Make The Road New York v. Kristi Noem

United States Court of Appeals

FOR THE DISTRICT OF COLUMBIA CIRCUIT

____________

No. 25-5320 September Term, 2025

1:25-cv-00190-JMC

Filed On: November 22, 2025

Make The Road New York, et al.,

Appellees

v.

Kristi Noem, Secretary of the U.S.

Department of Homeland Security, in her

official capacity, et al.,

Appellants

BEFORE: Millett*, Rao**, and Childs*, Circuit Judges

ORDER

Upon consideration of the emergency motion for an administrative stay and a

stay pending appeal, the opposition thereto, and the reply, it is

ORDERED that the motion for an administrative stay be denied and the motion

for a stay pending appeal be granted in part and denied in part. For the reasons stated

in the attached statement of Circuit Judges Millett and Childs, the motion for a stay

pending appeal of the district court=s order is denied except to the extent that the district

court=s order required any changes to the procedures for determining credible fear of

harm upon removal for those individuals who qualify for expedited removal.

Per Curiam

FOR THE COURT:

Clifton B. Cislak, Clerk

BY: /s/

Michael C. McGrail

Deputy Clerk

* A statement of Circuit Judges Millett and Childs is attached.

** A dissenting statement of Circuit Judge Rao is attached.

Statement of MILLETT and CHILDS, Circuit Judges: As a

general matter, federal law affords individuals present in the

United States whom the government charges as being

removable the right to a hearing before an immigration judge,

whose decision is then subject to review by the Board of

Immigration Appeals and then by a federal court of appeals.

See 8 U.S.C. §§ 1229, 1229a, 1252; 8 C.F.R. §§ 1003.1–

1003.3. At the hearing before the immigration judge,

individuals can demonstrate a legal right to remain in the

United States or can seek asylum, withholding of removal,

Convention Against Torture withholding, or any other relevant

protection against removal. See 8 U.S.C. § 1229a; 8 C.F.R.

§§ 208.16–208.17, 1208.4, 1208.13, 1208.16–1208.17,

1240.10–1240.11; see also Johnson v. Guzman Chavez, 141 S.

Ct. 2271, 2280–2283 (2021) (discussing the process).

In the Illegal Immigration Reform and Immigrant

Responsibility Act of 1996 (“IIRIRA”), Congress authorized

(initially) the Attorney General and (now) the Secretary of the

Department of Homeland Security to apply “Expedited

Removal” procedures to certain individuals who have been

unlawfully present in the United States for less than two

continuous years. 8 U.S.C. § 1225(b)(1)(A)(iii)(II); see 6

U.S.C. § 557 (transferring this authority from the Attorney

General to the Department of Homeland Security).1

1

The statute excludes from Expedited Removal those persons

who have “affirmatively shown, to the satisfaction of an immigration

officer, that [they] ha[ve] been physically present in the United States

continuously for the [preceding] 2-year period[.]” 8 U.S.C.

§ 1225(b)(1)(A)(iii)(II). For ease of reference, this opinion generally

refers to that category as individuals who have been continuously

present for at least two years, since the central issue in this case is

whether the Department’s current procedures afford them a

reasonable opportunity to make the affirmative showing of

continuous presence on which the exception is predicated.

2

“Expedited removal lives up to its name.” Make the Road

N.Y. v. Wolf, 962 F.3d 612, 619 (D.C. Cir. 2020) (“Make the

Road I”). If a single immigration officer determines that a

person is subject to Expedited Removal, that “officer shall

order the alien removed * * * without further hearing or

review[.]” 8 U.S.C. § 1225(b)(1)(A)(i). But if that person

articulates “an intention to apply for asylum” or a “fear of

persecution[,]” she will be referred for additional processing

before an asylum officer and, potentially, an immigration judge

to determine whether she has a “credible fear of persecution[.]”

See id. § 1225(b)(1)(A)(i), (b)(1)(B)(ii) & (iii). The credible-

fear review by an immigration judge is designed to “be

concluded as expeditiously as possible, to the maximum extent

practicable within 24 hours[.]” Id. § 1225(b)(1)(B)(iii)(III).

With limited exceptions, no administrative or judicial review

follows. See id. §§ 1225(b)(1)(B)(iii)(III) & (b)(1)(C),

1252(a)(2)(A)(iii).

For decades, the government limited its application of

Expedited Removal to (1) persons who, within fourteen days

of arriving in the United States, are encountered within 100 air

miles of a land border, and (2) persons arriving by sea. See

Designating Aliens for Expedited Removal, 69 Fed. Reg.

48,877 (Aug. 11, 2004) (“2004 Designation”); Notice

Designating Aliens Subject to Expedited Removal Under

Section 235(b)(1)(A)(iii) of the Immigration and Nationality

Act, 67 Fed. Reg. 68,924 (Nov. 13, 2002) (“2002

Designation”).

Officials have long expressed concern about applying

Expedited Removal more broadly because of the logistical

barriers to ensuring Expedited Removal applies—as statutorily

required—only to persons who have not shown at least two

years of continuous presence in the United States. See 2004

Designation, 69 Fed. Reg. at 48,879 (explaining that the

3

Department will “implement only that portion of the authority

granted by [IIRIRA] that bears close temporal and spatial

proximity to illegal entries at or near the border”); Inspection

and Expedited Removal of Aliens, 62 Fed. Reg. 10,312, 10,313

(March 6, 1997) (“1997 Designation”) (“[A]pplication of the

expedited removal provision to aliens already in the United

States will involve more complex determinations of fact and

will be more difficult to manage[.]”); Rescission of the Notice

of July 23, 2019, Designating Aliens for Expedited Removal,

87 Fed. Reg. 16,022, 16,024 (March 21, 2022) (“2022

Designation”) (noting that expanding Expedited Removal

“would involve complex new challenges for the ICE

workforce” and “would require time- and fact-intensive

training for all current officers, agents, and supervisors”).

On January 21, 2025, the Acting Secretary of Homeland

Security extended Expedited Removal nationwide to

encompass all persons encountered anywhere in the United

States who, upon detention, cannot prove their continuous

presence in the United States during the preceding two years.

Designating Aliens for Expedited Removal, 90 Fed. Reg.

8,139, 8,140 (Jan. 24, 2025) (effective date Jan. 21, 2025)

(“Expansion Order”). That Expansion Order extended the

Expedited Removal scheme to a new and far-reaching

geographic area that sweeps in major population centers such

as Atlanta, Chicago, Dallas, Los Angeles, New York City, and

St. Louis.

