Yesterday, in Make the Road New York v. Mullin, a divided panel of the U.S. Court of Appeals for the D.C. Circuit vacated a district court's stay blocking the Department of Homeland Security from applying "expedited removal" processes more broadly. Judge Walker wrote the opinion for the court. Judge Rao concurred in part and concurred in the judgment. Judge Wilkins concurred in part and dissented in part. Given the subject matter of this case, and the panel's composition, I suspect Make the Road will seek en banc review, and that there's a strong chance such a petition will be granted, as the full D.C. Circuit is significantly more liberal than this panel.

Judge Walker's offered this summary at the start of his opinion:

Thirty years ago, Congress created a new process for deporting illegal aliens. It is called "expedited removal." Unlike other statutorily required procedures that can take years to complete, expedited removal often takes just a few days.

At issue here is the provision allowing the Secretary of Homeland Security to designate certain aliens already in the country for expedited removal. Congress excluded many people from that provision. Any aliens admitted or paroled are excluded, even if they are here illegally. So too is anyone who can prove he has lived here — legally or illegally — for at least two straight years.

As for whether to designate other aliens for expedited removal, Congress let the Executive decide. And for many years, while some were designated, others were not. But that changed in January 2025 when the Executive expanded expedited removal to the maximum extent allowed by Congress.

The district court stayed the expansion, holding that it likely violated due process.

Because it does not, we vacate the stay.

Judge Rao agreed with Judge Walker that the expansion of expedited removal does not violate due process, but disagreed with the majority's conclusion that this question is subject to judicial review. Judge Wilkins agreed with Judge Walker that the expedited review policy was subject to judicial review, and concluded the way the policy was adopted violated due process.

In my view, Judge Rao's opinion is likely correct (and is a likely preview of what a majority of the justices would conclude), but is in tension with D.C. Circuit precedent. Here is how her opinion begins:

When reforming immigration law in 1996, Congress created a procedure for quickly removing certain unlawfully present aliens from the United States. Congress also gave the Executive "sole and unreviewable discretion" to decide which aliens would be subject to expedited removal and explicitly barred courts from reviewing those decisions. Make the Road challenged the Executive's policy decision to expand the reach of expedited removal. The district court concluded that it had jurisdiction and issued a universal stay of the expedited removal policy.

This lawsuit should have been dismissed at the threshold because Congress left expedited removal policies to the Executive's discretion, barred judicial review, and foreclosed universal remedies. While I respectfully disagree with my colleagues' decision to reach the merits, I agree with Judge Walker that the expedited removal policy is consistent with due process and that the district court's stay must be vacated. After over a year of litigation, the government finally may proceed with its expedited removal policy.

Interestingly, Judge Walker joined this portion of Judge Rao's opinion (so it reflects the views of a majority of the panel, even if it is not part of the judgment):

Our circuit has held that district courts have jurisdiction over preenforcement challenges to designation decisions and expedited removal policies implementing those decisions. Make the Road I, 962 F.3d at 624–26; see also Majority Op. 14–15. This conclusion, however, is inconsistent with the text and structure of IIRIRA. I again highlight the lack of jurisdiction because this error lies at the inception of this and many other cases. See Make the Road I, 962 F.3d at 639–45 (Rao, J., dissenting) (explaining why courts lack jurisdiction over preenforcement suits challenging expedited removal designations).

Congress's power to limit federal court jurisdiction is one of the few checks on the Judiciary. Accordingly, a "statute affecting federal jurisdiction must be construed both with precision and with fidelity to [its] terms." Kucana v. Holder, 558 U.S. 233, 252 (2010) (cleaned up). That principle applies with particular force here given that "many provisions of IIRIRA are aimed at protecting the Executive's discretion from the courts—indeed, that can fairly be said to be the theme of the legislation." Reno v. American-Arab Anti-Discrimination Comm., 525 U.S. 471, 486 (1999).

