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.