The Expansion Order, as well as guidance issued by the

Acting Secretary two days later, decided that Department

personnel should apply across the United States the same

truncated systems and procedures the Department had been

applying at the sea coasts and within 100 air miles of the land

border. See Dep’t of Homeland Sec., Memorandum from

Acting Secretary Benjamine C. Huffman on Guidance

4

Regarding How to Exercise Enforcement Discretion (Jan. 23,

2025) (“Huffman Memorandum”). Those procedures ask

detained individuals only if they have a fear of harm if removed

from the United States. See 8 C.F.R. § 235.3(b)(2)(i);

Steinberg Decl. at 94, ECF No. 50-23 (Form I-867AB). They

do not ask if the individual has been present in the United States

for two or more years. Nothing in the record shows that

detained individuals are afforded an opportunity to dispute

whether they statutorily qualify for Expedited Removal or to

obtain evidence for submission to immigration officers of their

two-year continuous presence in the United States before their

removal. Nor do the procedures provide a process for

immigration officers to consider or review a claim of

continuous two-year presence. Compare 8 C.F.R.

§ 235.3(b)(4), with id. § 208.30 (process for credible-fear

evaluation). Quite the opposite. The district court found that

individuals subjected to Expedited Removal are generally

ordered removed “within a few days, if not hours” of

encountering an immigration officer. Make the Road N.Y. v.

Noem, No. 25-cv-190, 2025 WL 2494908, at *3 (D.D.C.

Aug. 29, 2025).

Make the Road New York, an advocacy organization with

members subject to and directly affected by the Expansion

Order, filed suit challenging the systems and procedures

adopted to implement the expanded Expedited Removal

program on statutory and constitutional grounds. The district

court preliminarily stayed the effective dates of the Expansion

Order and Huffman Memorandum pending litigation on the

ground that they deprive detained individuals of constitutional

due process. The Department appealed and seeks a stay of the

district court’s order pending appeal.

We grant the government’s motion in part and deny it in

part. The Department is likely to succeed in showing that the

5

systems and procedures employed to evaluate detained

individuals’ claims of credible fear are constitutionally

sufficient. But the Department is not likely to succeed in

showing that its systems and procedures are constitutionally

adequate to provide detained individuals an opportunity to

demonstrate their ineligibility for removal on the ground that

they have resided in the United States continuously for two or

more years, or to otherwise ensure that Expedited Removal

operates within its statutorily delimited bounds.

For those reasons, we deny the Department’s motion for a

stay pending appeal of the district court’s order suspending the

effective dates of those portions of the Expansion Order and

Huffman Memorandum that establish the system for

determining eligibility for Expedited Removal. We grant a stay

to the extent that the district court’s order required any changes

to the procedures for determining credible fear of harm upon

removal for those individuals who qualify for Expedited

Removal.

I

A

When Congress enacted IIRIRA in 1996, it overhauled

immigration enforcement by establishing two distinct

procedures for removing individuals found to be unlawfully

present.

The default mechanism for removal is known as “Section

240” proceedings, named for the section of the Act in which it

appears. These proceedings are formal, adversarial hearings

before an immigration judge, an employee of the Department

of Justice who must be an attorney and who bears an

affirmative duty to develop the record. 8 U.S.C. § 1229a(a)(1),

6

(b)(1); 8 C.F.R. § 1003.10(a). The individual charged as

removable may retain counsel, present evidence, examine

witnesses, and challenge the government’s evidence. 8 U.S.C.

§ 1229a(b)(4)(B). Any adverse decision is subject to

administrative and judicial review. 8 C.F.R. §§ 1240.15,

1003.1; 8 U.S.C. § 1252.

Congress also created a far more abbreviated process

called Expedited Removal. 8 U.S.C. § 1225(b)(1). The

government can apply Expedited Removal to two groups of

individuals. First, Expedited Removal applies to persons who

are “arriving in the United States[.]” 8 U.S.C.

§ 1225(b)(1)(A)(i). Department regulations define “arriving”

as “seeking transit through the United States at a port-of-entry,

or an alien interdicted in international or United States

waters[.]” 8 C.F.R. § 1.2. Second, the Secretary can designate

for Expedited Removal “any or all aliens” who have not been

admitted or paroled and have not “affirmatively shown” to an

immigration officer’s satisfaction that they have been

“physically present in the United States continuously for the 2-

year period immediately prior to the date of the determination

of the inadmissibility.” 8 U.S.C. § 1225(b)(1)(A)(iii)(II); see

also 6 U.S.C. § 557 (transferring this designation authority

from the Attorney General to the Department of Homeland

Security).

Unlike Section 240 proceedings, Expedited Removal

occurs before an immigration officer, not an immigration

judge. 8 U.S.C. § 1225(b)(1)(A). The immigration officer

interviews the individual to determine “identity, alienage, and

inadmissibility,” as well as whether the individual intends to

apply for asylum, fears persecution or torture, faces harm from

removal, or fears returning to their country of origin. 8 C.F.R.

§ 235.3(b)(2)(i), (b)(4). The officer informs the individual of

7

the importance of sharing any fears of persecution, harm, or

torture upon removal, and then asks only four questions:

1. Why did you leave your home country or country

of last residence?

2. Do you have any fear or concern about being

returned to your home country or being removed from

the United States?

3. Would you be harmed if you are returned to your

home country or country of last residence?

4. Do you have any questions or is there anything else

you would like to add?

Steinberg Decl. at 94, ECF No. 50-23. If the person seeks

admission at a port of entry, the officer must decide whether

the individual is inadmissible for fraud or for lacking valid

entry documents. 8 U.S.C. § 1225(b)(1)(A)(i)–(ii); id.

§ 1182(a)(6)(C), (a)(7). Unless the individual claims to have

United States citizenship, lawful permanent residence, refugee

status, or asylum, or expresses an intention to apply for asylum

or a fear of persecution, see id. § 1225(b)(1)(A)(i), (b)(1)(C),

the officer “shall” order removal “without further hearing or

review[,]” id. § 1225(b)(1)(A)(i). The safeguards are minimal.

The individual is detained and is not offered an opportunity to

secure counsel or to gather relevant evidence. 8 C.F.R.

§ 235.3(b)(2)(i)–(ii). The officer’s determination is reviewed

only on paper by a supervisor and is not subject to

administrative appeal. Id.

If an intention to apply for asylum or a fear of persecution

is expressed, the case is referred for a “credible fear” interview.

8 U.S.C. § 1225(b)(1)(A)(i)–(ii). At the interview, the

applicant must demonstrate a “significant possibility” of

establishing eligibility for asylum. 8 U.S.C.

§ 1225(b)(1)(B)(v). Detention generally continues throughout

8

the process, 8 C.F.R. § 235.3(b)(4)(ii), and the interview is

often conducted by telephone even though credibility is

commonly a central question. 8 U.S.C. § 1225(b)(1)(B)(v).

Those who make the required endangerment showing are

placed into regular Section 240 proceedings. Id.

§ 1225(b)(1)(A)(ii), (b)(1)(B)(ii). Those who do not may seek

limited review by an immigration judge, but that hearing is

narrow in scope and not subject to further administrative or

judicial review. Id. §§ 1225(b)(1)(B)(iii)(II)–(III),

1252(a)(2)(A)(iii).

