Two Important Immigration Enforcement Developments: DHS Extends “Mass Influx” Finding and First Circuit Addresses Third-Country Deportations
Two Important Immigration Enforcement Developments: DHS Extends “Mass Influx” Finding and First Circuit Addresses Third-Country Deportations
Two significant immigration developments occurred within days of one another in September 2026. One involves the federal government’s continued effort to expand cooperation with state and local law enforcement. The other concerns the procedures the Department of Homeland Security must follow when attempting to deport a person to a country that was not previously identified as the destination in that person’s removal proceedings.
Although these developments involve very different legal authorities, both may have immediate consequences for people with final removal orders, prior grants of withholding of removal or protection under the Convention Against Torture, and other unresolved immigration problems.
Understanding what these developments actually mean—and what they do not mean—is especially important.
DHS Extends Its “Mass Influx of Aliens” Finding for Another 180 Days
On September 21, 2026, the Department of Homeland Security published a new Federal Register notice extending its formal “Finding of Mass Influx of Aliens” for another 180 days.
The finding dates back to January 23, 2025 and has been extended several times. The September 2026 notice states that DHS continues to find that an actual or imminent mass influx is occurring at the southern border and that the circumstances warrant continued federal action. The Secretary also formally requested assistance from state and local governments in all 50 states.
DHS cited several factors in support of the extension, including border encounters, detention capacity, interior immigration enforcement demands and the number of people with final removal orders on ICE’s non-detained docket. According to the notice, ICE reported a detention population of 67,022 as of August 12, 2026, against a stated maximum capacity of 80,700. DHS also reported more than 2.1 million people with final orders of removal on ICE’s non-detained docket as of August 11. These figures are DHS’s own administrative figures and should be understood in that context.
The new finding takes effect immediately and lasts for 180 days unless DHS terminates it earlier because circumstances change.
What Does a “Mass Influx” Finding Actually Do?
Federal immigration law contains a special provision for circumstances involving an actual or imminent mass influx near a U.S. land border or coastline.
Under 8 U.S.C. § 1103(a)(10), state or local law-enforcement officers may, with the consent of their agency leadership, be authorized to perform certain functions normally exercised by federal immigration officers.
That is important authority—but there is an equally important limitation.
The September 21 notice does not automatically transform every police officer, sheriff’s deputy or state trooper in the United States into an immigration officer.
Federal regulations contemplate additional authorization, agency consent and operational requirements. They also generally limit the exercise of this special immigration authority to the designated geographic area and duration of the declared mass-influx event, with certain exceptions such as transporting or guarding people already in custody.
So a traffic stop in New York, California or Illinois does not suddenly become an ICE arrest merely because DHS published this notice.
Nevertheless, the announcement is relevant because DHS expressly requested assistance from state and local governments in all 50 states, and it comes during a broader period of increasing federal-state cooperation in immigration enforcement.
Do Not Confuse the Mass-Influx Authority With the 287(g) Program
There is another, separate mechanism through which local agencies can obtain immigration-enforcement authority: the 287(g) program.
Through 287(g), ICE enters into agreements with participating state and local law-enforcement agencies. Depending on the model used, trained officers may identify potentially removable individuals in local custody, execute certain immigration warrants, or exercise limited immigration authority while carrying out ordinary police duties under ICE supervision. ICE states that participating agencies must enter into an agreement and their officers receive specialized training.
As context for how much these partnerships had already expanded, DHS reported in September 2025 that it had reached more than 1,000 287(g) agreements involving agencies in 40 states. That number was reported a year before the September 2026 mass-influx extension and should not be treated as a current count, but it demonstrates that cooperation between ICE and local law enforcement was already substantial before this latest notice.
For immigrants, therefore, the practical consequences of contact with police can vary dramatically by jurisdiction.
A person who is undocumented, has a final removal order, previously missed immigration court, has an outstanding immigration warrant, or has some other enforcement vulnerability should not assume that an encounter with local law enforcement will remain completely separate from the federal immigration system.
At the same time, people should not assume that every police officer has federal immigration authority. The legal authority of a particular department depends on the jurisdiction, the type of agreement in place, applicable state and federal law, and the circumstances of the encounter.
That distinction matters.
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First Circuit Issues Major Decision in D.V.D. v. DHS Concerning Deportation to Third Countries
A second development occurred three days before the new DHS notice.
On September 18, 2026, the U.S. Court of Appeals for the First Circuit issued its published decision in D.V.D. v. U.S. Department of Homeland Security, No. 26-1212.
The First Circuit hears federal appeals originating in Maine, Massachusetts, New Hampshire, Rhode Island and Puerto Rico.
The case involves people who already had final orders of removal but whom DHS sought to deport to third countries—countries that had not been designated in their removal orders and had not previously been identified in writing during their immigration proceedings as possible destinations.
This distinction is extremely important.
A final order of removal does not necessarily mean that DHS can send a person anywhere in the world without regard to existing protections against persecution or torture.
What Is a Third-Country Removal?
Consider a hypothetical example.
