Dia v. Raycraft et al

UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION
AMADOU DIA,
Petitioner,
v.
KEVIN RAYCRAFT and
MARKWAYNE MULLIN,
Respondents.
___________________________________/
Case No. 1:26-cv-1054
Hon. Hala Y. Jarbou
OPINION
On April 14, this Court entered a temporary restraining order prohibiting Respondents, the
director of the Detroit field office of US Immigration and Customs Enforcement (ICE) and the
acting secretary of the Department of Homeland Security (DHS), from removing Petitioner
Amadou Dia to Ghana or any other country not named in his final order of removal until Dia is
given an opportunity to argue to an immigration judge that he would be tortured or persecuted if
deported to that country. (ECF No. 15.) The Court also ordered Respondents to show cause why
the TRO should not be converted to a preliminary injunction. Before the Court is Respondents’
brief opposing conversion, as well as Dia’s reply in support. For the reasons set out below, the
Court will enter a preliminary injunction preserving Dia’s right to assert fear-based claims before
an immigration judge while this litigation is pending.
I. 	BACKGROUND
Amadou Dia is a Senegalese national admitted to the United States on a nonimmigrant visa
in 2006. (Resp. to Pet. 2, ECF No. 4.) In 2007, Dia applied for asylum or withholding of removal.
(Id.) His application was referred to an immigration judge, who in 2012 denied the asylum petition
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and ordered Dia’s removal to Senegal or Gabon but granted him withholding of removal from
Senegal. (Id.) No attempt to enforce the removal order appears to have been made until September
17, 2025, when Dia was detained without bond in anticipation of his removal to Gabon. (Id.; Mot.
for TRO 1, ECF No. 7.) Gabon refused to issue travel documents for Dia, so ICE began exploring
other countries to remove Dia to. (Resp. to Pet. 3.) On March 25, 2026, ICE was informed that
the Republic of Ghana would accept Dia without a travel document and that the Ghanaian
government had assured the United States that noncitizens removed to its jurisdiction would not
be persecuted or tortured. 	(Resp. to Pet. 4.) 	The parties agree that pursuant to a March 2025
guidance document issued by DHS (see Memorandum from Kristi Noem, Sec’y of Homeland Sec.
(Mar. 30, 2025), ECF No. 9-1 (“March Guidance”)), Dia has not been afforded the opportunity to
assert that he would be persecuted or tortured if removed to Ghana. (See Reply in Supp. of TRO
2–3, ECF No. 13; Suppl. Resp. to Mot. for TRO 4, ECF No. 14.)
On March 30, 2026, Dia filed a petition for habeas corpus with this Court seeking his
immediate release from detention on the ground that his removal is not reasonably foreseeable.
On April 6, he sought a temporary restraining order to prevent his imminent removal to Ghana on
the ground that such a removal would be inconsistent with section 241 of the Immigration and
Nationality Act (INA), 8 U.S.C. § 1231, as well as the regulations giving domestic effect to the
Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment
(CAT), opened for signature Feb. 4, 1985, 1465 U.N.T.S. 85. 	The Court entered the TRO and
ordered the parties to submit additional briefing on whether the TRO should be converted to a
preliminary injunction.
II. 	LEGAL STANDARD
Preliminary relief is an exceptional remedy that a court may grant only when it is necessary
to preserve the status quo before a full adjudication on the merits. The four considerations that
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guide the decision to enter a preliminary injunction are the likelihood that the movant will succeed
on the merits of their claims, the risk that the movant will be irreparably harmed absent an
injunction, the balance of the equities between the movant and the nonmovant, and the effect of
an injunction on the public interest. Higuchi Int’l Corp. v. Autoliv ASP, Inc., 103 F.4th 400, 404
(6th Cir. 2024). “In constitutional cases, the first factor is typically dispositive.” Vitolo v. Guzman,
999 F.3d 353, 360 (6th Cir. 2021).
III. 	ANALYSIS
The government offers three grounds for dissolving the TRO and allowing Dia’s removal
to go forward. First, it contends this Court lacks jurisdiction over Dia’s claims. Second, it argues
the case should be transferred to the District of Massachusetts because Dia’s claims fall within the
scope of the relief he was granted as a member of the class certified in D.V.D. v. U.S. Department
of Homeland Security, No. CV 25-10676, 2026 WL 521557 (D. Mass. Feb. 25, 2026). Third, it
avers that Dia’s claims fail on the merits because neither the INA nor the CAT nor the Constitution
dictate that Dia be afforded the opportunity to raise fear-based claims before his removal to a third
country.1 These arguments do not significantly differ from those offered in opposition to Dia’s
TRO application, but the Court has reevaluated them in light of the parties’ more fulsome briefing
in the interim. The Court remains unpersuaded by the government’s objections, so it will convert
the TRO into a preliminary injunction.
