Gakou: A Third-Country Removal Stay Denied on Jurisdictional Grounds

Case Overview: Third-Country Removal and Emergency Stay Jurisdiction

In Gakou v. Warden, No. 26-10925 (5th Cir. Oct. 10, 2026), the United States Court of Appeals for the Fifth Circuit denied an emergency motion for a stay of removal pending appeal filed by a detained noncitizen facing immediate deportation to a third country. The published per curiam order treated the requested stay as a challenge to execution of a removal order barred by 8 U.S.C. § 1252(g). It therefore found Gakou unlikely to succeed in this habeas appeal despite his pending Convention Against Torture (CAT) claims. Gakou, slip op. at 2–3.

Factual Chronology and Procedural Posture

The record establishes the following factual and procedural sequence:

• Nationality and Detention: Abasse Gakou, a native of Senegal, was taken into U.S. Immigration and Customs Enforcement (ICE) custody and housed at the Prairieland Detention Center in Texas.
• Third-Country Removal Designation: ICE scheduled Gakou for immediate deportation to Sierra Leone, a third country distinct from his country of origin.
• District Court Habeas Petition: Gakou filed a petition for a writ of habeas corpus under 28 U.S.C. § 2241 in the U.S. District Court for the Northern District of Texas (USDC No. 3:26-CV-2878). He challenged his continued detention and sought an injunction against third-country removal pending further litigation of his CAT claims.
• District Court Judgment: The district court denied all requested habeas relief and declined to enter a stay of removal.
• Emergency Fifth Circuit Motion: Gakou appealed to the Fifth Circuit and moved for an emergency stay of removal and an administrative stay pending appeal.

Precise Legal Questions Presented

The Fifth Circuit addressed two core legal issues:

• Whether a federal court of appeals has jurisdiction to grant an emergency stay of removal to block execution of a removal order to a third country during an appeal from a habeas denial.
• Whether 8 U.S.C. § 1252(g) strips judicial power to entertain stay motions that arise directly from executive decisions to execute removal orders.

Fifth Circuit Step-by-Step Reasoning and Authority

Writing per curiam, Circuit Judges Smith, Southwick, and Douglas denied both the administrative stay and the motion for a stay pending appeal based on a threshold jurisdictional analysis:

1. The Four-Factor Stay Standard and Merit Threshold

The court acknowledged the traditional four-factor test for granting a stay pending appeal under Nken v. Holder, 556 U.S. 418, 425–26 (2009) and Veasey v. Abbott, 870 F.3d 387, 391 (5th Cir. 2017): (1) strong showing of likelihood of success on the merits; (2) irreparable injury to the applicant; (3) substantial injury to other interested parties; and (4) where the public interest lies. Citing Virginian Ry. Co. v. United States, 272 U.S. 658, 672 (1926), the court emphasized that a stay is an extraordinary remedy rather than a matter of right. Because Gakou failed to demonstrate any likelihood of success on the merits due to jurisdictional bars, the court explicitly declined to evaluate the remaining three stay factors. It did not determine that the risk of irreparable harm was absent or balance the other interests against the petitioner. Gakou, slip op. at 2.

2. Jurisdictional Bar Under 8 U.S.C. § 1252(g)

The court centered its decision on the explicit statutory text of 8 U.S.C. § 1252(g): Subject to enumerated statutory exceptions, "no court shall have jurisdiction to hear any cause or claim by or on behalf of any alien arising from the decision or action by the Attorney General to commence proceedings, adjudicate cases, or execute removal orders against any alien under this chapter." Applying circuit precedent in Humphries v. Various Fed. USINS Emps., 164 F.3d 936, 943 (5th Cir. 1999), the panel held that courts are barred from hearing claims connected directly and immediately with those covered executive actions.

The panel relied on its cited Imran authority to treat this request as a challenge to execution of a removal order within section 1252(g), rather than a basis to bypass the jurisdictional limitation. It concluded that it lacked power to entertain Gakou’s motion. Gakou, slip op. at 2–3.

3. Supreme Court Context Regarding Third-Country Removals

Separately, the Fifth Circuit described the Supreme Court’s interim orders in DHS v. D.V.D. as permitting third-country removals while the merits remained unresolved. The panel relied on that description to reject Gakou’s asserted basis for the injunction he sought. This was the Fifth Circuit’s treatment of interim orders, not a final Supreme Court merits determination of CAT protections or every third-country removal. Gakou, slip op. at 3.

Exact Disposition

The Fifth Circuit issued the following explicit rulings:

• Opposed motion for an administrative stay prohibiting respondents from removing Gakou during emergency motion review was DENIED.
• Opposed motion for a stay of removal pending appeal was DENIED.

Practical Significance, Limits, and Present State of the Law

The ruling in Gakou v. Warden carries specific operational boundaries for federal immigration litigation:

• Circuit Scope: This is a published Fifth Circuit order, not a Ninth Circuit decision governing California federal courts. It reflects the Fifth Circuit's strict jurisdictional reading of 8 U.S.C. § 1252(g) regarding stays of removal.
• Limits of the Holding: The court did not rule that all habeas corpus petitions are categorically barred across every factual circumstance, nor did it hold that all third-country removals are intrinsically lawful on their substantive merits. It applied that jurisdictional reading to the stay requested in this habeas appeal, leaving the other stay factors unaddressed. Gakou, slip op. at 2–3.
• Supreme Court Interim Orders: The court's citation to DHS v. D.V.D. attributes the Fifth Circuit's description of Supreme Court interim procedural orders. Procedural stay rulings by the Supreme Court do not constitute final merits determinations on underlying CAT protections.
• No Automatic Litigation Stays: Filing a federal habeas petition or an appeal does not create an automatic stay of removal or eliminate executive authority to execute a final removal order.

Read the official published order: Gakou v. Warden published order PDF. For additional legal analyses regarding removal defense and federal court jurisdiction, visit our Immigration Law Practice Hub.