An individual from Country A is placed into removal proceedings. An Immigration Judge ultimately grants withholding of removal to Country A because the evidence establishes that the person’s life or freedom would be threatened there.
That protection generally prevents the United States from removing the individual to Country A.
It does not necessarily cancel the underlying removal order or guarantee that the person can remain permanently in the United States.
DHS may investigate whether another country will accept the person.
That second destination is what is commonly referred to in this litigation as a third country.
The dispute in D.V.D. was not simply over whether third-country removal can ever occur. In fact, the class did not claim that all such removals are illegal.
Instead, the central question was whether DHS can select a previously unidentified country and remove someone there without effective notice and without giving that person a meaningful chance to explain why he or she fears persecution or torture in that new destination.
What the First Circuit Actually Held
The First Circuit largely affirmed the district court on this issue.
The court concluded that the relevant statutory and regulatory framework requires effective notice of the intended third-country destination and a meaningful opportunity to present a fear-based claim before removal occurs.
For claims involving persecution, the court relied heavily on INA § 241(b)(3), codified at 8 U.S.C. § 1231(b)(3), together with related regulations.
For torture claims, the First Circuit separately concluded that the Foreign Affairs Reform and Restructuring Act, the Convention Against Torture framework and implementing regulations also require effective notice and a meaningful opportunity to present a fear-of-torture claim before DHS removes someone to the proposed third country.
This is an important distinction from saying simply that the Constitution creates the entire right.
The district court had addressed constitutional due-process principles. The First Circuit was able to resolve the core dispute through statutory and regulatory interpretation, using constitutional-avoidance principles, and expressly stated that it did not ultimately need to decide whether the challenged guidance independently violated the Fifth Amendment.
The court also upheld the setting aside of the challenged DHS guidance under the Administrative Procedure Act, because the guidance permitted certain third-country removals without the required notice and meaningful opportunity to assert fear-based claims.
One Part of the Lower Court’s Decision Did Not Survive
There is an important limitation that should not be overlooked.
The district court had also declared that DHS must follow a particular sequence—essentially requiring the government first to pursue removal to certain designated countries or countries of nationality before moving on to other third countries.
The First Circuit vacated those portions of the judgment, holding that the named plaintiffs lacked Article III standing to litigate that particular sequencing claim.
The appellate court then stated that it otherwise affirmed the final judgment.
That means D.V.D. should not be described as a ruling that prohibits DHS from using third countries or as a ruling requiring DHS to exhaust every possible country in a specific sequence before considering another destination.
Its strongest surviving principle is different:
When DHS proposes a qualifying third-country removal, the affected individual must receive effective notice of that destination and a meaningful opportunity to raise applicable fears of persecution or torture there before removal.
The Court Did Not Define Every Detail of the Required Hearing
Another point deserves attention.
The First Circuit expressly declined to decide whether every individual who raises a fear claim is necessarily entitled to a full evidentiary hearing before removal. The court said that question was not yet ripe or sufficiently developed and directed that disputes about the exact meaning of the final judgment should initially be addressed in the district court.
So practitioners should avoid overstating the decision.
D.V.D. establishes important procedural protections, but further litigation may determine exactly what constitutes an adequate “meaningful opportunity” in different factual circumstances.
Can D.V.D. Be Used Outside the First Circuit?
The answer requires some nuance.
A published First Circuit opinion is binding appellate precedent within the First Circuit. A federal district judge in California, Texas, Florida, Utah or another circuit is not bound by First Circuit precedent in the same way that a Massachusetts federal judge is.
But lawyers elsewhere can still cite the decision as persuasive federal appellate authority, particularly because the opinion contains detailed analysis of INA § 241(b)(3), CAT/FARRA protections, the APA and the regulations governing fear claims.
There is also another important aspect of the case: the underlying litigation involves a certified class defined by the circumstances of the removal order and proposed third-country destination, rather than simply by residence within Massachusetts. The class definition covers individuals with specified types of final removal orders whom DHS deported or proposes to deport, beginning February 18, 2025, to a country that was neither previously designated nor identified in writing during their prior proceedings.
That makes geography more complicated than simply asking, “Does the person live in the First Circuit?”
Attorneys outside the First Circuit are already invoking D.V.D. in emergency third-country litigation. For example, a September 18 filing in a federal habeas case involving proposed removal to Rwanda attached the new First Circuit decision in support of an emergency request for third-country procedural protections. That demonstrates how quickly litigants are attempting to use the opinion, although a party’s citation of D.V.D. should not be confused with a separate court already adopting every part of its reasoning.
Why This Is Especially Important for People Who Already Have Withholding or CAT Protection
Some of the people most affected may be individuals who previously fought removal and won protection from return to a particular country.
Imagine that an Immigration Judge determined years ago that returning someone to their home country would expose that person to persecution or torture.
Later, ICE detains the person again and announces plans to deport them somewhere else.
The existence of protection against Country A does not automatically establish protection against Countries B, C or D.
But neither should the government be able to make the new country effectively impossible to challenge by revealing the destination only when removal is about to occur.