The regulations themselves offer only a few additional

opportunities for an individual to show their ineligibility for

Expedited Removal. During the initial interview, a person may

claim to have been lawfully admitted for permanent residence,

admitted as a refugee, granted asylum, or to be a U.S. citizen.

8 C.F.R. § 235.3(b)(5)(i). If the officer can verify any of those

claims, the individual will not be removed. Id.

§ 235.3(b)(5)(ii)–(iv). If the officer cannot verify the claim but

the individual makes it under penalty of perjury, the case must

be referred to an immigration judge. Id. § 235.3(b)(5)(iv). The

regulations also require that individuals be given a “reasonable

opportunity” to demonstrate that they were admitted or paroled

following inspection at a port of entry. Id. § 235.3(b)(6). If

they establish lawful admission or parole, the agency then

determines whether that status “has been, or should be,

terminated.” Id. If ineligibility is not established, the

individual “will be ordered removed pursuant to” the Expedited

Removal provision. Id.

A central feature of the Expedited Removal process is the

near-total absence of judicial review. Congress provided that

“no court shall have jurisdiction to review” Expedited Removal

determinations except as expressly permitted under a narrow

9

set of provisions. 8 U.S.C. § 1252(a)(2)(A). Under subsection

(e), two limited forms of judicial review are available.

First, an individual may file a habeas petition, but the

statute confines that proceeding to reviewing whether the

petitioner (1) is a noncitizen, (2) was ordered removed under

the Expedited Removal provision, and (3) can prove lawful

admission, refugee status, or a grant of asylum. Id.

§ 1252(e)(2).

Second, individuals may bring challenges to the validity of

the statute itself or to any regulation, policy, or written directive

implementing it. 8 U.S.C. § 1252(e)(3)(A). These

“[c]hallenges on validity of the system” may contest either the

constitutionality of the statute or whether a regulation, policy,

or directive is inconsistent with the law or Constitution. Id.

Such actions must be filed within sixty days of implementation,

id. § 1252(e)(3)(B), may not proceed as class actions, id.

§ 1252(e)(1)(B), and must be filed in the United States District

Court for the District of Columbia, id. § 1252(e)(3)(A).

B

In IIRIRA, Congress authorized the Secretary of

Homeland Security to extend Expedited Removal to

individuals who have not been admitted or paroled into the

United States, and who have not shown continuous presence in

the United States for at least two years. 8 U.S.C.

§ 1225(b)(1)(A)(iii)(I)–(II). Yet for more than two decades,

the authority to apply Expedited Removal far beyond the land

and sea borders lay dormant as successive administrations

declined to invoke it to its full extent. See Steinberg Decl. at

226, ECF No. 50-23.

10

That caution was deliberate. The Executive Branch has

long recognized that applying Expedited Removal away from

the border area raised serious concerns about accuracy and

administrability. See Inspection and Expedited Removal of

Aliens, 62 Fed. Reg. 10,312, 10,313 (Mar. 6, 1997)

(“[A]pplication of the expedited removal provisions to aliens

already in the United States will involve more complex

determinations of fact and will be more difficult to

manage[.]”). Determining when and how a person entered the

United States is far more complex in the interior than at a port

of entry. Acknowledging that reality, the Secretary initially

confined the process to “arriving” individuals—those seeking

admission or transit at a port of entry or interdicted at sea. Id.

at 10,312–10,313, 10,330. The agency even rejected a proposal

to include individuals present for less than twenty-four hours,

citing the difficulty of establishing unlawful entry or the time

of arrival. Id. at 10,313.

The program expanded only gradually from there. In

2002, the Department of Homeland Security extended

Expedited Removal to foreign individuals who arrived by sea

and had been in the country for less than two years. See Notice

Designating Aliens Subject to Expedited Removal Under

Section 235(b)(1)(A)(iii) of the Immigration and Nationality

Act, 67 Fed. Reg. 68,924, 68,925–68,926 (Nov. 13, 2002)

(“2002 Designation”). Two years later, the agency broadened

the policy again to include foreign individuals encountered

within fourteen days of entry and “within 100 air miles of any

U.S. international land border.” See Designating Aliens for

Expedited Removal, 69 Fed. Reg. 48,877, 48,879 (Aug. 11,

2004). Apart from a limited expansion covering certain Cuban

nationals, that 2004 designation defined the scope of Expedited

Removal for the next fifteen years. See Designating Aliens for

Expedited Removal, 84 Fed. Reg. 35,409, 35,413 (July 23,

2019) (“2019 Designation”); see also Eliminating Exception to

11

the Expedited Removal Authority for Cuban Nationals

Encountered in the United States or Arriving by Sea, 82 Fed.

Reg. 4,902, 4,904 (Jan. 17, 2017).

In 2019, the Department sought to exercise the full

statutory authority for the first time. It authorized Expedited

Removal for all covered individuals present in the United

States for less than two years. See 84 Fed. Reg. at 35,413–

35,414. But that expansion proved short-lived. Because of

repeated changes in regulatory guidance and litigation

challenges, the Designation was in effect for only roughly

seven months before it was rescinded. See Rescission of the

Notice of July 23, 2019, Designating Aliens for Expedited

Removal, 87 Fed. Reg. at 16,022, 16,022 (March 21, 2022).2

2

See Rescission of the Notice of July 23, 2019, Designating

Aliens for Expedited Removal, 87 Fed. Reg. 16,022, 16,022 (March

21, 2022); see also id. at 16,024 (“The fact that the expanded

expedited removal authority [under the 2019 Designation] was used

so rarely by ICE officers during the approximately one year that it

was available to them reflects the operational complexities and

limited utility that it presented in practice.”); Make the Road N.Y. v.

McAleenan, 405 F. Supp. 3d 1, 72 (D.D.C. 2019) (enjoining the 2019

Designation on September 27, 2019); Make the Road I, 962 F.3d at

618 (reversing and remanding the grant of preliminary injunction on

June 23, 2020); Mandate of USCA, Make the Road N.Y. v.

McAleenan, 19-cv-2369 (D.D.C. Sept. 30, 2020), ECF No. 49

(mandate in Make the Road I issuing on September 30, 2020); Dep’t

of Homeland Sec., Memorandum from Senior Official Tony H.

Pham Performing the Duties of the Director on Superseding

Implementation Guidance for July 2019 Designation of Aliens

Subject to Expedited Removal (Oct. 2, 2020) (ICE guidance limiting

the application of the 2019 Designation to individuals who had

arrived before that designation’s publication); Exec. Order No.

14010, 86 Fed. Reg. 8,267 (Feb. 2, 2021) (directing the Department

to “review and consider whether to modify, revoke, or rescind the

12

For nearly two decades, then, Expedited Removal

remained a tool deployed almost exclusively at the sea coasts

and borders and their vicinity.

That longstanding approach ended on January 21, 2025,

when Acting Secretary Benjamine Huffman issued a new

designation authorizing Expedited Removal for foreign

individuals arrested anywhere in the United States who could

not show “to the satisfaction of an immigration officer”

continuous presence for the preceding two years. Expansion

Order, 90 Fed. Reg. at 8,139. Two days later, the Department

issued implementing guidance instructing officers to consider

Expedited Removal for any individual “amenable” to it.