A. 	Jurisdiction
The Court begins, as it must, by assuring itself of its jurisdiction. See In re 2016 Primary
Election, 836 F.3d 584, 587 (6th Cir. 2016). 	The government renews its argument that the
1 Removal to a country not listed in a final order of removal is commonly referred to as third-country removal, since
the removal order must “identify a country, or countries in the alternative, to which the alien’s removal may in the
first instance be made.” 8 C.F.R. § 1240.12(d). If DHS is “unable” to remove the noncitizen to one of those countries,
it can attempt to remove the noncitizen to another country. Id.
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jurisdiction-stripping provisions in the INA deprive this Court of the authority to entertain Dia’s
procedural claim. The Court once more finds that the INA erects no such bar.
The relevant provisions are subsections (a)(5), (b)(9), and (g) of 8 U.S.C. § 1252.
Subsections (a)(5) and (b)(9) together render a petition for a court of appeals to review a final order
of removal the “sole and exclusive means,” id. § 1252(a)(5), of obtaining a judicial pronouncement
on such an order or on “any action taken or proceeding brought to remove an alien from the United
States,” id. § 1252(b)(9). 	Subsection (g) reinforces subsections (a)(5) and (b)(9) by expressly
prohibiting courts from hearing claims arising from the “decision or action . . . to commence
proceedings, adjudicate cases, or execute removal orders against any alien” except as provided in
§ 1252.
Nothing in § 1252 guarantees that every immigration-related issue may be reviewed
through the scheme established by subsections (a)(5) and (b)(9). Section 1252(g) in particular is
susceptible of a reading that would foreclose any review of the commencement, adjudication, or
execution of removal proceedings if the relevant actions or decisions could not be raised in a
petition for review by the appropriate court of appeals. 	Nevertheless, the Court concludes that
subsection (g), properly interpreted, does not prevent this Court from entertaining Dia’s claims.
Start with the text. The ordinary meaning of the phrase “execute removal orders” would
seem to exclude from its coverage removal to a country not mentioned in the order. To “execute”
means to “do what is provided or required by” something.2 Although Dia’s removal is “required
by” the final order, his expulsion to Ghana is not. 	Additionally, Dia expressly disclaims any
challenge to the validity of the removal order or DHS’s authority to remove him. 	His sole
grievance is the agency’s failure to provide him with any sort of process for raising fear-based
2 “Execute,” Merriam-Webster, https://www.merriam-webster.com/dictionary/execute [https://perma.cc/7KHX-N926].
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claims in response to the government’s designation of Ghana as his country of removal. 	As a
textual matter, then, § 1252(g) does not clearly preclude this Court from adjudicating Dia’s claims.
Judicial interpretation of subsection (g) confirms what its text suggests. 	The Supreme
Court has only had occasion to pronounce on the subsection’s meaning in one case, Reno v.
American-Arab Anti-Discrimination Committee, 525 U.S. 471 (1999). The AADC Court, speaking
through Justice Scalia, held that subsection (g) barred federal courts from addressing collateral
challenges to the commencement of immigration proceedings except insofar as those challenges
could be brought through the channel established by subsections (a)(5) and (b)(9). Id. at 487. On
the way to that conclusion, the Court emphasized the narrowness of subsection (g)’s scope: the
mischief subsection (g) was “specifically directed at” was the “deconstruction, fragmentation, and
hence prolongation of removal proceedings,” id., caused by prior judicial practice allowing for
nonstatutory review of the government’s exercise of its “discretion to abandon” immigration
proceedings on humanitarian or other grounds, such as the practice known as deferred action, id.
at 483–84.3 	The Court explained that the three actions specified in § 1252(g)—commencing
actions, adjudicating cases, executing removal orders—were not a “shorthand way of referring to
all claims arising from deportation proceedings,” id. at 482, and were instead singled out to
emphasize that the “specified decisions and actions . . . are covered by the ‘zipper’ clause of
§ 1252(b)(9),” id. at 483. The AADC Court made clear that numerous actions also involved in the
carrying out of removal, such as the decision “to include various provisions in the final order that
is the product of the adjudication,” are not thereby decisions “arising from” the three actions listed
in subsection (g). 	Id. at 482. 	The Court cited this narrow interpretation of the subsection with
3 See 1 U.S. Citizenship & Immigr. Servs, USCIS Policy Manual pt. I, ch. 3, https://www.uscis.gov/policy-manual/volume-
1-part-i-chapter-3 [https://perma.cc/D9SA-GFGB]; U.S. Citizenship & Immigr. Servs, PA-2026-01, Deferred Action
as an Extraordinary Use of Prosecutorial Discretion (2026), https://www.uscis.gov/sites/default/files/document/policy-
manual-updates/20260508-DeferredAction.pdf [https://perma.cc/W544-D97Z].