That is at the heart of the First Circuit’s reasoning: protection against persecution or torture has little practical value if a person receives no meaningful advance notice of where the government intends to send them.
There is an additional concern known as chain refoulement. This occurs when a person is sent to one country and that country subsequently transfers or deports the person to the very country where the individual fears persecution or torture. The First Circuit’s opinion discusses this problem in describing the litigation, including allegations concerning one of the named plaintiffs.
For that reason, analyzing a proposed third-country removal may require looking beyond the immediate destination. Counsel may also need to examine whether that country’s laws or practices create a realistic risk that the person will later be transferred to the original country of persecution.
What Should Someone Do if ICE Mentions a Third Country?
Time can become critical very quickly. A person who learns that ICE is considering a new removal destination should contact qualified immigration counsel immediately. Depending on the facts, useful steps may include:
Get the exact country in writing. Do not rely solely on a vague statement that ICE is “working on removal.”
Immediately document any fear of that country. Counsel should consider notifying DHS or ICE in writing rather than waiting until transportation begins.
Collect country-condition evidence quickly. This can include State Department materials, human-rights reports, credible news reporting, expert evidence and documentation concerning the individual’s particular circumstances.
Identify individual risk factors. Nationality, ethnicity, religion, political activity, sexual orientation, prior detention, family relationships, criminal history, medical vulnerability and other facts can change the analysis dramatically.
Evaluate CAT protection separately from withholding. A person who cannot satisfy every requirement for withholding of removal may still have a legally distinct claim involving the likelihood of torture.
Consider chain-refoulement risk. Counsel should investigate whether the proposed receiving country could subsequently return the person to a country where persecution or torture is feared.
Preserve every document. Notices from ICE, reporting instructions, travel documents, emails, text messages and statements identifying a possible destination may become important evidence.
If removal appears imminent, investigate emergency federal-court options immediately. Depending on jurisdiction and procedural posture, counsel may consider habeas relief, temporary restraining relief, a stay request or another appropriate mechanism. The correct vehicle is highly case-specific.
D.V.D. May Also Matter in Some Detention Cases
There is another possible implication, although it should be presented carefully.
Under Zadvydas v. Davis, the Supreme Court interpreted the post-removal-order detention statute to contain limits where there is no significant likelihood of removal in the reasonably foreseeable future. The Court recognized six months as a presumptively reasonable detention period, after which a person who provides good reason to believe removal is not significantly likely in the reasonably foreseeable future can require the government to respond with evidence. Six months does not create an automatic right to release.
Suppose DHS argues that continued detention is justified because deportation to a third country is imminent.
If DHS has not yet identified a lawful destination, provided required notice, or completed procedures necessary to address a genuine fear claim regarding that country, counsel may examine whether those circumstances affect the government’s assertion that removal is actually reasonably foreseeable.
That would be a case-specific habeas argument, not an automatic consequence of D.V.D., but it is an issue worth examining in prolonged post-order detention cases.
The Procedural Status Should Be Checked Before Any Emergency Filing
Because D.V.D. was decided only on September 18, 2026, attorneys should verify the current appellate docket before representing that any particular remedy is presently enforceable.
Mandate timing, existing stays, rehearing requests, Supreme Court proceedings, subsequent district-court orders, or replacement DHS guidance can affect the operative status of an appellate decision.
The September 18 opinion itself is clear on the merits: the First Circuit vacated the two sequencing declarations but otherwise affirmed the final judgment, including the central notice-and-fear-process conclusions and the APA treatment of the challenged guidance.
But in an emergency removal case, today’s docket matters as much as last week’s opinion.
The Bottom Line
September 2026 illustrates two different directions in U.S. immigration enforcement.
On one side, DHS has renewed its mass-influx finding for another 180 days and formally requested cooperation from state and local governments nationwide. That action does not automatically give every police officer immigration powers, but it provides a legal framework through which additional state and local assistance may be authorized and comes against the backdrop of existing federal-local enforcement programs.
On the other side, D.V.D. v. DHS places meaningful procedural limits on how the government may carry out certain third-country removals. The federal government retains authority to pursue lawful removal to third countries in appropriate cases, but the First Circuit concluded that the challenged DHS procedures could not bypass statutory and regulatory protections against persecution and torture by denying affected individuals effective notice and a meaningful opportunity to raise their fears.
For individuals with final removal orders, withholding of removal, CAT protection, prior deportation cases or other serious immigration-enforcement concerns, these developments make advance planning particularly important.
Waiting until ICE has scheduled transportation—or until a person is already in custody—can leave very little time to investigate the proposed country, obtain evidence and determine whether emergency federal-court intervention is available.
If ICE identifies a new country of removal, the name of that country matters. The timing of the notice matters. The person’s fear of that particular country matters. And under D.V.D., the opportunity to present that fear before removal matters as well.
This article is for general informational purposes and does not constitute legal advice. Immigration and federal-court remedies depend heavily on the individual’s immigration history, detention status, jurisdiction and the current procedural status of pending litigation.
