A federal district court yesterday issued a temporary restraining order that prevents the government from removing noncitizens to third countries without first providing them notice and an opportunity to argue that they would face persecution in the third country.
The ruling means that the Administration cannot enforce its February 18 directive to remove certain noncitizens to third countries without first providing notice and process. The Administration already filed a notice of appeal to stay the order. (The full docket is here.)
The case, D.V.D. v. U.S. Department of Homeland Security, arose when four noncitizens challenged the Administration's efforts to remove them to third countries–countries other than the country or alternative country of removal designated in their prior immigration proceeding. (For example, one of the four, from Guatemala, alleged that he was previously granted withholding from removal to Guatemala based on his well-founded fear of persecution there, but that the Administration then removed him to Mexico without offering him an opportunity to argue that he faced persecution there, too.)
The plaintiffs alleged that in removing the four (and the class they represent) to third countries without process, the Administration violated statutes that protect individuals from removal to countries where they would face persecution, including the Immigration and Naturalization Act (which protects individuals from removal to any country "if the Attorney General decides that [their] life or freedom would be threatened in that country" on a protected ground) and the Foreign Affairs Reform and Restructuring Act of 1998 (which prevents removal to a country where a person is likely to be tortured); the Due Process Clause; and U.S. treaty obligations.
The Administration argued that the court lacked jurisdiction under federal law that directs final orders of removal to the courts of appeals (not the district courts), and, in any event, that the legal authorities that the plaintiffs cited don't require notice and an opportunity to argue persecution in these cases. (For example, the Administration argues that the INA only requires withholding from removal "if the Attorney General decides," but that the Attorney General didn't decide, and that law doesn't require notice and process.)