Federal Judge Strikes Down DHS “Third-Country” Deportation Policy and Why It Matters for Pretermission in Asylum Cases
On February 25, 2026, a federal judge in Massachusetts issued a sweeping decision holding that the Department of Homeland Security’s policy allowing “third-country” deportations, removals to countries other than the one listed on a person’s removal order, without meaningful notice or a real opportunity to object is unlawful and must be set aside. The ruling is significant not only for people facing imminent removal, but also for the broader due-process “shortcuts” DHS has been trying to normalize, especially in how DHS litigates protection claims and pushes immigration courts toward pretermission of asylum applications rather than full merits hearings.
What is the “third-country deportation” policy?
Under the DHS policy issued in March 2025 and reaffirmed in July 2025, immigration officers could remove someone to a “third country” (a country not designated on the removal order) without first providing notice or an opportunity to contest removal to that specific country, so long as the government had obtained some form of “assurance” from the receiving country about non-persecution/non-torture. The policy placed the burden on the noncitizen to affirmatively state fear, while also stating that officers would not affirmatively ask whether the person feared removal to that third country. In practice, the policy created a system where someone could be removed quickly to a country they have no ties to, sometimes with little time to contact counsel or develop fear-based objections tied to the destination country.
How the policy was challenged
The case arose from a class action brought by noncitizens challenging DHS’s approach to third-country removals. Earlier in the litigation, the court issued a preliminary injunction requiring written notice of the intended third country and a meaningful opportunity to raise fears of persecution, torture, or death in that country, but the dispute escalated through emergency appeals, including Supreme Court intervention that temporarily allowed DHS to continue removals while litigation proceeded. The CBS reporting details episodes the judge cited in which DHS allegedly attempted removals with extremely short timelines and, in the court’s view, repeatedly violated or attempted to violate court-ordered process protections.
The February 25, 2026 ruling: what the judge actually said (and why it matters)
Judge Brian Murphy held that DHS’s third-country removal policy violates federal immigration law and due process, emphasizing that the policy’s “assurances” are too opaque to substitute for the procedural protections Congress mandated, particularly where a person’s “last and only lifeline” may be the ability to raise fear-based objections before the government puts them on a plane. He also paused (stayed) the ruling for 15 days to allow the government time to appeal, signaling the decision is likely headed back to the appellate courts quickly.
“Pretermission” is the practice of disposing of an asylum application without a full merits hearing, typically by finding the application legally insufficient on its face or procedurally defective. EOIR formalized and encouraged this approach in Policy Memorandum 25-28 (April 11, 2025), which expressly contemplates pretermitting “legally insufficient” asylum applications without an evidentiary hearing. The pretermission trend has also been fueled by precedential BIA decisions, most notably Matter of C-A-R-R-, 29 I&N Dec. 13 (BIA 2025), addressing when an I-589 may be treated as incomplete/abandoned, while also clarifying limits (for example, an I-589 is not “incomplete” solely because a declaration wasn’t filed).
Where DHS fits in is practical and immediate: DHS has increasingly relied on motions practice, including motions to pretermit or to narrow protection adjudication, to avoid full evidentiary hearings and to accelerate removal outcomes. Practice materials addressing “motions to pretermit” specifically note that pretermission arguments are frequently raised by DHS and then adjudicated by IJs under EOIR’s framework. The third-country removal ruling matters here because it reinforces the core due-process principle that the government cannot bypass meaningful process where removal itself forecloses the ability to raise protection claims tied to the destination—exactly the kind of “process-after-the-fact” logic that pretermission, if overused or misapplied, can mirror in the courtroom context.
Practical implications for immigrants, counsel, and the courts
For individuals at risk of third-country removal, the ruling strengthens arguments that DHS must provide clear notice of the destination and a realistic opportunity to raise fear-based claims before removal occurs, especially where the destination country is not the country of nationality or the one listed on the removal order. Even with the 15-day stay and likely appeal, the decision spotlights vulnerabilities in DHS’s attempt to rely on vague “assurances” and compressed timelines as a substitute for process.
For asylum seekers in immigration court, the decision also arrives in the same era as aggressive pretermission practices encouraged by EOIR guidance and litigated by DHS through motions. The takeaway for practitioners is not that pretermission disappears—EOIR’s memo and BIA precedent remain in force unless and until changed—but that federal courts are increasingly skeptical of policies that functionally eliminate meaningful opportunities to be heard before life-altering removal decisions are executed. That skepticism can be leveraged in briefing when DHS seeks to short-circuit protection adjudication or when the process offered is more theoretical than real.
Judge Murphy’s ruling is a reminder that, even in high-velocity enforcement environments, due process still means notice plus a meaningful chance to object, before removal happens, not after. And in a system increasingly shaped by DHS motions and EOIR-encouraged pretermission, the decision is also a warning flare: courts may tolerate efficiency, but not at the price of stripping away the procedural safeguards Congress and the Constitution require.