Huffman Memorandum at 2.

C

On March 22, 2025, Make the Road New York, a

nonprofit, membership-based organization serving immigrant

and working-class communities—joined with Mary and John

Doe to challenge the Expansion Order and Huffman

Memorandum on statutory and due process grounds. Amended

Complaint ¶¶ 10, 11, ECF No. 27 (“Am. Compl.”). Make the

Road provides legal, educational, health, and community

services to low-income and immigrant New Yorkers. Fontaine

Decl. ¶¶ 2, 7, ECF No. 50-2. Its self-described mission is “to

build the power of immigrant and working-class communities

to achieve dignity and justice.” Id. ¶ 3. With more than 28,000

members in the New York area, Make the Road sued on behalf

of its members, which include individuals who have been

[2019] designation]”); Response to Order to Show Cause, Make the

Road N.Y. v. McAleenan, 19-cv-2369 (D.D.C. Feb. 4, 2021), ECF

No. 75 (Department representing to the district court on February 4,

2021 that it was no longer enforcing the 2019 designation).

13

continuously present in the United States for more than two

years, as well as some who have been here for more than

fourteen days but less than two years. In that way, Make the

Road represents the breadth of individuals adversely affected

by the Expansion Order and Huffman Memorandum. Am.

Compl. ¶¶ 12, 13, 102.

The individual plaintiffs, Mary and John Doe, have been

directly affected by the policy’s new reach. A mother and son

who lawfully entered the United States through a port of entry

and built a life here over the course of a decade were

nevertheless removed under the new policy. Am. Compl.

¶¶ 12, 13. The district court noted that:

While detained, Mary and John were not allowed to

make any calls or contact an attorney. By 9 AM the

next day, they were issued a Notice and Order of

Expedited Removal. They were never asked or given

the option to sign [their] deportation orders, and were

instead taken to a border bridge in a car and told to

walk across.

Make the Road N.Y., 2025 WL 2494908, at *7 (formatting

modified). Their experience, Make the Road contends, is

emblematic of a broader pattern in which the Department

applied Expedited Removal to individuals to whom Expedited

Removal cannot, under IIRIRA, apply. See Am. Compl. ¶¶ 12,

13, 102.

The district court found that the Department did not

initially implement the Expansion Order and Huffman

Memorandum on a large scale. Make the Road N.Y., 2025 WL

2494908, at *5. But beginning in May 2025, “enforcement

efforts significantly ramped up.” Id. The agency set a goal of

“3,000 immigration arrests each day[,]” including many

14

individuals already in regular removal proceedings—often

those pursuing asylum or other relief. Id. To achieve that end,

the Department has repeatedly carried out arrests at

immigration hearings. Id. The pattern is consistent: The

Department first moves orally—and without advance notice—

to terminate the individual’s pending Section 240 proceedings.

Id. The moment those proceedings are dismissed, agents seize

the individual at the courthouse. They then place the person

into Expedited Removal. Id. The Department has also

launched workplace raids nationwide, describing them as part

of a “new phase of the Trump administration’s immigration

crackdown.” Id. at *6.

Faced with the accelerating enforcement campaign, Make

the Road moved on June 10, 2025, to stay the Expansion Order

and Huffman Memorandum under the Administrative

Procedure Act (“APA”), 5 U.S.C. § 705. See Motion to

Postpone Effective Date of Agency Action, ECF. No. 50, at 1.

Section 705 authorizes district courts to “issue all necessary

and appropriate process to postpone the effective date of an

agency action or to preserve status or rights pending conclusion

of the review proceedings.” 5 U.S.C. § 705.

In its motion, Make the Road argued, among other things,

that the implementation of the Designation violates the Due

Process Clause of the Fifth Amendment. Motion to Postpone

Effective Date of Agency Action, ECF No. 50, at 13. The

district court granted Make the Road’s motion on that ground

and issued a stay postponing the effective dates of the

Expansion Order and Huffman Memorandum. Make the Road

N.Y., 2025 WL 2494908, at *23. The district court concluded

that individuals subject to Expedited Removal possess a

substantial liberty interest in remaining in the United States. Id.

at *13–18. It further found that the risk of erroneous

deprivation under the policy was unacceptably high. Id. at

15

*14–18. The Department’s procedures, the court explained,

were “woefully inadequate” for determining whether an

individual had been continuously present for two years. Id. at

*16. The district court also found that the Department’s

procedures were similarly deficient in ensuring that individuals

expressing a fear of return were referred for credible fear

interviews, and in guaranteeing that those found to have a

credible fear were placed into full removal proceedings. Id. at

*14–15. The district court did not address Make the Road’s

other claims because it found that Make the Road would likely

succeed on the merits of its due process claim. Id. at *9 n.13.

Finally, the court held that the Department’s interest in

summary removals could not outweigh the minimal burden of

implementing “modest procedural safeguards”—such as

asking about continuous presence, allowing individuals to

contest removal, or permitting them to seek assistance from

counsel or third parties in gathering evidence. Make the Road

N.Y., 2025 WL 2494908, at *19. The Department now asks

this court to stay the district court’s order pending appeal.

II

To obtain a stay pending appeal of the district court’s stay

order, the Department must (1) make a “strong showing that

[it] is likely to succeed on the merits” of the appeal, (2)

demonstrate that it is likely to be “irreparably injured” absent a

stay, (3) show that the issuance of a stay will not “substantially

injure the other parties interested in the proceeding[,]” and (4)

establish that the “public interest” favors a stay. Nken v.

Holder, 556 U.S. 418, 434 (2009) (quoting Hilton v.

Braunskill, 481 U.S. 770, 776 (1987)). The likelihood of

success prong includes establishing the trial and appellate

courts’ jurisdiction. See Make the Road I, 962 F.3d at 623.

16

We hold that that this court likely has appellate jurisdiction

under 28 U.S.C. § 1292(a)(1), but the question is difficult under

the factors outlined by the Supreme Court in Carson v.

American Brands, Inc., 450 U.S. 79 (1981). The Department

is unlikely to succeed in showing that Make the Road lacks

associational standing, or that the time for filing set out at 8

U.S.C. § 1252(e)(3)(B) bars this suit. In addition, the

prohibition in 8 U.S.C. § 1252(f)(1) on issuing injunctive relief

in certain immigration lawsuits likely does not apply to the

district court’s temporary Section 705 stay of the Expansion

Order’s and Huffman Memorandum’s effective dates.

III

Together, the Department’s Expansion Order and Huffman

Memorandum contain three programmatic choices, two of

which are relevant to this stay motion.

