Due process in exile ignored

On 25 February 2026, the US District Court for the District of Massachusetts issued a sweeping and uncompromising judgment condemning the US government’s policy of deporting immigrants to so-called “third countries” (states with which they have no meaningful connection). In forceful language, Judge Murphy opened the judgment by rejecting the government’s position in stark terms: “The department of homeland security has adopted a policy whereby it may take people and drop them off in parts unknown — in so-called ‘third countries’— and ‘as long as the department doesn’t already know that there’s someone standing there waiting to shoot … that’s fine’. It is not fine, nor is it legal.” The state argued that discretionary executive actions in immigration matters fell beyond judicial review.

The court disagreed emphatically: “It is not within the ‘discretion’ of the executive to exceed the scope of its authority or otherwise violate the law.” At the heart of the ruling was a simple constitutional principle: no “person” within the US may be deprived of life, liberty or property without due process of law. The court found that the liberty interests at stake were profound and that the risk of erroneous deprivation and exposure to torture or persecution was unacceptably high. The case centres on a March 2025 directive titled “Guidance Regarding Third Country Removal”, issued by the secretary of homeland security, Kristi Noem.

Under the policy, individuals could be deported to a third country if that country provided “diplomatic assurances” against torture or persecution. No further procedures were deemed necessary. Authorities would “not affirmatively ask” whether the individual feared removal to the designated country and the notice of removal could be as short as 24 hours.

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In April 2025, a federal court certified a class of individuals at risk under the policy and ordered that they receive written notice of the intended country of removal and a meaningful opportunity to raise claims under the UN Convention Against Torture. Yet the February 2026 judgment records repeated violations of the order. The court found that the government had little interest in the judicial process: the state repeatedly provided misleading or false information; misstated applicable law and jurisprudence; reissued the contested policy despite prior judicial findings and attempted to evade court oversight by using agencies other than the Department of Homeland Security to execute removals.

The US District Court underscored a contradiction in the policy. If individuals are not told where they are being sent or are informed only hours before removal, how can they meaningfully raise fears of persecution or torture specific to that country?

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