IIRIRA doubly strips jurisdiction to review the Designation. First, courts lack jurisdiction to review "any … decision or action … the authority for which is specified … to be in the [Secretary's] discretion." 8 U.S.C. § 1252(a)(2)(B)(ii). This covers expedited removal designations, which Congress expressly committed to the "sole and unreviewable discretion" of the Secretary. Id. § 1225(b)(1)(A)(iii)(I); see Make the Road I, 962 F.3d at 63941 (Rao, J., dissenting).

Second, courts generally lack jurisdiction to review policies and procedures implementing expedited removal. See 8 U.S.C. § 1252(a)(2)(A)(iv). Congress conferred authority on the Secretary to set expedited removal policies and stripped courts of jurisdiction to consider challenges to those policies. See id. §§ 1225(b)(1)(A), 1252(a)(2)(A)(iv). By contrast, Congress preserved judicial review of challenges to written policies and procedures "solely in the context of individual 'determinations under section 1225(b).'" Make the Road I, 962 F.3d at 642–43 & nn.10–11 (Rao, J., dissenting) (quoting 8 U.S.C. § 1252(e)(3)(A)). IIRIRA preserved judicial review for individuals vindicating their legal rights. But there are no individual determinations at issue in this case. Make the Road's lawsuit fails because the Secretary's Designation is an expedited removal policy that cannot be reviewed by the federal courts.

IIRIRA commits expedited removal policies to the Secretary's discretion and insulates that discretion from judicial review. Although circuit precedent forecloses this conclusion, the district court had no jurisdiction to consider Make the Road's preenforcement challenge to the Designation.

For Judge Rao, this is just one of the problems with the district court's order. Judge Rao (again writing for just herself) concludes:

My colleagues conclude that Make the Road's challenge to the Designation is reviewable and that the district court had authority to issue a universal stay. Those conclusions, however, run into multiple roadblocks Congress erected in IIRIRA to "protect[] the Executive's discretion from the courts" with respect immigration policy. American-Arab AntiDiscrimination Comm., 525 U.S. at 486. First, courts cannot review the Secretary's discretionary decisions, which include the designation of aliens for expedited removal. Second, courts cannot review the policies and procedures implementing expedited removal in preenforcement challenges. Third, courts cannot enter universal injunctions or stays in preenforcement challenges. Finally, APA review and APA remedies are not available for the Designation, which is an expedited removal policy that Congress committed to the "sole and unreviewable discretion" of the Secretary.

In sum, IIRIRA forecloses judicial review of Make the Road's preenforcement challenge to the Designation, and the APA does not provide a back door for the district court's universal stay. I concur in the judgment because I agree that the Secretary's expedited removal procedures are consistent with due process and that the district court's stay must be vacated. Nevertheless, the more fundamental error lies in the district court exceeding its lawful authority and halting an immigration policy that Congress left to the discretion of the Executive Branch.

As noted above, I suspect the respondents--either the activist groups or blue-state AGs-- will quickly seek en banc review of this decision and that there is a strong likelihood that such a petition would be granted and the Trump Administration's expansion of expedited removal could again be put on hold. The D.C. Circuit, which (as a whole) is one of the more liberal courts in the nation, is developing a habit of taking decisions related to Trump Administration policies en banc if they go the Trump Administration's way. Case-in-point: On Monday the Court granted an en banc petition in In re Trump, in which a panel majority (again consisting of Judges Rao and Walker) granted a writ of mandamus putting an end to Judge Boasberg's criminal contempt proceedings investigating the Trump Administration's use of the Alien Enemies Act to deport alleged members of Tren de Agua.

Of course, should a majority of judges on the D.C. Circuit call for en banc review in Make the Road v. Mullins and re-impose the stay, the case would quickly find its way to the Supreme Court, where I suspect a majority of justices would embrace Judge Rao's views. Indeed, en banc action is likely the only way this case could get Supreme Court review. So the D.C. Circuit majority may face a choice between allowing a panel decision they don't like to stand, or risking that the panel decision (or, in this case, a concurring opinion) becomes an opinion of the Supreme Court.

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