First, the Expansion Order extended the category of

persons eligible for Expedited Removal to include all “[a]liens

who did not arrive by sea, who are encountered anywhere in

the United States [and] * * * who have been continuously

present in the United States for less than two years.” Expansion

Order, 90 Fed. Reg. at 8,139. That judgment to expand the

scope of Expedited Removal, by itself, is committed to agency

discretion, Make the Road I, 962 F.3d at 618, and is not at issue

here.

Second, the Department made the decision to apply only its

preexisting procedures, formulated for application within 100

air miles of a land border or to those arriving on the sea, to

determine whether an individual found anywhere in the United

States is statutorily eligible for Expedited Removal, even

though those procedures do not ask about or consider the length

of an individual’s continuous residence. See Expansion Order,

17

90 Fed. Reg. at 8,140; Huffman Memorandum at 2. This

opinion refers to those procedures as the “Eligibility System.”

Third, the Department of Homeland Security elected to

apply its existing credible-fear screening procedures for

individuals covered by the Expansion Order and found to be

statutorily eligible for Expedited Removal. See Expansion

Order, 90 Fed. Reg. at 8,140; Huffman Memorandum at 2. We

shall refer to those procedures as the “Credible Fear

Procedures.”

But before analyzing the likely merits of the Department’s

position, we must address five threshold procedural issues.

A

Although Make the Road has not contested our appellate

jurisdiction over the Department’s stay application, we have an

“independent obligation” to address our jurisdiction. New

Jersey v. EPA, 989 F.3d 1038, 1045 (D.C. Cir. 2021) (citations

omitted).

Generally, this court’s jurisdiction over appeals from

district court judgments is limited to those courts’ “final

decisions[.]” 28 U.S.C. § 1291. There is an exception to that

requirement of finality for “interlocutory orders * * * granting,

continuing, modifying, refusing or dissolving injunctions, or

refusing to dissolve or modify injunctions[.]” 28 U.S.C.

§ 1292(a)(1). While that statutory language focuses on review

of injunctions, the Supreme Court and this court have extended

its reach to include district court orders that have a “practical

effect” analogous to the granting or denying of an injunction.

Carson, 450 U.S. at 83; see Salazar ex rel. Salazar v. District

of Columbia, 671 F.3d 1258, 1261–1262 (D.C. Cir. 2012).

18

To establish a qualifying “practical effect,” the

Department must show that the order “might have a serious,

perhaps irreparable consequence” and “can be effectually

challenged only by immediate appeal.” Carson, 450 U.S. at 84

(formatting modified); see A.A.R.P. v. Trump, 145 S. Ct. 1364,

1367 (2025) (citing Carson, 450 U.S. at 84); see also A.A.R.P.,

145 S. Ct. at 1367 (“A district court’s inaction in the face of

extreme urgency and a high risk of ‘serious, perhaps

irreparable,’ consequences may have the effect of refusing an

injunction.”) (citation omitted).

This court has never considered whether the “practical

effects” aspect of Section 1292(a)(1)’s grant of appellate

jurisdiction applies to Section 705 stays under the APA, 5

U.S.C. § 705, and neither party briefed the issue. While the

question is analytically close and difficult, we conclude at this

preliminary juncture that the Department is likely to establish

that this court has appellate jurisdiction, for three reasons.

First, for the vast majority of Section 705 stays,

Section 1292(a)(1) would provide the only avenue for appellate

review. While Congress vested courts with the authority to

enter stays of agency action under Section 705 of the APA,

nothing in that Act provides for appellate review of such

orders, which is unsurprising since the Act itself “is not a

jurisdiction-conferring statute.” Trudeau v. FTC, 456 F.3d

178, 183 (D.C. Cir. 2006). Nor would a stay like this one,

which just preserves the parties’ relative positions pending

litigation based on a preliminary assessment of the merits, be

likely to qualify as an appealable collateral order. See Swint v.

Chambers County Comm’n, 514 U.S. 35, 41–42 (1995) (to

qualify for appeal, a collateral order must, among other things,

“resolve important questions separate from the merits”) (citing

Cohen v. Beneficial Indus. Loan Corp., 337 U.S 541, 546

19

(1949)); see also Mohawk Indus., Inc. v. Carpenter, 558 U.S.

100, 106–107 (2009).

Interlocutory appeal under 28 U.S.C. § 1292(b) appears to

be of no help either because it requires, among other things, the

district court’s order to have addressed a “controlling question

of law[,]” the resolution of which would “materially advance

the ultimate termination of the litigation[.]” The decision to

enter a Section 705 stay only tentatively forecasts, rather than

resolves, a controlling question of law, and review of it would

be unlikely to materially advance the conclusion of litigation

given that the appellate court would likely review only the

decision to enter the stay in the first place.

In addition, it would be quite difficult to obtain review of a

Section 705 stay under the All Writs Act’s mandamus standard,

28 U.S.C. § 1651, not only because of the stringent and

exceptional limitations on that form of relief, but also because

appellate review at the end of the district court litigation would

remain an adequate alternative avenue for relief in almost all

cases. See In re National Nurses United, 47 F.4th 746, 752–

753 (D.C. Cir. 2022).

Because nothing in the APA suggests that Congress meant

to immunize Section 705 stays from review—and we would

not presume such intent without clearer indication—the

“practical effects” doctrine under Section 1292(a)(1) seems to

be the most appropriate vehicle for reviewing the district

court’s entry of such an order.

Second, the Supreme Court in Carson held that a “practical

effects” order can be appealed only if it “might have a serious,

perhaps irreparable consequence,” and “can be effectually

challenged only by immediate appeal.” 450 U.S. at 84 (internal

quotation marks omitted); see also A.A.R.P, 145 S. Ct. at 1367.

20

In assessing jurisdiction, this court generally assumes that the

party invoking the court’s jurisdiction will succeed on the

merits before this court. Cf. Center for Regulatory

Reasonableness v. EPA, 849 F.3d 453, 454 n.1 (D.C. Cir. 2017)

(noting that this court “generally will assume the merits” when

analyzing jurisdiction); Tanner-Brown v. Haaland, 105 F.4th

437, 445 (D.C. Cir. 2024) (“[W]e must consider standing

separately from the merits by assuming that the plaintiff will

ultimately prevail on her legal theory.”).

The Department argues in seeking a stay that the district

court’s order materially interferes with its enforcement of the

immigration laws. See Dep’t Stay Mot. 25. If we assume—for

purposes of establishing jurisdiction only—that the

Department will prevail on its appeal, then its inability to

implement a law-enforcement statute “might have a serious

* * * consequence” for purposes of the second prong of the

Carson test, 450 U.S. at 84; see Trump v. CASA, Inc., 145 S.

Ct. 2540, 2562 (2025) (citing Maryland v. King, 567 U.S. 1301,

1303 (2012) (Roberts, C.J., in chambers)).3

The more difficult question is whether the third Carson

factor—a showing that the legal issue can be effectually

challenged only by immediate appeal, Carson, 450 U.S. at

84—has been met. To the extent that factor echoes the Cohen

and Mohawk requirement that later appellate review would be

unavailable or that delaying review “would imperil ‘a

substantial public interest’ or ‘some particular value of a high

order[,]’” Mohawk Indus., 558 U.S. at 107 (quoting Will v.

