Sixth Circuit Denies Stay of Removal to Ghana, Holding Third-Country Removal Claims Are Likely Foreclosed by the D.V.D. Class Action

The Sixth Circuit has denied an emergency motion to stay the removal of a Nigerian citizen to Ghana, a third country, in a published order. The petitioner was ordered removed to Nigeria in 2013 but granted withholding of removal as to Nigeria. Under DHS's March 2025 policy implementing 8 U.S.C. § 1231(b)(2)(E)(vii), the government may remove a non-citizen to a third country that has provided credible diplomatic assurances without further procedures, and the government said Ghana had done so. The petitioner argued that removal without individualized process violated the INA, the APA, and due process.

The court held that she was unlikely to succeed because her claims are essentially those litigated in the D.V.D. v. DHS nationwide class action, of which she is a member, and absent class members generally cannot relitigate a failed class claim in an individual suit. The court found the irreparable harm evidence in equipoise, since her country conditions evidence was dated or generalized while Ghana's assurances were credible, and held that the government's interest and the public interest in executing a decade-old removal order favored denying the stay under Nken v. Holder.

The full text of Ojukwu v. Lyons can be found here: https://www.opn.ca6.uscourts.gov/opinions.pdf/26a0282p-06.pdf

First Circuit Largely Upholds Nationwide Class Relief Requiring Notice Before Third-Country Removals

The First Circuit has largely affirmed a final judgment obtained by a certified class of noncitizens with final removal orders, holding that DHS's policy of removing class members to "third countries" not named in their removal orders or prior proceedings violates the Administrative Procedure Act because it fails to provide effective notice and a meaningful opportunity to raise fear-of-persecution and fear-of-torture claims regarding the new destination. The class had challenged DHS guidance that permitted removal to a third country with no notice at all where the State Department deemed the receiving country's diplomatic assurances credible, and with as little as twenty-four hours' notice otherwise.

The Court held that the statutory and regulatory scheme governing withholding of removal and CAT protection implicitly requires effective notice and a meaningful opportunity to be heard before any third-country removal, reasoning that the right to avoid removal to a country where one fears persecution or torture means little without advance notice of the actual destination, and invoking the canon of constitutional avoidance to reach that reading. The Court rejected each of DHS's jurisdictional arguments, holding that neither § 1252(g)'s bar on review of decisions to "execute removal orders" nor § 1252(b)(9)'s claim-channeling provision applied, since the class was not challenging its removability or the execution of its removal orders but rather DHS's failure to follow required procedures when redirecting removal to an unnamed third country. The Court also held that its own precedent in Brito v. Garland forecloses any argument that § 1252(f)(1)'s bar on class-wide injunctions extends to declaratory relief or APA vacatur, and it upheld the district court's Rule 23(b)(2) class certification. The Court did, however, vacate the portion of the judgment requiring DHS to first attempt removal to a class member's designated country or country of citizenship before resorting to a third country, holding that none of the four named plaintiffs had standing to raise that particular "sequencing" claim.

The full text of D.V.D. v. U.S. Department of Homeland Security can be found here: https://www.ca1.uscourts.gov/sites/ca1/files/opnfiles/26-1212P-01A.pdf