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Discussion

Sofia Jadler:

D.V.D. is not an acronym. It is the court-authorized initials-based pseudonym of the lead plaintiff, used to protect that person’s identity. The case was brought by four noncitizens—D.V.D., M.M., E.F.D., and O.C.G.—whose histories differ. The shared issue is whether people with final U.S. removal orders may be sent to countries not previously specified in their proceedings, and what notice and protection screening must come first.

Sam Dewinski:

That distinction matters because one caption can make a complicated policy look like one machine with one set of rules. The plaintiffs include people with orders to particular countries, people with withholding or Convention Against Torture protection, and someone whose case involved expedited and reasonable-fear procedures. One lawsuit does not mean one kind of migrant.

Kate Burvish:

They are not one economic unit, either. A final order, a temporary transit arrangement, and a person awaiting a protection decision create different costs for transportation, detention, legal representation, foreign assistance, and monitoring. Reported totals are also difficult to compare because some counts cover formal removals, others transit, and others people temporarily housed abroad.

Red Velhouse:

So let’s separate whether someone is removable from the next question: what happens when that person says return would be dangerous?

Sofia Jadler:

There are several legal layers. Through the 1967 Protocol relating to the Status of Refugees, the United States accepted the Convention’s central protection obligations, including non-refoulement: generally, not returning someone to a place where life or freedom would be threatened for a protected reason. The United States is also party to the Convention Against Torture, or CAT, which prohibits sending someone to a country where torture is more likely than not, with the required government involvement or acquiescence.

Sofia Jadler:

Domestically, the Immigration and Nationality Act, or INA, supplies asylum rules. Withholding of removal and CAT protection are narrower and country-specific; the Foreign Affairs Reform and Restructuring Act, or FARRA, and regulations carry CAT’s non-return rule into U.S. procedures. A final removal order therefore is not a universal declaration that every country the Department of Homeland Security, or DHS, selects is safe.

Sam Dewinski:

That distinction is historically familiar. Governments have long treated the authority to remove someone as different from the obligation not to send that person into a particular danger. A person can be removable while removal to a newly selected country still requires a destination-specific safety inquiry.

Red Velhouse:

What did the First Circuit say about that newly selected country, and what did it leave open?

Sofia Jadler:

On September 18, 2026, the First Circuit largely affirmed a judgment requiring effective notice and a meaningful opportunity to raise fear of persecution or torture in the proposed destination. It rejected the challenged DHS guidance insofar as it allowed third-country removal without that opportunity. The government argues that final orders must remain executable and that diplomatic assurances plus rapid screening can prevent unlawful removal. The challengers answer that a person cannot meaningfully contest danger in a country they have not been told about.

Sofia Jadler:

This was not a universal ruling that every third-country removal is forbidden. Some sequencing questions remained unresolved, including issues affected by standing. But the central point is clear for the covered class: destination-specific fear cannot be assessed meaningfully without effective notice and a real chance to present the claim.

Kate Burvish:

There is an operational side as well. These arrangements can involve transportation, housing, food, security, medical care, detention, and diplomatic commitments. They may reduce pressure in one part of the system while creating costs and accountability problems elsewhere. Because the categories are counted differently, headline totals do not establish a reliable per-person cost or deterrence effect.

Red Velhouse:

Now the harder political question. If someone travels through several countries and says they fear the country they left, does that show an economic claim—or that protection was available somewhere else?

Sofia Jadler:

It can be evidence, but it is not an automatic legal disqualification. The government’s strongest argument is that the person bypassed available protection, chose the United States for higher wages or other advantages, and should therefore face a safe-third-country rule, a firm-resettlement finding, a credibility challenge, or adverse discretionary treatment where the requirements are met. But brief or dangerous transit is not the same as lawful, durable protection in a country offering a full and fair asylum process.

Sofia Jadler:

Under the INA’s safe-third-country provision, an agreement-based transfer requires more than another country’s existence. The receiving country must not threaten the person’s life or freedom on a protected ground and must provide access to a full and fair protection procedure. Separately, firm resettlement can bar asylum when someone received an offer of permanent resident status or citizenship elsewhere. Mere transit or temporary, insecure presence is not automatically firm resettlement.

Sam Dewinski:

The phrase “first safe country” sounds universal, but history is messier. Refugees have often crossed countries that lacked legal status, safety, or a durable place to stay. The relevant question is not simply how many borders were crossed, but what protection, status, safety, and realistic access to a procedure existed in each place.