Hallock, 546 U.S. 345, 352–353 (2006)), there is a substantial

3

Our assumption that the Department will prevail in its appeal

pertains to our jurisdictional analysis only. The Department still

must show irreparable harm to obtain a stay pending appeal. See

Section V, infra.

21

question whether that is met in this case, especially since the

Department did not argue the issue. See id. at 107 (“That a

ruling may burden litigants in ways that are only imperfectly

reparable by appellate reversal of a final district court judgment

* * * has never sufficed.”) (quoting Digital Equip. Corp. v.

Desktop Direct, Inc, 511 U.S. 863, 872 (1994)); Digital Equip.

Corp., 511 U.S. at 872 (“[T]he mere identification of some

interest that would be ‘irretrievably lost’ has never sufficed to

meet the third Cohen requirement.”) (citation omitted).

That said, the Supreme Court’s recent decision granting

review of the denial of a stay in another immigration removal

case seemingly combined the “serious, perhaps irreparable

consequences” prong and the imperative of immediate appeal

in a manner that arguably supports jurisdiction here. A.A.R.P.,

145 S. Ct. at 1367.

Third, we note that three of our sister circuits have found

Section 705 stays to be appealable under Section 1292(a)(1)’s

“practical effects” doctrine under certain circumstances. See,

e.g., Immigrant Defs. Law Ctr. v. Noem, 145 F.4th 972, 984

(9th Cir. 2025) (Section 705 stay had “practical effect” of

injunction when “an adversarial hearing [was] held and the

district court’s basis for issuing the order [was] strongly

challenged.”); Wyoming v. Department of Interior, No. 18-

8027, 2018 WL 2727031, at *1 (10th Cir. June 4, 2018)

(unpublished) (Section 705 stay was appealable under Section

1292(a)(1) when it “effectively enjoin[ed] enforcement of

[agency rule]”); Alliance for Hippocratic Med. v. FDA, No. 23-

10362, 2023 WL 2913725, at *3 n.3 (5th Cir. Apr. 12, 2023)

(unpublished) (Section 705 stay of FDA’s approval of

Mifepristone would have the “practical effect of an injunction”

because it effectively removed the drug from the market).

While not all of those cases discussed each of the Carson stay

factors, we are aware of no court of appeals holding that

22

Section 705 stays are not appealable under 28 U.S.C.

§ 1292(a)(1).

For all of those reasons, we tentatively find Carson’s

“practical effects” factors sufficiently satisfied in this case to

allow this court to resolve the Department’s request for a stay.

B

The Department insists that Make the Road lacks

associational standing to challenge any erroneous application

of Expedited Removal under the Expansion Order to foreign

individuals who have continuously resided in the United States

for more than two years. Dep’t Stay Mot. 22–23. It argues that

Make the Road has not alleged that any member with at least

two years of continuous physical presence has been, or is likely

to be, placed in Expedited Removal. Id. at 22. Not so.

“An organization has associational standing to bring suit on

its members’ behalf when: (1) at least one of its members

would have standing to sue in his or her own right; (2) ‘the

interests it seeks to protect are germane to the organization’s

purpose’; and (3) ‘neither the claim asserted nor the relief

requested requires the participation of individual members in

the lawsuit.’” Sierra Club v. FERC, 827 F.3d 59, 65 (D.C. Cir.

2016) (quoting WildEarth Guardians v. Jewell, 738 F.3d 298,

305 (D.C. Cir. 2013)).

The first requirement asks whether at least one Make the

Road member would have standing individually. Sierra Club,

827 F.3d at 65. That means showing that the member

(1) “suffered an injury in fact that is concrete, particularized,

and actual or imminent”; (2) “the injury was likely caused by

the defendant”; and (3) “the injury would likely be redressed

23

by judicial relief.” TransUnion LLC v. Ramirez, 594 U.S. 413,

423 (2021).

We begin with whether Make the Road’s members who

have continuously resided here for more than two years satisfy

those criteria. They do.

Make the Road’s Co-Executive Director attests that the

organization has “many members who have been present for

greater than two years[.]” Fontaine Decl. ¶ 41, ECF No. 50-2.

The district court found that such members “would have

difficulty affirmatively demonstrating two years of

[continuous] physical presence, particularly if suddenly

detained or given only a short period of time to do so.” Make

the Road N.Y., 2025 WL 2494908, at *18 (quotation marks

omitted). Because Make the Road has not shown that any of

these members are presently in Expedited Removal

proceedings, the relevant question is whether it has

nevertheless shown that such members are likely to face

Expedited Removal and thus suffer imminent injury. It has.

First, the record shows the Department is actively enforcing

the Expansion Order—a point it does not contest. See Make

the Road N.Y., 2025 WL 2494908, at *5 (citing Steinberg Decl.

at ¶ 300, ECF No. 50-23) (“[T]he Government set a goal [in

May 2025] of making 3,000 immigration arrests each day.”);

see also id. at *6 (“[Two thousand] immigrants per day were

arrested during the first week in June.”) (formatting modified).

Further support appears in the Huffman Memorandum itself,

where the Department directed officials to consider Expedited

Removal for “any alien [the Department] is aware of who is

amenable to expedited removal but to whom expedited removal

24

has not been applied[.]” Huffman Memorandum at 2

(emphasis added).

The record equally shows that the Department has chosen

to do so without any procedures in place to consider the length

of residence—that is, to determine whether detained

individuals are even statutorily eligible for Expedited Removal

because they were not able to demonstrate at least two years of

continuous residency. Dep’t Stay Mot. 23 (“[T]here is no

distinct protocol for assessing continuous presence and no

express prompt on Form I-867A for immigration officers to

expressly ask” about continuous presence.).

We have long recognized that “[t]he prospect of future

injury becomes significantly less speculative where, as here,

plaintiffs have identified concrete and consistently[ ]

implemented policies claimed to produce such injury.” In re

Navy Chaplaincy, 697 F.3d 1171, 1176–1177 (D.C. Cir. 2012).

And in Make the Road I, we accepted the district court’s

conclusion that there is nothing “speculative about a threatened

injury if the one who makes the threat simultaneously and

unequivocally states that he intends to inflict the threatened

harm as soon as possible and without further warning” on those

subject to the policy. 962 F.3d at 622; see also id. at 627–628.

Second, Make the Road has offered evidence of erroneous

Expedited Removals of two members who have been

continuously present for more than two years—“confirming

that this risk exists for [Make the Road’s] members who have

been present for longer than two years.” Make the Road N.Y.,

2025 WL 2494908, at *6; see id. at *7 (explaining that

members “Plaintiffs Mary and John[,]” who have over two

years of continuous presence but were summarily removed

anyway, “similarly demonstrate the risk that Make the Road’s

members who have been here longer than two years will be put

25

into expedited removal”); see also Make the Road Opp’n Mot.

