D.C. Circuit Panel Slams District-Court Injunction Against Expedited Removal

Link to Opinion of the Court in MAKE THE ROAD NEW YORK, ET AL., APPELLEES v. CHAD F. WOLF, ACTING SECRETARY OF THE DEPARTMENT OF HOMELAND SECURITY, IN HIS OFFICIAL CAPACITY, ET AL., APPELLANTS

United States Circuit Judge Patricia Millett wrote for the majority, joined by Senior United States Circuit Judge Harry Edwards. United States Circuit Judge Neomi Rao dissented. All three Judges supported overturning the Judgement of the District Court, Rao merely dissented as to the grounds for doing so.

Link to the District Court judgement by United States District Judge Ketanji Brown Jackson.

Judge Millett’s decision leads off as follows;

MILLETT, Circuit Judge: Federal law commits to the “sole and unreviewable discretion” of the Secretary of Homeland Security the decision whether to subject certain individuals present in the United States without documentation to “expedited removal.” 8 U.S.C. § 1225(b)(1)(A)(iii)(I). In July 2019, the Secretary decided to expand the reach of the expedited removal process to its statutory limit, sweeping in all individuals without documentation who have resided in the United States for less than two years.

Three organizations whose members are covered by that expansion (“Associations”) filed suit, contending that the Secretary’s decision violated the Administrative Procedure Act (“APA”), 5 U.S.C. §§ 551 et seq., the Immigration and Nationality Act (“INA”), 8 U.S.C. §§ 1225(a)–(b), 1362, the Due Process Clause of the Fifth Amendment, U.S. CONST. 5 Amend. V, and the Suspension Clause, U.S.CONST., Art. I, § 9, cl. 2. The district court granted a preliminary injunction against the expansion based only on the APA claims, leaving the INA and constitutional claims unaddressed.

We hold that the district court properly exercised jurisdiction over the Associations’ case. But because Congress committed the judgment whether to expand expedited removal to the Secretary’s “sole and unreviewable discretion,” 8 U.S.C. § 1225(b)(1)(A)(iii)(I), the Secretary’s decision is not subject to review under the APA’s standards for agency decision making. Nor is it subject to the APA’s notice-and comment rulemaking requirements.

For those reasons, we reverse the district court’s grant of a preliminary injunction and remand for further proceedings consistent with this decision.

Judge Rao’s dissent leads off as follows:

RAO, Circuit Judge, dissenting: Citing national security and resource allocation concerns, the Secretary of Homeland Security designated additional aliens for expedited removal from our borders. See 84 Fed. Reg. 35,409 (July 23, 2019) (“Expansion Designation”). Although no alien has been removed under the new designation, several immigrant rights organizations (“plaintiffs”) brought a preenforcement challenge to the Secretary’s policy. The district court granted a nationwide preliminary injunction halting enforcement of the Expansion Designation. While the majority reverses the district court’s preliminary injunction on the merits, I would dismiss plaintiffs’ claims at the threshold. The Immigration and Nationality Act (“INA”) expressly bars the courts from reviewing the Secretary’s discretionary decisions regarding expedited removal. One of the few checks on the independent judiciary comes from Congress’s ability to set the jurisdiction of the inferior federal courts. Because the majority exercises jurisdiction over a claim that Congress explicitly withholds from our review, I respectfully dissent.

Ultimately, the panel reached the same outcome, that being that the aliens are not entitled to relief from expedited removal proceedings, which is obviously the correct conclusion.

The two Judges in the majority are both Democratic appointees, Millett by Obama and Edwards by Carter. Rao was appointed by Trump. So the result here was plainly bipartisan in nature.

I would agree with Rao’s approach. As Congress clearly stripped jurisdiction from the courts in this matter, I would have dismissed the case at the threshold.

Regardless of the approach, however, the ultimate outcome was correct.

Outcome is correct, but the two democrat judges are a perfect example of the courts usurpations. Congress stripped their jurisdiction, and they fail to acknowledge it. Power hungry judges.

The two Judges actually did, properly acknowledge that they did not have jurisdiction over the Secretary’s actions. Judge Jackson is the only Judge I will really take issue with in this case, for overstepping jurisdictional boundaries.

I am not fully satisfied with the opinion of the majority, but ultimately, the Secretary won and that is the most important point to take home.

No, not really. They declared the court properly exercised jurisdiction but that it was not reviewable under APA rulemaking and notice requirements or the INA. Meaning they could review it with a different argument. Which argument would that be?

must interpret jurisdiction-stripping statutes to mean what they say” and that federal immigration law “unambiguously strips the federal courts of jurisdiction to review” the DHS decision.

Wow…who’d have thunk that?

I’m delighted to see that two of the Judges that overrode the decision were appointed by Democrat Presidents; Obama and Carter.

yes, but they left the door open to other arguments. The door should not be open.