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approval nearly two decades later in a case evaluating the meaning of the same “arising from”
language in § 1252(b)(9). See Jennings v. Rodriguez, 583 U.S. 281, 294 (2018).
AADC’s interpretation of subsection (g)’s purpose as a discretion-protecting provision
dovetails with the ordinary meaning of the provision’s text. 	The decision to execute a removal
order is quintessentially discretionary—one that the executive branch has frequently declined to
take in order to prevent harsh outcomes for certain classes of noncitizens.4 Subsection (g) ensures
that the government’s choice to enforce a final, valid removal order is not frustrated by claims
challenging the government’s refusal to exercise its discretion in favor of a particular noncitizen.
Text and purpose point to the same result: subsection (g) strips the courts of jurisdiction over
claims arising from the decision, wholly committed by statute to the executive’s discretion, to
remove a noncitizen from this country. But the provision erects no barrier to the consideration of
claims that challenge the government’s failure to go through a process contended to be necessary
before the order of removal can validly be executed.
This Court is not alone in regarding claims challenging removal to a third country as
beyond the scope of § 1252(g)’s jurisdictional bar. In addition to the D.V.D. class action (about
which more below), numerous district courts, and at least one court of appeals, have rejected the
jurisdictional arguments advanced by the government. See, e.g., Beltran v. Everglades Detention
Facility, No. 2:26-cv-1228, 2026 WL 1223583, at *1–2 (M.D. Fla. May 5, 2026); Guerra v.
Blanche, No. 2:26-cv-498, 2026 WL 949027, at *2–3 (D. Nev. Apr. 7, 2026) (citing Ibarra-Perez
v. United States, 154 F.4th 989, 996 (9th Cir. 2025)); Wen Jun Liu v. Noem, No. 5:26-cv-891, 2026
WL 712952, at *2 n.2 (C.D. Cal. Mar. 10, 2026); Romero v. Ladwig, No. CV 25-1106, 2026 WL
4 The most well-known example being the Deferred Action for Childhood Arrivals policy initiated during the Obama
administration. See Consideration of Deferred Action for Childhood Arrivals (DACA), U.S. Citizenship & Immigr.
Servs., https://www.uscis.gov/DACA [https://perma.cc/UDS5-BUZB].
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685131, at *1–2 (M.D. La. Mar. 10, 2026); Mbaba v. Perez, No. 5:26-cv-70, 2026 WL 917484, at
*5 (S.D. Tex. Feb. 13, 2026); Portela-Hernandez v. Trump, No. 25-1633, 2026 WL 74042, at *4–
5 (D. Md. Jan. 9, 2026); see also Herrera-Juarez v. Blanche, No. 26-1440, 2026 WL 1147182 (4th
Cir. Apr. 28, 2026) (order granting stay of removal).
The government insists that the Sixth Circuit’s decision in Hamama v. Adducci, as well as
similar decisions barring collateral challenges to the execution of removal orders, compels
dismissal. See 912 F.3d 869, 874 (6th Cir. 2018); Rauda v. Jennings, 55 F.4th 773, 778 (9th Cir.
2022); Camarena v. Dir., ICE, 988 F.3d 1268, 1274 (11th Cir. 2021). These cases are not on point,
because none of them squarely addresses whether removal to a third country not specified in the
final order of removal constitutes “execution” of that order. As noted in the Court’s TRO opinion,
Hamama involved a challenge to removal to the country specified in the removal order based on
changed country conditions. The noncitizen in Rauda advanced a similar argument based on new
threats allegedly made to him by gang members in the country named in his removal order. See
55 F.4th at 776. And the country of removal was not mentioned at all in the Camarena case.
Camarena’s concern about the “sleight of hand” of dressing up attacks on the “execution
of a removal order” as attacks on “the government’s authority” to execute the order is a valid one.
See 988 F.3d at 1274. 	But that concern is inapplicable here because Dia challenges neither the
execution of his removal order nor the government’s authority to execute it. What he challenges
is the government’s authority to remove him to a country not named in his removal order at all.
That challenge is not placed outside this Court’s jurisdiction by subsection (g). Dia’s case is more
akin to Madu v. U.S. Attorney General, 470 F.3d 1362 (11th Cir. 2006), distinguished by
Camarena on the ground that the challenge there asserted the absence of a removal order
altogether. See Camarena, 988 F.3d at 1273. Dia’s claim is premised on the absence of Ghana
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from his removal order and the failure of the government to provide him a meaningful opportunity
to contend that he would likely be tortured or persecuted if sent to that country.