16 (collecting cases of erroneous application of Expedited

Removal to such individuals nationwide). Together, this

evidence shows a sufficiently imminent risk of injury to

support standing at this stage.

Members who have been present for more than fourteen

days but less than two years and are already in removal

proceedings have also shown that they are likely to be injured

by the expansion of Expedited Removal under the Expansion

Order and Huffman Memorandum. See Make the Road N.Y.,

2025 WL 2494908, at *6 (citing several declarations). The

Department responds that such members face no risk because

those identified are in Section 240 proceedings rather than

Expedited Removal. Dep’t Stay Mot. 22–23. That argument

is unpersuasive. The district court found that the Department

has been “systematically” targeting individuals already in

Section 240 proceedings for Expedited Removal. See Make the

Road N.Y., 2025 WL 2494908, at *5, *20 (collecting

declarations). It found that the Department has repeatedly

dismissed Section 240 proceedings without warning and

immediately arrested the individual at the courthouse to initiate

Expedited Removal, short circuiting their ability to

demonstrate endangerment from removal. Id. at *5 (citing

several declarations). Far from undermining Article III

standing, the individuals’ participation in Section 240

proceedings underscores the likelihood that these members will

face Expedited Removal.

Make the Road’s members also satisfy causation and

redressability. “To satisfy th[e] [redressability] requirement,

the asserted injury must be ‘capable of resolution and likely to

be redressed by judicial decision.’” Western Coal Traffic

League v. Surface Transp. Bd., 998 F.3d 945, 950 (D.C. Cir.

2021) (quoting Sierra Club v. EPA, 755 F.3d 968, 973 (D.C.

26

Cir. 2014)). “Causation, or traceability, examines whether it is

substantially probable that the challenged acts of the defendant,

not of some absent third party, will cause the particularized

injury of the plaintiff.” Orangeburg v. FERC, 862 F.3d 1071,

1080 (D.C. Cir. 2017) (internal quotation marks omitted)

(quoting Florida Audubon Soc’y v. Bentsen, 94 F.3d 658, 663

(D.C. Cir. 1996) (en banc)). That showing is straightforward

here. In its Amended Complaint, Make the Road alleges that

its members face an increased risk of erroneous deprivation of

liberty because the Department has failed to adopt procedures

enabling them to demonstrate their ineligibility for Expedited

Removal based on two years of continuous physical presence.

See Am. Compl. ¶¶ 107–109 (generally discussing the due

process claim). And the injury is redressable because a judicial

decision staying or vacating the Expansion Order and Huffman

Memorandum could facilitate new procedures and alleviate

that risk.

The second element of associational standing—that “the

interests [the organization] seeks to protect are germane to the

organization’s purpose”—is likewise met. Sierra Club, 827

F.3d at 65 (citations and quotations omitted). This requirement

“raises an assurance that the association’s litigators will

themselves have a stake in the resolution of the dispute, and

thus be in a position to serve as the defendant’s natural

adversary.” United Food & Com. Workers Union Loc. 751 v.

Brown Grp., Inc., 517 U.S. 544, 555–556 (1996).

Make the Road plainly satisfies that standard. Its mission

is “to build the power of immigrant and working-class

communities to achieve dignity and justice[,]” and this

litigation seeks to protect the very interests of those members.

27

Make the Road N.Y., 2025 WL 2494908, at *6 (citing Fontaine

Decl. at ¶ 3, ECF No. 50-2).

The final requirement is that “neither the claim asserted nor

the relief requested requires the participation of individual

members in the lawsuit.” Sierra Club, 827 F.3d at 67 (citations

and quotations omitted). That inquiry “focus[es] * * * on

matters of administrative convenience and efficiency, not on

elements of a case or controversy.” United Food & Com.

Workers Union Loc. 751, 517 U.S. at 557.

That prong is satisfied here. Make the Road’s due process

claims and the relief it seeks do not demand “individualized

proof.” Hunt v. Washington State Apple Advert. Comm’n, 432

U.S. 333, 344 (1977). These due process claims are also “pure

question[s] of law.” Healthy Gulf v. United States Dep’t of the

Interior, 152 F.4th 180, 191 (D.C. Cir. 2025) (“Member

participation is not required where a suit raises a pure question

of law and neither the claims pursued, nor the relief sought

require the consideration of the individual circumstances of any

aggrieved member of the organization.”) (formatting

modified).

Accordingly, Make the Road is likely to succeed in

establishing associational standing.

C

Our third threshold issue is one of timing. Make the

Road’s claims of the constitutional insufficiency of the

Eligibility System and Credible Fear Procedures are, in the

words of IIRIRA, challenges to the “validity of the system”

implementing the Expansion Order. 8 U.S.C. § 1252(e)(3). A

complaint raising such claims “must be filed no later than 60

days after the date the challenged section, regulation, directive,

28

guideline, or procedure * * * is first implemented.” Id.

§ 1252(e)(3)(B).

While the Department made no argument about the

timeliness of Make the Road’s complaint in its stay papers, this

court must double check the timing because we have held that

Section 1252(e)(3)(B) is jurisdictional. M.M.V. v. Garland, 1

F.4th 1100, 1108 (D.C. Cir. 2021).

Timeliness is easily verified here. Make the Road’s

complaint, the district court’s due process holding, and the

district court’s order granting relief show that Make the Road

is challenging the system and procedures for implementing the

Expansion Order identified in that Order itself and in the

January 23, 2025 Huffman Memorandum. See Am. Compl.

¶¶ 107–109; Make the Road N.Y., 2025 WL 2494908, at *10;

Dist. Ct. Stay Order at 1, ECF No. 65. Make the Road filed its

initial complaint challenging the 2025 Expansion Order just

one day after that Order issued, and the amended complaint

adding challenges to the Huffman Memorandum was filed 59

days after the Memorandum issued. See generally Complaint,

Make the Road N. Y., 2025 WL 2494908, ECF No. 1 (filed Jan.

22, 2025); Am. Compl. (filed March 22, 2025).

At oral argument before this court, the Department argued

for the first time that Make the Road’s suit is time barred

because the government has subjected immigrants who arrive

“by sea” to Expedited Removal under the same procedures

challenged here even if they are found within the Nation’s

interior. See Transcript of Oral Argument at 4–7, 9, 11, 52

(discussing the 2002 Designation, 67 Fed. Reg. 68,924).

The Department’s stay papers referenced the 2002

Designation once in the background section, but the

Department made no argument that it was of any jurisdictional

29

consequence. See Dep’t Stay Mot. 5–6. For good reason.

Absolutely nothing in the record indicates that the government

has ever implemented Expedited Removal for sea arrivals in

the interior of the Country, or even anywhere other than the sea

coasts. Nor has the Department suggested that it could readily

identify for expedited-removal purposes a person in the interior

of the Nation as someone who arrived by sea and not by land.