Kate Burvish:

Route choice is informative, but noisy. People may keep moving because U.S. wages are higher, relatives are here, they cannot legally work where they stopped, or they remain unsafe. Employment history, remittance plans, family ties, and screening statements may support an economic-motive argument. But motive alone does not answer whether the person faces persecution or torture. Someone may flee political persecution and still want a job, reunite with family, or educate children. Ordinary poverty or a desire for higher wages ordinarily does not satisfy the refugee definition, though economic harm can matter when tied to a protected ground.

Red Velhouse:

Critics sometimes say the asylum bar is so low that much of the world could become eligible to migrate here. Is that a legal conclusion, or a screening and capacity argument?

Sofia Jadler:

It is accurate only as a screening and capacity argument, not as a claim that everyone qualifies for asylum. Credible fear is a gateway standard: generally, a significant possibility that the person could establish eligibility later. A positive finding does not grant asylum. At the merits stage, asylum requires persecution or a well-founded fear tied to a protected ground; statutory withholding generally requires a clear probability of persecution; and CAT protection requires torture to be more likely than not.

Sofia Jadler:

A lower screening threshold can mean more people receive fuller hearings, increasing caseloads, detention costs, and adjudication time. But it does not erase credibility review, protected-ground requirements, country-specific evidence, firm-resettlement rules, filing requirements, or other bars. Passing screening is neither proof that a claim is valid nor proof that it is frivolous.

Sam Dewinski:

Historically, governments often want the first interview to decide everything because adjudication is expensive. The counterlesson is that a gateway test and a final judgment serve different purposes. Screening asks whether a claim deserves fuller examination; it does not say the claimant has already proved the case.

Red Velhouse:

If the system must still examine an individual claim, what lawful alternatives could provide safety or opportunity without a long, irregular journey to the United States?

Kate Burvish:

There are several, but none is universal. Refugee resettlement can move selected refugees from a country of asylum to a third country with permanent residence and protection against refoulement. Humanitarian parole can provide temporary admission for urgent humanitarian reasons or significant public benefit. Family-based immigrant visas can lead to permanent residence for qualifying relatives, while employment-based immigrant or temporary visas can provide lawful work for people with the required employer, skills, and admissibility.

Kate Burvish:

Regional options include asylum or legal status in a nearby country, family-reunification initiatives, Safe Mobility Offices, and labor programs. They may offer safety, schooling, work authorization, or referrals. But capacity and eligibility change. A work visa cannot help someone who must flee tonight without a qualifying employer, and a family visa cannot help someone without the required relationship. Resettlement is selective; parole is temporary and discretionary; regional protection may be unsafe or unavailable.

Sam Dewinski:

Resettlement is the clearest historical example of a safe alternative, but it was never a general lane for everyone who wanted to move. Regional protection can be closer to home, yet host countries may lack housing, jobs, schools, or reliable asylum institutions. Geography alone does not make protection durable.

Sofia Jadler:

Alternatives do not replace individualized non-refoulement screening. A government may expand work, family, resettlement, or humanitarian routes and argue that regional protection should reduce irregular movement. But if someone raises a potentially valid fear of persecution or torture before removal to a particular destination, another program does not eliminate the obligation to assess that risk under the applicable framework.

Red Velhouse:

So how should listeners evaluate this policy without collapsing every category into one label?

Sofia Jadler:

Keep three questions separate. First, does the person have a final removal order? Second, what protection claim applies, and to which country? Third, did the person receive the notice and procedure required before removal to the proposed destination? A final order may answer the first question without answering the second or third.

Sam Dewinski:

Then resist two shortcuts. Traveling through several countries does not prove that a claim is invented, and raising a fear claim does not prove asylum will be granted. The record may show economic ambition, family strategy, danger, or all three. Law and history require more precision than a binary label.

Kate Burvish:

Finally, ask whether an alternative is real at the scale of the problem. A small quota, long backlog, narrow family definition, or demanding employer requirement may help those who qualify but leave many others outside it. Expanding credible alternatives could reduce dangerous travel, but only if they are accessible, adequately funded, and stable enough for people to trust.