Similar considerations explain why § 1252(a)(5) and (b)(9) do not block Dia’s claims
either. 	As noted earlier, subsections (a)(5) and (b)(9) channel judicial review of immigration
proceedings and the issues arising from them into one consolidated petition for review of a final
removal order by an appeals court. 	This statutory review scheme does not encompass claims
arising from government conduct after entry of a removal order or unrelated to it, such as to a
noncitizen’s unlawful detention pending removal, see Zadvydas v. Davis, 533 U.S. 678 (2001).
The government’s argument that Dia should present his claim to a court of appeals would be more
persuasive if it could articulate a path for Dia to do so. But the suggestions that Dia can move to
reopen proceedings or that he should have sought withholding from Ghana during the pendency
of his removal proceedings are implausible. The Executive Office of Immigration Review (EOIR)
regulations governing the reopening of immigration-court proceedings bar Dia from seeking to
reopen proceedings that terminated over a decade ago. See 8 C.F.R. § 1003.23(b)(1) (2026). And
Dia cannot be blamed for failing to predict that the government would seek to remove him to a
country to which he has no connection. As the D.V.D. court noted, the “practical difficulty” of
raising fear-based claims about a country to which the noncitizen has no reason to think they will
be removed in the future is compounded by the apparent impossibility of obtaining withholding of
removal under the INA or the CAT from a country that is not the “proposed country of removal.”
2026 WL 521557, at *13–14 (quoting 8 C.F.R. § 1208.16(b) (2026)). Because there is no apparent
avenue for Dia to seek withholding of removal to Ghana from DHS, there is no reason to mandate
that he challenge the government’s refusal to allow him to seek withholding in an appeals court.
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Accordingly, subsections (a)(5) and (b)(9) do not prevent this Court from entertaining Dia’s
challenge.
The government’s last jurisdictional argument is easily disposed of. 	Section 2242(d) of
the Foreign Affairs Reform and Restructuring Act (FARRA) of 1998, Pub. L. No. 105-277, div.
G, § 2242 (codified at 8 U.S.C. § 1231 note), accomplishes two distinct tasks: it bars review of the
regulations implementing section 2242 (which in turn give domestic effect to the United States’
treaty obligations under the CAT), and it clarifies that section 2242 should not be construed as
establishing a separate jurisdictional basis for courts to review CAT claims other than through the
INA’s statutory review scheme. But Dia is not raising a CAT claim before this Court and he is
not challenging a FARRA regulation. He argues, as part of a habeas proceeding, that DHS has not
afforded him an adequate opportunity to raise a CAT claim before DHS. Section 2242(d) does not
bar habeas actions challenging the denial of adequate process in the adjudication of CAT claims.
See Saint Fort v. Ashcroft, 329 F.3d 191, 201–02 (1st Cir. 2003), cited in D.V.D., 2026 WL 521557,
at *18; Auguste v. Ridge, 395 F.3d 123, 138 n.13 (3d Cir. 2005).
In sum, the Court again finds that it has jurisdiction to hear Dia’s procedural claim. The
most plausible bar, § 1252(g), does not apply here because Dia’s challenge is not to the execution
of his removal order but to his removal to a country not named in his removal order without
allowing him to seek withholding under the INA or the CAT. The statutory review scheme set out
in § 1252(a)(5) and (b)(9) does not channel Dia’s claims into a petition for review by a court of
appeals because there is no evident path for those claims to be asserted in such a petition. And
FARRA’s bar does not apply. This Court may reach the merits of Dia’s claims.
B. 	D.V.D. v. DHS
The government renews its argument that the Court should decline to grant Dia preliminary
relief in deference to the final relief entered in the D.V.D. class action in favor of Dia and other
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members of the class. 	The government frames its request as a matter of this Court extending
“comity” to the D.V.D. court (Suppl. Resp. to Mot for TRO 20, ECF No. 17), but its arguments
mostly turn on the impropriety of granting relief purportedly rejected by the First Circuit, which
stayed the D.V.D. final judgment pending appeal, and the Supreme Court, which stayed the
preliminary injunction the D.V.D. court entered last year, see DHS v. D.V.D., 145 S. Ct. 2153
(2025). The government’s arguments for transfer or abstention do not meaningfully differ from
those it presented in opposition to Dia’s TRO application, and it has not shown why transferring
this case to a court that has entered a final judgment would be appropriate. The sole case cited in
the government’s brief does not account for the stay of the D.V.D. final judgment, so its remedial
analysis is unpersuasive. 	See Azarnezhad v. Bondi, No. 26-3073, 2026 WL 1004519, at *3 (D.
