Deported Without Warning: The Fight for Due Process

By Chris Rickerd, National Immigration Litigation Alliance

As the Trump-Vance administration passes its symbolic 100-day mark, the National Immigration Litigation Alliance (NILA) is counsel on one of the most consequential lawsuits against the federal government’s immigration-enforcement actions.  Alongside co-counsel Northwest Immigrant Rights Project and Human Rights First, NILA represents named plaintiffs and a certified class in a case captioned D.V.D. v. DHS, filed in the District of Massachusetts.  

The district court recently encapsulated plaintiffs’ claims as presenting a “simple question”: “[B]efore the United States forcibly sends someone to a country other than their country of origin, must that person be told where they are going and be given a chance to tell the United States that they might be killed if sent there?”  After the court granted relief to the class on April 18, 2025, the government immediately appealed on an emergency basis to the First Circuit, where the case is now pending.

Similar to parallel cases challenging the administration’s immigration and other policies – most notably litigation against the removal of noncitizens under the Alien Enemies Act  – D.V.D. boils down to an attempt by federal officials to bypass venerable requirements of due process (see coverage of several other immigration-litigation topics in NILA’s Litigation Navigator).  The classic formulation of “notice and an opportunity to be heard” is what the four named plaintiffs are seeking, including one, O.C.G., who was already deported to Mexico and then returned to Guatemala, his country of origin from which the United States had granted him protection.

The divergence between plaintiffs’ claims and the government’s position is stark, far more than a disagreement about details.  In the court’s words, “Defendants have taken the position that there is no due process entitled to any [noncitizen], under any method of removal, prior to removal to a third country regardless of any potentiality that such [a noncitizen] will be tortured or murdered upon arrival.”  Notably, federal government representations to other courts, including to the Supreme Court by this very administration, have acknowledged due-process requirements of notice and the opportunity to seek review before removal from the United States, but in D.V.D. the government is attempting to distinguish those prior pronouncements.

Instead, both during oral argument and in a new policy promulgated by the Department of Homeland Security (DHS), the government has made novel claims about its responsibilities relative to those of immigrants facing deportation.  In the district court, Defendants proposed that noncitizens subject to deportation are responsible for predicting all possible countries DHS might elect to designate for deportation.  Practically speaking, as the court’s order stated, “[l]isting all the countries in the world as to which an individual might have a reasonable fear is … impractical: doing so would potentially require, for example, a person with a same-sex sexual orientation to list, at least, all 64 countries where such an orientation is illegal such that the individual fears torture.”  

Separately, in a weekend gambit to undermine the district court’s grant of injunctive relief, DHS issued a new third-country-deportation policy that focuses on blanket “diplomatic assurances” from third countries that they will not torture persons sent there by the United States.  The court found several flaws in this policy, namely that current law, contrary to the new policy, requires meaningful notice in a language a person understands of any newly designated country for removal as well as individualized not categorical assessments of such assurances; that diplomatic assurances do not protect against torture by non-state-actors or “chain refoulement” by which a third country returns someone like plaintiff O.C.G. to their country of origin; and that the policy lacks any review of DHS’s determinations. 

While the D.V.D. litigation is far from over, at least two lessons have already emerged.  First, the legal positions taken by the Department of Justice on behalf of DHS are not only inconsistent with past (and parallel) litigation, but they are also radical.  The district court took care to memorialize one exchange: “It simply cannot be, as Defendants contend, that the Government can ‘decide right now that someone who is in [ ] custody is getting deported to a third country, give them no notice and no opportunity to say, “I will be killed the moment I arrive there,” and, as long as the [Government] doesn’t already know that there’s someone standing there waiting to shoot him, that’s [ ] fine.’”  Government counsel responded to this scenario by saying: “In short, yes.”

More generally, the second lesson is that well before this administration’s extreme posture, governments of both political parties have resisted transparency and due process – two hallmarks of NILA’s mission – throughout the deportation system.  Instead of proactive clarity from DHS or production of unclassified documents requested by the public, Freedom of Information Act litigation is necessary to obtain even basic details of important policy decisions like how the government conducts third-party deportations.  And administrations past and present have tried repeatedly to short-circuit due process in asylum and other proceedings, rather than increasing resources to meet the challenge of reducing mistakes in life-or-death adjudications.  Ultimately, as D.V.D. demonstrates, it is fairer, more efficient, and less costly to provide up-front due process rather than to fight tooth and nail against noncitizens’ proverbial “day in court.”