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Gakou v. Warden — Fifth Circuit denied an emergency stay of third-country removal

Reported / Citable

Case
Abasse Gakou v. Warden of the Prairieland Detention Center; Robert Cerna, in his official capacity as Field Office Director of Enforcement and Removal Operations, Dallas Field Office, U.S. Immigration and Customs Enforcement; David Venturella, Acting Director, U.S. Immigration and Customs Enforcement, in his official capacity as Acting Director of U.S. Immigration and Customs Enforcement; Mark Wayne Mullin, in his official capacity as U.S. Secretary of Homeland Security; Todd Blanche, in his official capacity as Attorney General of the United States
Court
U.S. Court of Appeals for the Fifth Circuit
Judge
Smith; Southwick; Douglas
Date Decided
October 10, 2026
Docket No.
26-10925
Topics
Immigration, Habeas Corpus, Third-Country Removal, Stay Pending Appeal
Source
Read the full opinion

Background

Abasse Gakou, a native of Senegal held in U.S. Immigration and Customs Enforcement custody, faced immediate removal to Sierra Leone. He filed a habeas petition in the Northern District of Texas challenging his continued detention and seeking to prevent his removal to a third country while he pursued claims under the Convention Against Torture.

The district court denied all relief and declined to stay Gakou’s removal. Gakou then asked the Fifth Circuit for an administrative stay and an emergency stay of removal pending his appeal.

The Court’s Holding

The Fifth Circuit denied both requests. It held that 8 U.S.C. § 1252(g) deprived the court of jurisdiction to consider the requested stay because the motion challenged the government’s execution of a removal order. The court explained that the jurisdictional bar also reaches claims connected directly and immediately with executing removal orders.

The court separately concluded that Gakou was deeply unlikely to prevail on his request to enjoin removal to a country other than Senegal. It relied on the Supreme Court’s decision in DHS v. D.V.D. to permit third-country removals to continue while the Supreme Court considered the issue. Because Gakou failed to show a meaningful probability of success on the merits, the panel did not address the other three stay factors.

Key Takeaways

  • Section 1252(g) barred the Fifth Circuit from entertaining Gakou’s request to stay execution of his removal order.
  • The panel treated the Supreme Court’s interim action in DHS v. D.V.D. as foreclosing Gakou’s reliance on his third-country-removal claim at the stay stage.
  • The ruling denied interim relief pending appeal; it did not resolve the full appeal from the district court’s denial of habeas relief.

Why It Matters

The published order confirms the Fifth Circuit’s view that a request to stay removal falls within § 1252(g)’s jurisdictional restriction when it challenges the government’s execution of a removal order. That conclusion sharply limits the availability of emergency appellate relief in this procedural posture.

The order also shows that, while the Supreme Court considers the legality of third-country removals, its decision allowing those removals to continue may make it difficult for similarly situated noncitizens to establish likely success on the merits when seeking a stay.

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