Kan. Apr. 14, 2026). By contrast, many district courts have addressed claims like Dia’s since the
D.V.D. judgment was entered without evident concern that doing so encroached on the D.V.D.
court’s jurisdiction. See, e.g., Quezada Pacheco v. Baltazar, No. 26-cv-1176, 2026 WL 1223414,
at *4 (D. Colo. May 5, 2026); Kamleshan, v. Blanche, No. 2:26-cv-908, 2026 WL 1194600, at *9
(W.D. Wash. May 1, 2026); Mendoza Palacios v. Mullin, No. 26-cv-648, 2026 WL 933319, at *4
(D. Md. Apr. 7, 2026); Rivas Quijada v. Semaia, No. 5:26-cv-1540, 2026 WL 1182196, at *3 (C.D.
Cal. Apr. 20, 2026). Transfer now would be tantamount to denying Dia relief without adjudicating
his entitlement to it. In the absence of authority mandating that result, this Court will not dispose
of Dia’s claims in that manner. The Court now turns to the merits.
C. 	Merits
This Court found that Dia was likely to succeed on the merits of his claims when it granted
his TRO application. It will now explain more precisely why that is so.
The heart of Dia’s challenge is that the government may not remove him to a third country
unless it gives him the opportunity to assert that he would be tortured or persecuted if sent to that
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country. 	The bedrock on which this argument rests is 8 U.S.C. § 1231, which specifies the
countries to which a removable noncitizen may be sent, id. § 1231(b)(1)–(2), and prohibits removal
“to a country if the Attorney General decides that the alien’s life or freedom would be threatened
in that country because of the alien’s race, religion, nationality, membership in a particular social
group, or political opinion,” id. § 1231(b)(3)(A).5 	Equally pertinent to Dia’s challenge are the
regulations implementing the United States’ CAT obligations, which mandate that a noncitizen
entitled to protection under the CAT “shall be granted withholding of removal” to a country that
is likely to torture him. 	8 C.F.R. § 1208.16(c)(4) (2026); see also id. § 208.16(d)(1) (directing
DHS adjudicators to “grant[]” an “application for withholding of deportation or removal to a
country of proposed removal . . . if the applicant’s eligibility for withholding is established”).
According to Dia, these sources of law bar ICE from removing him to Ghana unless he is given a
meaningful opportunity to request withholding of removal under the INA or the CAT. The denial
of these statutory rights, Dia further contends, amounts to a deprivation of the due process
guaranteed by the Fifth Amendment. The government, for its part, denies that the cited enactments
mandate any particular process for allowing noncitizens to raise fear-based claims, and it argues
that the procedure specified in the March Guidance clears the threshold laid down by the Fifth
Amendment. The Court concludes that Dia is likely to prevail on both statutory and constitutional
grounds.
Section 1231. On its face, § 1231(b)(3)(A) only prohibits a noncitizen’s removal if DHS
“decides” that the noncitizen would be persecuted. 	Nothing in subsection (b)(3)(A) explicitly
dictates how DHS reaches that decision, or even imposes on DHS an obligation to reach such a
5 The statute’s reference to the attorney general should probably be understood as referring to the secretary of DHS,
in accordance with the transfer of all responsibility for detention and removal to DHS. See 6 U.S.C. §§ 251(2), 552(d);
8 U.S.C. § 1551 note (Abolition of Immigration and Naturalization Service and Transfer of Functions); see also
Nielsen v. Preap, 586 U.S. 392, 397 n.2 (2019) (discussing reallocation of removal enforcement authority to DHS).
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decision at all. A later subsection directing “the trier of fact” to “determine whether the alien has
sustained the alien’s burden of proof” for demonstrating a threat to their life or freedom indicates
that Congress assumed the existence of a process for noncitizens to seek withholding of removal,
but it too does not expressly obligate DHS to decide on a noncitizen’s entitlement to withholding.
See id. § 1231(b)(3)(C).
That obligation is grounded in the statute’s purpose, as inferred from its text and context.
Subsection (b)(3) clearly aims to ensure that noncitizens will not be removed to countries where
their “life or freedom would be threatened.” Id. § 1231(b)(3)(A). That purpose would be frustrated
if DHS could simply refuse to evaluate the risk posed to a noncitizen before removing them to a
third country. See Antonin Scalia & Brian A. Garner, Reading Law: The Interpretation of Legal
Texts 63–65 (2012) (discussing the presumption against ineffectiveness); 2A Norman J. Singer &
Shambie Singer, Sutherland Statutes and Statutory Construction § 45:12 (7th ed.) (discussing the
“reasonable result” doctrine).