Red Velhouse:

D.V.D. is the initials-based pseudonym of a lead plaintiff, not the name of a deportation program. The case concerns what happens when DHS selects a third country after a final removal order, and whether the person receives effective notice and a meaningful opportunity to raise destination-specific fear of persecution or torture. The Refugee Protocol, the Convention Against Torture, the Immigration and Nationality Act, FARRA, and their implementing rules create related but distinct protections. Transit through other countries can matter through safe-third-country rules, firm resettlement, credibility, or discretion, but it is not an automatic bar. Economic motives can coexist with genuine protection claims, while credible-fear screening is only a gateway—not a grant of asylum. Resettlement, parole, family and employment visas, regional protection, and labor programs can provide safety or opportunity, but their limits mean they cannot replace individualized screening or serve everyone who wants to migrate. Sources and references for this discussion are available with the episode at Factolio.com.

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Sources and References

These sources supported the factual material used in this discussion. Factolio’s panel discussion is AI-generated from researched evidence and is written in original language.

1. U.S. Court of Appeals for the First Circuit — D.V.D. v. Department of Homeland Security, No. 26-1212, opinion filed September 18, 2026 (PRIMARY)
2. Executive Office for Immigration Review, U.S. Department of Justice — Asylum, Withholding of Removal, Convention Against Torture (PRIMARY)
3. Executive Office for Immigration Review, U.S. Department of Justice — Procedures for Asylum and Withholding of Removal; Credible Fear and Reasonable Fear Review (PRIMARY)
4. U.S. Court of Appeals for the First Circuit — D.V.D. v. Department of Homeland Security, case caption and opinion (PRIMARY)
5. United Nations Treaty Collection — Protocol relating to the Status of Refugees: United States participant record (PRIMARY)
6. United Nations Treaty Collection — Protocol relating to the Status of Refugees, treaty details (PRIMARY)
7. UNHCR — Access to territory and non-refoulement (PRIMARY)
8. UNHCR — The 1951 Refugee Convention (PRIMARY)
9. Office of the United Nations High Commissioner for Human Rights — Convention Against Torture materials concerning Article 3 non-refoulement (PRIMARY)
10. U.S. House of Representatives, Office of the Law Revision Counsel — 8 U.S.C. § 1158, asylum (PRIMARY)
11. UNHCR — Information Note on Implementation of the 1951 Convention and the 1967 Protocol (PRIMARY)
12. UNHCR — Master glossary of terms: transfer arrangements and safe third countries (PRIMARY)
13. Executive Office for Immigration Review, U.S. Department of Justice — Matter of A-G-G-, 25 I&N Dec. 486 (BIA 2011) (PRIMARY)
14. Executive Office for Immigration Review, U.S. Department of Justice — BIA precedent chart discussing firm resettlement (PRIMARY)
15. Executive Office for Immigration Review, U.S. Department of Justice — 2019 third-country transit asylum rule materials (PRIMARY)
16. Executive Office for Immigration Review, U.S. Department of Justice — 2020 third-country transit and security-bars materials (PRIMARY)
17. Executive Office for Immigration Review, U.S. Department of Justice — Procedures for Asylum and Withholding of Removal; Credible Fear and Reasonable Fear Review, final-rule materials (PRIMARY)
18. Executive Office for Immigration Review, U.S. Department of Justice — Volume 19 precedent decisions discussing well-founded fear and clear probability (PRIMARY)
19. Executive Office for Immigration Review, U.S. Department of Justice — Third Country Asylum Rule announcement (PRIMARY)
20. Refugee Processing Center, U.S. Department of State — Admissions and Arrivals: U.S. Refugee Admissions Program (PRIMARY)
21. U.S. Department of State — Report to Congress on Proposed Refugee Admissions for Fiscal Year 2025 (PRIMARY)
22. UNHCR — Information on UNHCR Resettlement (PRIMARY)
23. UNHCR — Resettlement (PRIMARY)
24. U.S. Citizenship and Immigration Services — Humanitarian or Significant Public Benefit Parole for Noncitizens Outside the United States (PRIMARY)
25. U.S. Citizenship and Immigration Services — Parole is not an immigrant visa or lawful permanent residence (PRIMARY)
26. U.S. Department of State — Family-based immigrant visas (PRIMARY)
27. U.S. Department of State — Employment-based immigrant visas (PRIMARY)
28. U.S. Department of State — Temporary employment visas (PRIMARY)
29. U.S. Department of State — Interagency U.S. Migration Policy Overview (PRIMARY)
30. UNHCR — Emergency transit facilities (PRIMARY)