Supreme Court Stays D.V.D. Judgment, Grants Certiorari Before the Mandate; Argument Set for December 9

Eleven days after the First Circuit affirmed the D.V.D. final judgment, the Supreme Court granted DHS’s application and stayed the district court’s February 25, 2026 order and judgment. It treated the application as a petition for certiorari and granted it (No. 26-426). Justices Sotomayor, Kagan and Jackson would have denied the stay. The order poses four questions: district-court jurisdiction; authority to enter classwide declaratory relief and APA vacatur under 8 U.S.C. 1252(f)(1); whether the Guidance is unlawful under 8 U.S.C. 1231(b), the Due Process Clause or FARRA/CAT; and “such other questions that the Government determines are appropriate.” The stay lasts until the Court’s judgment is sent down.

The sequence ran fast: the First Circuit dissolved its own stay pending appeal at 11:36 p.m. on September 23; DHS filed the application and the cert petition on September 24; the class responded September 28; the Court ruled September 29. Briefing was set October 1 (petitioners October 23, respondents November 16, reply December 1) with argument on December 9, 2026.

The judgment’s vacatur of the Guidance was class-wide, and DHS itself describes it as “universal” in its application, so the stay suspends notice and fear-claim protections for the whole class, not only in First Circuit states. This is the third time in the D.V.D. line that the emergency docket has let the program run (2025-06-23–scotus-enables-third-country-deportations-dvd).