The history of § 1231(b)(3)(A) confirms its purpose. The predecessor to that subsection
was enacted as part of the Refugee Act of 1980, Pub. L. No. 96-212, sec. 203(e), § 243(h), 94 Stat.
102, 107. The Refugee Act gave domestic effect to the 1951 United Nations Convention Relating
to the Status of Refugees (the “Refugee Convention”), which the government acceded to by
ratifying the 1967 Protocol Relating to the Status of Refugees. 	See S. Rep. No. 96-590, at 20
(1980) (Conf. Rep.) (noting that the Refugee Act “is based directly upon the language of the
Protocol and it is intended that the provision be construed consistent with the Protocol”). 	The
Refugee 	Convention 	prohibits 	signatories 	from 	refouling—that 	is, 	returning—refugees 	to
territories in which their “life or freedom would be threatened on account of [their] race, religion,
nationality, membership of a particular social group or political opinion.” 	Refugee Convention
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art. 33, T.I.A.S. No. 6577 (July 28, 1951). The current section 1231(b)(3)(A) contains language
nearly identical to that found in the Convention. 	The Convention’s clear prohibition on
refoulement, mirrored in subsection (b)(3)(A), counsels against an interpretation of the statute that
would allow DHS to avoid deciding whether removal would lead to such an outcome.
Lastly, subsection (b)(3)(A)’s purpose can be inferred from an earlier version that it
replaced, which merely “authorized” the Attorney General to withhold a noncitizen’s deportation
if the noncitizen would in the Attorney General’s “opinion” be physically persecuted in the country
of deportation.6 Congress substituted this discretionary authorization with a mandatory prohibition
on removing noncitizens to countries where their life or freedom would be threatened, if DHS
decides such a threat exists. Taken together, these indicia of subsection (b)(3)(A)’s purpose justify
reading the provision to mandate that DHS make a decision on a noncitizen’s claim that he is
entitled to withholding of removal.
The government argues that the March Guidance sets up an adequate mechanism for
making that decision. (Gov’t’s Resp. 25–26.) But under that guidance, DHS has no obligation to
consider whether persecution or torture is likely upon removal to a third country where the
government has received “diplomatic assurances” from that country that noncitizens “removed
from the United States will not be persecuted or tortured.” (See March Guidance 1.) If the State
Department believes those assurances are “credible,” a noncitizen may be removed to that country
“without the need for further procedures.” (Id. at 2.)
Such a process does not fit with § 1231, which expressly ties DHS’s decision to the “life
or freedom” of “the alien” to be removed, not to the life or freedom of noncitizens generally. See
6 Note, Protecting Deportable Aliens from Physical Persecution: Section 243(h) of the Immigration and Nationality
Act of 1952, 62 Yale L.J. 845, 846 (1953) (quoting Immigration and Nationality Act of 1952, ch. 477, § 243(h), 66
Stat. 163, 214).
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8 U.S.C. § 1231(b)(3)(A) (emphasis added). 	Also, the ordinary meaning of “decision” when
applied to government agencies is a “determination after consideration of the facts and the law.”
See Decision, Black’s Law Dictionary (12th ed. 2024). 	Here, the relevant facts include the
circumstances that would create a risk to Dia himself if he is removed to Ghana, and it is not
possible to assess those facts without his participation. 	See D.V.D., 2026 WL 521557, at *27.
Accordingly, the statute contemplates an individualized determination about risks specific to Dia,
not a general assessment of the risk of persecution or torture for noncitizens as a group. Thus, the
assessment contemplated by the March Guidance is not the decision DHS must make under
§ 1231. 	Instead, DHS must consider Dia’s circumstances, after giving him an opportunity to
present them.
The larger statutory scheme also tends to refute the government’s view. 	There are
“countless statutory and regulatory provisions providing for notice and a hearing” during removal
proceedings, D.V.D., 145 S. Ct. at 2161 (Sotomayor, J., dissenting from unexplained order granting
temporary stay), including notice of the country to which the noncitizen will be removed, see 8
C.F.R. § 1240.10(f) (in removal hearing, requiring the immigration judge to “identify for the record
a country, or countries in the alternative, to which the alien’s removal may be made”). 	These
provisions would be meaningless if the government could simply designate one location in its
removal order and then deport the noncitizen to a different country “of the Government’s
choosing” after that removal order becomes final. D.V.D., 145 S. Ct. at 2161.
