154. The Government's Unclean Hands in D.V.D.

The Trump administration's latest request for emergency relief from the Supreme Court hides the government's deeply problematic litigation behavior behind a plausible jurisdictional objection.

Welcome back to “One First,” an (increasingly frequent) newsletter that aims to make the U.S. Supreme Court more accessible to all of us. If you’re not already a subscriber, I hope you’ll consider becoming one (and, if you already are, I hope you’ll consider upgrading to a paid subscription if your circumstances permit):

As I noted in yesterday’s bonus issue, I wanted to write about the Solicitor General’s latest emergency application (its 17th in the first 18 weeks of the Trump administration)—seeking a stay of a preliminary injunction issued by Judge Brian Murphy on the Massachusetts federal district court in D.V.D. v. Department of Homeland Security.

Even though this case has already received a fair amount of media attention, my own sense is that little of that attention has adequately explained exactly what the federal government is asking the justices to do—or why some have accused the Solicitor General of distorting (if not misrepresenting) what’s actually transpired in the district court. Thus, it seemed worth putting together a post that (1) puts the case into its proper legal context; (2) summarizes what’s happened to date; and (3) assesses the government’s claims in light of (1) and (2). With my thanks, as ever, to Alyssa Negvesky for timely and superlative research assistance, that post follows.

---

I. Third-Country Removals and CAT Relief

The basic issue in D.V.D. involves what can be short-formed as “third-country removals,” i.e., when the government seeks to remove a non-citizen to a country other than the one that has been designated in their removal proceeding (which is usually, but not always, their country of origin). The relevant statute is 8 U.S.C. § 1231(b)(2)(E), which lists the different countries that can qualify as “third” countries:

(i) The country from which the alien was admitted to the United States.

(ii) The country in which is located the foreign port from which the alien left for the United States or for a foreign territory contiguous to the United States.

(iii) A country in which the alien resided before the alien entered the country from which the alien entered the United States.

(iv) The country in which the alien was born.

(v) The country that had sovereignty over the alien’s birthplace when the alien was born.

(vi) The country in which the alien's birthplace is located when the alien is ordered removed.

(vii) If impracticable, inadvisable, or impossible to remove the alien to each country described in a previous clause of this subparagraph, another country whose government will accept the alien into that country.

Note this last provision—which gives the government broad discretion to choose any third country, but the plain text of which seems to provide such discretion only as a last resort, when no country in the first six categories are available.

There’s no dispute, at least in D.V.D., that the government has the statutory and constitutional authority in the abstract to remove individuals to third countries. Instead, D.V.D. is about two subsidiary procedural issues—whether, and to what extent, individuals facing removals to third countries are entitled to (1) notice and (2) an opportunity to object to such removals on the basis that they credibly fear torture or other forms of cruel, inhuman, or degrading treatment if removed to that country. (This is usually shorthanded in immigration proceedings as “CAT relief,” after the U.N. Convention Against Torture.)

In the typical removal proceeding, a litigant seeks CAT relief as a basis for objecting to their underlying removal order, perhaps because they are a refugee or asylee who fears persecution if returned to their home country. And so once a final order of removal has been entered, and legal challenges to it have completed, the CAT issue has presumably been resolved. But what makes CAT relief especially sticky in the context of third-country removals is that the individual facing removal may not previously have had any reason (or opportunity) to seek it—since they wouldn’t know, in the context of their original removal proceeding, the identity of each and every “third country” to which they might be removed.

This gap became especially significant early in the Trump administration thanks to two distinct—but related—developments. First, DHS issued a directive instructing its officers to identify individuals who had been released from immigration detention (presumably because there was no obvious country to which they could be removed), and to re-detain them pending removal to a (new) third country. Second, DHS took the position that individuals who had already gone through “ordinary” removal proceedings were not entitled to meaningful notice and an opportunity to reopen those proceedings to seek CAT relief before being removed to a third country.

