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:
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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