Furthermore, the INA contemplates a particular process for DHS to decide whether a
country of removal threatens the noncitizen’s life or freedom, and that process involves input from
the noncitizen. See 8 U.S.C. § 1231(b)(3)(C) (discussing the noncitizen’s “burden of proof” to be
considered by a “trier of fact” when determining whether the noncitizen’s life or freedom would
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be threatened by removal to a particular country). It makes little sense for DHS to provide one
type of process before the removal order becomes final and a completely different process (or no
process at all) afterward. Nothing in the statute permits such a result.7
A final consideration is the doctrine of avoidance. 	The argument that § 1231 requires
nothing in the way of process for third-country removals raises serious questions about its
constitutionality. When there is more than one plausible construction of a statute, federal courts
generally select the one that avoids rendering the statute unconstitutional. 	See Edward J.
DeBartolo Corp. v. Fla. Gulf Coast Bldg. & Constr. Trades Council, 485 U.S. 568, 575 (1988). 8
For reasons discussed in more detail below, the Due Process Clause of the Fifth Amendment
requires the government to provide Dia with an opportunity to be heard on whether his removal to
Ghana threatens his life or freedom. If the Court were to conclude that § 1231 does not require
such a process, that conclusion would suggest that the statute is unconstitutional.
Accordingly, for all the foregoing reasons, the Court finds that the INA mandates that Dia
be given an opportunity to raise fear-based claims regarding his removal to Ghana and to have
those claims evaluated in an individualized manner. In other words, he is entitled to the process
he would have received during his removal proceedings had Ghana been designated as a country
of removal in those proceedings.
Due process. 	Even if § 1231 itself does not entitle Dia to the relief he seeks, the Court
finds in the alternative that his removal under the March Guidance would deprive him of due
process. This conclusion relies on the statutory and regulatory provisions discussed above for a
7 The entire list of countries to which the government can remove a noncitizen, see 8 U.S.C. § 1231(b)(1)–(2), is
expressly “[s]ubject to paragraph (3).” See 8 U.S.C. § 1231(b)(1), (b)(2). Paragraph (3) includes both the prohibition
in § 1231(b)(3)(A) on removal to countries where the noncitizen’s life or freedom would be threatened, and the
procedural requirements in § 1231(b)(3)(C).
8 See Adrian Vermeule, Saving Constructions, 85 Geo. L.J. 1945, 1949 (1997) (distinguishing between “classical”
and “modern” avoidance).
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different purpose: because those provisions establish Dia’s right not to be sent to a country where
he will be persecuted or tortured, he can only be deprived of that right through procedures that
give him a reasonable opportunity to prove that his persecution or torture is likely. Dia contends
that the procedures set out in the March Guidance do not meet this standard.
“Procedural due process applies only to the deprivation of constitutionally protected liberty
or property interests.” Doe v. Staples, 706 F.2d 985, 988 (6th Cir. 1983). If a protected interest is
established, assessing whether a deprivation of that interest by a given proceeding would comport
with due process entails balancing three factors: the private interest at stake in the proceeding; the
risk that the interest will be erroneously infringed on by the existing procedures, in light of the
opportunities available for mitigating that risk by imposing additional safeguards; and the costs,
financial and otherwise, to the government of modifying the existing procedures. See Johnson v.
Morales, 946 F.3d 911, 922 (6th Cir. 2020) (citing Mathews v. Eldridge, 424 U.S. 319, 335
(1976)).
The liberty interest Dia invokes is the right not to be removed to a third country without
being given the opportunity to raise fear-based claims related to that country. That interest in no
way turns on a favorable exercise of discretion; § 1231, the CAT, and the regulations implementing
them prohibit DHS from removing a noncitizen to a country if the agency concludes the noncitizen
would be tortured or persecuted there. See Refugee & Immigrant Ctr. for Educ. & Legal Servs. v.
Mullin, No. 25-5243, 2026 WL 1110616, at *19–20 (D.C. Cir. Apr. 24, 2026) (concluding that no
statute permits removal to the countries barred by § 1231(b)(3)(A) and the CAT); Khouzam v.
Att’y Gen. of U.S., 549 F.3d 235, 255–57 (3d Cir. 2008); Sagastizado v. Noem, 802 F. Supp. 3d
992, 1009 (S.D. Tex. 2025) (“[T]hird-country removals are subject to the same mandatory
protections that exist in removal or withholding-only proceedings.”). Moreover, the government
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does not assert that Dia lacks an interest in not being removed without an opportunity to be heard.
“Noncitizens who have ‘passed through our gates, even illegally, may be expelled only after
proceedings conforming to traditional standards of fairness encompassed in due process of law.’”
Lopez-Campos v. Raycraft, No. 25-1965, 2026 WL 1283891, at *11 (6th Cir. May 11, 2026)
(quoting Shaughnessy v. United States ex rel. Mezei, 345 U.S. 206, 212 (1953)). The Court
proceeds to balancing the factors.
The interest Dia invokes is undoubtedly a weighty one. 	Extended discussion of the
importance of receiving a fair opportunity to express fear of torture or persecution is unnecessary.