Those actions, together, prompted the lawsuit in D.V.D.—in which four individual plaintiffs (proceeding pseudonymously) brought suit in the federal district court in Boston on behalf of a putative nationwide class of all individuals with final orders of removal who were potentially subject to third-country removals. The plaintiffs are not challenging third-country removals, as such; their argument is that they’re entitled to (bilingual) notice and a meaningful opportunity to seek CAT relief before they’re removed to third countries.

---

II. The D.V.D. Litigation To Date

A lot has happened since the plaintiffs filed their initial complaint on March 23. In an effort to get to the punchline a bit more quickly, here’s a capsule summary:

1. On March 28, 2025, Judge Murphy held a hearing on whether to issue a temporary restraining order and then orally granted (in part) the TRO, issuing what he characterized as “narrow relief” to preserve the status quo and prevent irreparable harm. Murphy entered a written TRO shortly thereafter, and filed a memorandum explaining the TRO ruling the next day—March 29.

2. The government immediately noticed an appeal of the TRO, but the First Circuit denied a stay on April 7. Meanwhile, further briefing and a hearing on the preliminary injunction and class certification proceeded in the district court.

3. On April 18, Judge Murphy granted the plaintiffs’ motion for a preliminary injunction and certified the class. A 48-page memorandum and order accompanied the preliminary injunction, setting forth the class-wide relief and the rationale.

4. On April 30, Judge Murphy amended the April 18 injunction to close a potential loophole that had arisen—clarifying that DHS could not evade the injunction by outsourcing removals to another agency (in response to media reports that the Department of Defense had removed detainees from Guantánamo—without DHS). Of note, this is the injunction that the government is asking the Supreme Court to stay. The First Circuit denied the government’s request for a stay of this injunction on May 16—a denial that helped to precipitate the Solicitor General’s current application for emergency relief from the Supreme Court. To this point, then, this looks like a fairly typical case, at least procedurally. But then things started to get … awkward.

5. In early May, as the injunction remained in effect, reports surfaced that DHS was planning imminent removals of class members to various third countries (Libya, Saudi Arabia, and South Sudan) despite the court’s order. In response, plaintiffs moved for emergency clarification or enforcement.

6. On May 7, Judge Murphy issued an order (construing the motion as one for clarification) confirming that if such third-country removals were happening, they “would clearly violate this Court’s Order” (i.e., the April 18/30 preliminary injunction). In other words, the protections of the injunction applied fully to any third-country removal, including those countries (like Libya or Saudi Arabia) not specifically discussed previously.

7. On May 20, plaintiffs alerted the court that a plane carrying roughly a dozen class members was en route to South Sudan—apparently an attempt to remove them to a new third country despite the injunction.

8. On the same day, Judge Murphy convened an emergency hearing and issued an emergency custody order for DHS to “maintain custody and control” of any class members being removed to South Sudan or any other third country, so as to ensure they could be returned if the removals were found unlawful. The court ordered DHS to halt any final transfer of custody.

   1. In practical terms, DHS was expected to keep these individuals within U.S. custody or control even if they had left U.S. soil (as it has apparently done, in Djibouti).

   2. Judge Murphy further required DHS to appear at a follow-up hearing the next day (May 21) with detailed information: the government was to provide the names of all affected individuals and disclose “(1) the time and manner of notice each individual received as to their third-country removal; and (2) what opportunity each individual had to raise a fear-based claim” before being sent abroad.

   3. The clear import was to gather evidence on whether DHS had complied with the preliminary injunction’s notice and opportunity requirements for those individuals.

9. On May 21, Judge Murphy found that the government had violated the preliminary injunction by failing to afford six class members any meaningful opportunity to seek CAT protection before removing them to South Sudan. He issued two related orders:

   1. a “Memorandum and Order on Remedy for Violation of Preliminary Injunction” clarifying what the preliminary injunction required and specifying relief for the violation; and

   2. a short order denying the government’s oral request to join the Department of Defense as a necessary defendant, which the court deemed unnecessary given its injunction already bound all those acting in concert with DHS.

   3. The court stopped short of ordering the immediate return of the six removed individuals, and instead fashioned a process (largely suggested by the government at the hearing—more on this shortly) to provide them with belated CAT screening with safeguards approximating those they would have received in the U.S.

