DC Appeals Court Allows Trump to Fast-Track Deportations as Litigation Proceeds
“As for whether to designate other aliens for expedited removal Congress let the Executive decide.”
In a surprising win, the U.S. Court of Appeals for the District of Columbia Circuit voted 2-1 to allow the Trump administration to fast-track deportations as litigation proceeds on the merits of the policy.
Last August, a federal judge issued a stay on the policy, claiming that potentially removing “millions of people without immigration hearings most likely violated their due process rights and risked wrongful detentions.”
The DC Court of Appeals shot down that argument, vacating the stay.
Judge Justin R. Walker, a Trump appointee, wrote (emphasis mine):
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.
Judge Neomi Rao, another Trump appointee, emphasized that point in her concurring opinion (emphasis mine):
When reforming immigration law in 1996 Congress a created 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.
Walker also noted that Congress “provided limited judicial review of the expedited-removal system itself.” Any challenges must appear before the DC Appeals Court and only “within the time limits set by the statute.”
Therefore, the judicial review is narrow:
- Through habeas corpus, a court may consider only whether the petitioner is an alien, whether an expedited removal order was issued and whether the petitioner has lawful permanent resident refugee or asylee status
- Courts may not review the underlying determination of inadmissibility or the credible fear determination
Therefore, a broad stay on the policy does not fit what Congress enacted.
The majority found that the plaintiffs, Make the Road, did not show any due process violations:
There is no evidence that the Designation or Huffman Memorandum secretly restricts the right to notice and an opportunity to respond that they command officers to withhold information that they prohibit aliens from raising continuous presence or any other defense or that they limit the time or opportunity afforded to aliens after a removal order issues. If any of those things are happening they are not the result of the Designation or Huffman Memorandum. Those directives are silent on these matters and a directive’s silence cannot command authorize or structurally ensure constitutional violation.
Make the Road claimed that DHS did not offer proper notice or an opportunity for the people to be heard.
Well, the majority could not find any “authority holding that due process requires the government to instruct individuals on available defenses or exemptions.”
“The constitutional requirement is notice of the action the government is taking and the grounds for it, plus an opportunity to respond,” explained Walker. “It is not a requirement that the government explain how the individual might prevail.”
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Comments
Finally some good news. Get them out. Like hell we have to make it easy for them
Finally getting some significant appellate victories on immigration front. The District Judges going along with ideological/emotional claims of plaintiffs will continue but with each appellate victory the type/scope of those claims which can be sustained is narrowed.
Note that the constitution does require that much, and that a memorandum that did “secretly restrict the right to notice and an opportunity to respond, [or] command officers to withhold information, [or] prohibit aliens from raising continuous presence or any other defense, [or] limit the time or opportunity afforded to aliens after a removal order issues”, would be unlawful. The court acknowledged that these things may very well be happening, and if so they can and should be challenged, but they are not the result of this memorandum as the plaintiffs alleged.
Question: Was the two-year limit tolled while this litigation was proceeding, or did anyone who arrived here before Jun-24-2024 just get a free pass?
By entering a country illegally, an alien tacitly agrees to the rules governing his presence there, just as an alien legally in the country agrees to the rules imposed on his presence. An alien can avoid being held to limited due process rights by remaining outside of the jurisdiction of the country that imposes such limited rights on aliens. By coming to a country that treats aliens this way, the aliens voluntarily surrender their rights to full “due process.” SCOTUS ruled a long time ago that persons may voluntarily surrender their rights. Miranda led to the now-famous “Miranda warning” that recognizes this concept.
This is not correct at all. The constitution says what people’s rights are, and the government cannot make rules that limit those rights and then claim that people have “tacitly agreed” to those limits. Rules that violate the constitution aren’t rules, and no one is bound by them or required to accept them.
This decision is merely about whether this particular memorandum actually violates those rights or not. The court found that nothing in its text does that, so if someone within the government is violating people’s rights that’s on them; they’re doing it on their own initiative, not because of the memorandum, so those violations need to be addressed directly. Which means gather evidence that so-and-so is doing this-and-that, and sue him, or sue the government for which he acts, but don’t bring up an irrelevant memorandum. If he claims to be acting on the memorandum’s authority, challenge him to show where it says that.