This factor favors Dia.
The risk that Dia will be improperly deprived of this interest is palpable. 	The March
Guidance offers essentially no process for noncitizens to raise fear-based claims if DHS plans to
remove them to a country from which the government has received assurances that those expelled
to its territory will not be persecuted or tortured. The guidance expressly allows DHS to “remove”
noncitizens “without the need for further procedures” if the State Department finds the assurances
of the receiving country credible. (March Guidance 2.) It is not evident that DHS will even allow
Dia to undergo the “screening” that it conducts for those to be removed to countries that have not
offered assurances. And even if it did, the guidance provides no means of obtaining review of a
negative determination by the screening officer. Only a finding of legitimate fear would entitle
Dia to a full-dress hearing before an immigration judge—the process he could have received had
Ghana been designated as a country of removal during his removal proceedings. 	As discussed
above, generalized assurances from another country that noncitizens removed to that country will
not be tortured or persecuted are not adequate to determine whether Dia himself would be at risk.
See D.V.D. v. U.S. Dep’t of Homeland Sec., No. CV 25-10676-BEM, 2026 WL 521557, at *35–
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36 (D. Mass. Feb. 25, 2026). 	Neither is the expectation that noncitizens like Dia preemptively
seek withholding from countries not mentioned during their removal proceedings, or that they
attempt to reopen those proceedings where, as here, it appears they would be barred from doing
so. In these circumstances, any additional process allowing Dia to submit his claims to a neutral
adjudicator would significantly reduce the risk of an erroneous deprivation of his rights. 	This
factor also weighs in Dia’s favor.
The government’s interest in the efficient enforcement of the immigration laws, as
important as it is, cannot justify its refusal to entertain a claim that Dia would face a risk or
persecution or torture if sent to Ghana. Indeed, the government already provides a procedure for
noncitizens to raise such claims during their removal proceedings, and presumably the government
would have offered that procedure to Dia during his own removal proceedings had he raised the
issue at that time. Consequently, requiring the government to provide such a process to Dia at this
point will not impose an undue burden on the government. Thus, all the factors weigh in Dia’s
favor. He is likely to succeed on the merits of his due process claim.
In summary, Dia has established a likelihood of success on the merits sufficiently strong
to warrant the entry of preliminary injunctive relief. 	And because the Court finds no reason to
revisit its conclusion that Dia has satisfied the other preliminary-injunction factors, a preliminary
injunction will enter.
D. 	Remedy
Dia’s likelihood of success does not necessarily dictate the process that he is entitled to at
this stage of the proceedings. 	The Court is mindful that enforcement of the immigration laws,
including the development of procedures for allowing noncitizens to seek relief from removal, is
a matter that Congress has delegated to the executive branch. But in light of the Court’s conclusion
that the process provided in the March Guidance is inconsistent with both the INA and the Due
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Process Clause, the Court will enjoin Dia’s removal until the government offers him a process that
is consistent with the INA and the Due Process Clause. Specifically, the government must permit
Dia to reopen his removal proceedings so that he can raise any fear-based challenges to his removal
to Ghana and have those issues decided by an immigration judge in the same manner as if Dia had
challenged his removal to Ghana in his prior proceedings. 	See Navarro-Maury v. Hermosillo,
No. 2:26-CV-00333-TMC, 2026 WL 1413166, at *6 (W.D. Wash. May 20, 2026) (granting similar
relief); Betancourt v. Mullin, No. 26-CV-2640 JAO (MSB), 2026 WL 1400627, at *5 (S.D. Cal.
May 19, 2026) (same); Larose v. Blanche, No. 2:26-CV-00423-JAD-NJK, 2026 WL 1346636, at
*8–9 (D. Nev. May 14, 2026) (same); Romero v. Ladwig, No. CV 25-1106-JWD-EWD, 2026 WL
1146824, at *16 (M.D. La. Apr. 21, 2026) (same); Mendoza Palacios v. Mullin, No. 26-CV-648-
ABA, 2026 WL 933319, at *11 (D. Md. Apr. 7, 2026) (same); Aden v. Nielsen, 409 F. Supp. 3d
998, 1023 (W.D. Wash. 2019) (same); see also Sagastizado, 802 F. Supp. 3d at 1016 (enjoining
the petitioner’s removal to a third country until an immigration judge reviews the petitioner’s fear-
based claim).
IV. 	CONCLUSION
For the reasons herein, the Court will convert the TRO to a preliminary injunction. 	A
separate order will issue.
Dated: May 27, 2026 	/s/ Hala Y. Jarbou
HALA Y. JARBOU
CHIEF UNITED STATES DISTRICT JUDGE
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