10. The government promptly moved for reconsideration of the May 21 orders (and sought a stay, likely in aid of an appeal or forthcoming Supreme Court application).

11. On May 26, Judge Murphy issued a “Memorandum and Order on Defendants’ Motions for Reconsideration and Stay,” denying the requested relief. In it, he strongly criticized the government’s conduct and arguments, noting that DHS had “manufactur[ed] the very chaos they decry” by racing to remove class members in defiance of the injunction.

12. Finally, the D.V.D. litigation has also witnessed some truly bizarre behavior by the government with respect to one of the named plaintiffs—identified as O.C.G. Specifically, O.C.G. was removed to Mexico (before Judge Murphy entered his TRO) based on the government’s claim that O.C.G. had stated that he did not fear being sent to Mexico. But the government has since filed a “notice of errata” suggesting that it has been unable to identify any officer who asked O.C.G. whether he feared being removed to Mexico—or who had even informed O.C.G. that he faced imminent removal to Mexico. On May 23, Judge Murphy ordered the government to take all immediate steps to facilitate O.C.G.’s return—which the government is apparently in the process of doing.

Thus, there are two very different things going on in the D.V.D. case. At a surface level, the case is a significant but relatively typical dispute over the plaintiffs’ procedural claims—that they’re entitled to notice and an opportunity to seek CAT relief before being removed to third countries (where the government’s principal legal objection, as we’ll see, is jurisdictional). But the government’s behavior has not only underscored the stakes—including why that notice and opportunity to seek CAT relief are so critical; it has ratcheted up the context in which those procedural issues are being decided by removing at least six class members in direct violation of Judge Murphy’s order and only then asking the Supreme Court for emergency relief. It’s against that backdrop that we must assess the Solicitor General’s application.

---

III. The Solicitor General’s Emergency Application

If you quickly perused the government’s emergency application to the Supreme Court in D.V.D., you’d be missing a lot of this context. As the government tells it, rather than moving cautiously in dealing with the government’s abysmal litigation behavior, Judge Murphy usurped statutory authority; made-up a series of lengthy new procedures; and continually moved the goalposts, all while directly interfering in national security and foreign relations to an unprecedented degree.

To my mind, there are three basic points that the application gets right, but a lot more that it gets (quite badly) wrong.

Starting with what it gets right:

1. The net effect of Judge Murphy’s April 18 injunction (as modified on April 30) is to create the possibility of a 25-day delay before individuals can be removed to third countries.

2. There is a colorable argument (albeit one that I don’t think is self-evident) that 8 U.S.C. § 1252(f)(1) divested Judge Murphy of the power to issue class-wide injunctive relief requiring notice and an opportunity to seek CAT relief.¹

3. The district court’s mid-flight intervention was “extraordinary,” as were the court’s orders to the government to effectively maintain custody of the six class members at issue until and unless they’ve received the notice and opportunity to seek CAT relief required by the original injunction.

In the abstract, then, the government has a non-laughable case that it might win on the merits and that it’s being harmed in the interim.

But in context, some of the arguments advanced by the Solicitor General border on spurious—and seem designed to capitalize upon readers who are not fully familiar with the record of the proceedings in the district court (or how CAT relief works in “ordinary” removal proceedings). For example:

1. The claim that Judge Murphy “invented” procedures for notice and resolving entitlement to CAT relief is just wrong. Murphy’s actions closely mirror (and, indeed, are based upon) existing regulations for reinstated orders (8 C.F.R. § 208.31) and motions practice (8 U.S.C. § 1229(c)(7)). The only genuine innovation is the ten-day minimum between notice and removal, a period the district court adopted only after DHS refused to propose any alternative that would make the required notice meaningful. Calling the framework “wholly invented” ignores both that it is derivative of DHS’s own regulatory scheme and that the most visible departure from that scheme was prompted by DHS’s own behavior.

