M.M. are less dispositive as to the issue of likelihood of success. Nevertheless, insofar as they may represent some portion of the class, the Court notes that it does not find such cases unripe. Ripeness concerns both the fitness of the issues for judicial decision and the hardship to the parties of withholding court consideration. Reddy v. Foster, 845 F.3d 493, 501 (1st Cir. 2017) (citing Texas v. United States, 523 U.S. 296, 300–01 (1998)). Here, both tests indicate justiciability. As Plaintiffs challenge Defendants’ policy and practices, rather than the putative class members’ individual removability, no further facts are necessary for judicial review. See Pustell v. Lynn Pub. Schs., 18 F.3d 50, 52 (1st. Cir. 1994) (finding claim ripe where “[n]o further factual development is necessary for us to resolve the question at issue, namely, whether the policy . . . is constitutional“). Likewise, Plaintiffs “suffer the harm of substantial uncertainty if we put off resolving their constitutional claims.” Id.