2. Although the application acts as if the 25-day delay is mandatory in all cases, it fails to account for the fact that the only mandate is a 10-day notice period. The 15-day extension kicks in only after a negative reasonable-fear-of-torture finding—and only if the non-citizen elects to file a motion to reopen. If the non-citizen states that they have no fear of being removed to the third country, or if DHS grants CAT protection, the proceeding can conclude much more swiftly.

3. The claim that Judge Murphy kept “moving the goalposts” is more than a little galling given the government’s own behavior. Clarifying that the injunction bars use of Department of Defense resources, and not just DHS resources, is not moving the goalposts. Reiterating that Libya and Saudi Arabia are covered by the April 18 injunction like any other third country is not moving the goalposts. And holding that the government violated the 10-day notice requirement in the case of the six class members being removed to South Sudan isn’t moving the goalposts; it’s throwing a flag.

4. The government also claims that Judge Murphy forced DHS either to repatriate the six deportees or to detain them at a U.S. base abroad. The transcript shows that DHS counsel asked to complete reasonable-fear processing overseas so as to avoid return; Judge Murphy adopted that proposal verbatim—and allowed, but did not compel, repatriation. Claiming the court “imposed” onerous overseas interviews omits the fact that this was the lesser of two evils—and the one that DHS itself asked for.

5. Finally, the government suggests that Judge Murphy has claimed the power to order the return of any class member. But as noted above, exactly one person has been ordered returned—O.C.G. And only after DHS admitted that it had removed him without any notice or fear inquiry and after discovery showed that its earlier declaration was completely bogus. The government’s brief implies that the district court created an open-ended power to recall anyone removed to a third country, but the record shows little more than a fact-specific equitable remedy tied to government misconduct—one with which the government is apparently complying.

---

IV. Taking Stock

This is why, in my view, it’s so important to understand the full contours of what’s happening in the D.V.D. case. The government has a viable argument for why it might have a chance at winning on the merits of its jurisdictional objection—although, again, I think the First Circuit has raised some plausible grounds on which Aleman Gonzalez could be distinguished. But the Solicitor General’s application grossly overstates what the district court did, and repeatedly refuses to acknowledge or account for the extent to which the government’s own behavior caused the foreign relations and judicial interference concerns on which the application so heavily relies. Had the government simply appealed Judge Murphy’s order through normal channels without all of its subsequent behavior, that would be one thing. But for the Supreme Court to turn a blind eye to that behavior—or to the Solicitor General’s whitewashing of it—would be something else altogether.

Equitable relief, we are often told, requires those seeking it to “come into equity with clean hands.” Even to those who are more persuaded by the government’s jurisdictional argument in D.V.D. than I am, it seems like the government’s hands are far from clean—not just in general, in this case, but in precipitating much of the very harm that it now decries as irreparable. And even if that’s not enough (to say nothing of the imbalance of irreparable harms in these cases) to persuade a majority of the justices to deny the Trump administration’s latest emergency application, it should hopefully at least lead some of them to admonish the government for the liberties it took in the district court—and the liberties its application now takes with the facts.² Otherwise, what’s to stop the government from continuing to take those liberties going forward?

***

I hope you’ve found this summary useful—and, if so, I hope you’ll consider sharing it:

We’ll be back Monday with our next “regular” edition of “One First.” If you’re not already a subscriber, please consider signing up. And if you’re not yet a paid subscriber, I hope you’ll consider becoming one if your circumstances permit. Indeed, your support makes it that much more possible to put out unscheduled issues on late-breaking topics like this one:

Either way, I hope you all have a great weekend—except for the Rockies.

Stay safe out there.

1. The Supreme Court grappled with this very question three years ago in Garland v. Aleman Gonzalez. Although a 6-3 majority held in that case that § 1252(f)(1) does generally prohibit class-wide injunctive relief against the operation of removal orders, there are at least some arguments that such a jurisdictional bar wouldn’t apply here—as the First Circuit explained in denying the government’s stay on May 16.

2. Justice Jackson has ordered the plaintiffs to respond to the government’s application by 4 p.m. (ET) next Wednesday, June 4.