Plus, the vast majority of U.S. Border Patrol encounters occur

at the Southwest Land Border. See U.S. Customs & Border

Prot., Nationwide Encounter Data, https://perma.cc/4754-

VMT8 (showing that, between 2022 and 2024, over 75 percent

of Border Patrol encounters occurred at the Southwest Land

Border).

In addition, the Huffman Memorandum and the Expansion

Order indisputably enlarged the scope of Expedited Removal

far beyond the 2002 Designation. Prior to the Expansion

Order, Expedited Removal applied only to (1) “arriving

aliens,” 1997 Designation, 62 Fed. Reg. at 10,313; (2) foreign

individuals encountered within 100 air miles of a land border

within fourteen days of arrival, 2004 Designation, 69 Fed. Reg.

at 48,879; and (3) foreign individuals who had illegally arrived

by sea in the past two years, 2002 Designation, 67 Fed. Reg. at

68,924. After the Expansion Order, foreign individuals

anywhere in the United States who had arrived by land can be

swept into Expedited Removal proceedings. And Make the

Road certainly does not allege that all (or any) of its 28,000

members arrived here by sea. See Jane Doe 2 Decl. at 18, ¶ 2,

ECF No. 50-2 (“We entered the United States in March 2024

through El Paso, Texas.”).4

4

In 2019, the Department similarly broadened the scope of

Expedited Removal to the statutory limit. See 2019 Designation, 84

Fed. Reg. at 35,412. The 2019 Designation was in effect for only

30

The dissenting opinion insists that the filings are untimely

because the procedures being applied are the same ones

previously applied at border and sea-coast encounters.

Dissenting Op. at 6–8. But Make the Road is challenging the

separate and distinct decision by the Department—which could

only be made upon expansion of Expedited Removal away

from sea coasts and border areas—to omit any procedures to

consider residency length or to modify the credible fear

procedures. The Department, in other words, made considered

decisions on January 21 and January 23, 2025, that its

preexisting procedures are constitutionally and statutorily

sufficient for the application nationwide of Expedited

Removal. And the Department did so even though the decision

to expand Expedited Removal across the entire United States

made the procedures—or lack thereof—for considering

residency length of new and especial salience. Those agency

judgments embodied in the Expansion Order and Huffman

Memorandum are all that this case challenges, and those

policies were never previously implemented, 8 U.S.C.

§ 1252(e)(3)(B), because those agency decisions were not

made until January 2025.

Since Make the Road timely filed its complaints within

sixty days of the Expansion Order’s and Huffman

Memorandum’s adoption and their implementation of

procedures excluding any process for considering residency

length or updated credible fear procedures, we conclude at this

preliminary stage that Make the Road’s suit is likely timely.

roughly seven months before it was rescinded. See Section I.B,

supra. The Department has made no argument here that it actually

implemented the 2019 Designation within the Nation’s interior

during that Designation’s brief lifespan.

31

D

The Department argues that Section 1252(f)(1) of Title 8

barred the lower court from issuing a stay under 5 U.S.C. § 705.

That argument is not likely to succeed.

Section 1252(f)(1) provides:

Regardless of the nature of the action or claim or of

the identity of the party or parties bringing the action,

no court (other than the Supreme Court) shall have

jurisdiction or authority to enjoin or restrain the

operation of the provisions of part IV of this

subchapter, as amended by the Illegal Immigration

Reform and Immigrant Responsibility Act of 1996,

other than with respect to the application of such

provisions to an individual alien against whom

proceedings under such part have been initiated.

8 U.S.C. § 1252(f)(1). Part IV of the referenced subchapter

includes the expedited-removal provisions at issue in this case.

8 U.S.C. § 1225.

Neither the Supreme Court nor this court has considered

whether Section 1252(f)(1) applies to a Section 705 stay. But

traditional indicia of statutory construction deprive the

government’s position of a likelihood of success.

1

In interpreting Section 1252(f)(1)’s scope, “[w]e begin with

the text,” see Smith v. Berryhill, 139 S. Ct. 1765, 1774 (2019).

And that text weighs heavily against the Department’s reading.

The three actions targeted by Congress in Section 1252(f)(1)

are “enjoin,” “restrain,” and “operation[.]” By their settled

32

meaning, each of those words directs us toward forms of relief

that tell an agency or individual what actions to take or not to

take.

Specifically, “[t]he term ‘to enjoin’ ordinarily means to

‘require,’ ‘command,’ or ‘positively direct’ an action or to

‘require a person to perform * * * or to abstain or desist from,

some act.’” Garland v. Aleman Gonzalez, 142 S. Ct. 2057,

2064 (2022) (quoting Enjoin, BLACK’S LAW DICTIONARY (6th

ed. 1990)). Similarly, the word “‘restrain’ means to ‘check,

hold back, or prevent (a person or thing) from some course of

action.’” Aleman Gonzalez, 142 S. Ct. at 2064 (quoting 5

OXFORD ENGLISH DICTIONARY 756 (2d ed. 1989)). And

“operation” seals the deal: “The ‘operation of’ (a thing) means

the functioning of or working of (that thing),” Aleman

Gonzalez, 142 S. Ct. at 2064 (citing RANDOM HOUSE

DICTIONARY OF THE ENGLISH LANGUAGE 1357 (2d ed. 1987)),

and “[t]he way in which laws ordinarily ‘work’ or ‘function’ is

through the actions of officials or other persons who implement

them,” Aleman Gonzalez, 142 S. Ct. at 2064.

In the Supreme Court’s words: “Putting these terms

together, § 1252(f)(1) generally prohibits lower courts from

entering injunctions that order federal officials to take or to

refrain from taking actions to enforce, implement, or otherwise

carry out the specified statutory provisions.” Aleman

Gonzalez, 142 S. Ct. at 2065 (emphasis added). Confirming

that reading, Congress enacted the heading for Section 1252(f),

which says that the Section’s scope is “Limit on injunctive

relief.” Omnibus Consolidated Appropriations Act of 1997,

Pub. L. No. 104–208 § 242(f), 110 Stat. 3009, 3009-611–612

(1996) (formatting modified and emphasis added); see Biden v.

Texas, 142 S. Ct. 2528, 2540 (2022) (“By its plain terms, and

even by its title, [Section 1252(f)(1)] is nothing more or less

than a limit on injunctive relief.”) (alteration in original)

33

(quoting Reno v. American-Arab Anti-Discrimination Comm.,

525 U.S. 471, 481 (1999)).

By its plain language, then, Section 1252(f)(1)’s bar applies

to those forms of relief that operate in personam—on

individual actors. Cf. Nken, 556 U.S. at 428. That is exactly

what injunctions do. “When a court employs ‘the extraordinary

remedy of injunction,’ it directs the conduct of a party, and does

so with the backing of its full coercive powers.” Id. (citations

omitted). Put simply, an injunction “is a means by which a

court tells someone what to do or not to do.” Id.; see also

I.A.M. Nat’l Pension Fund Benefit Plan A v. Cooper Indus.,

Inc., 789 F.2d 21, 24 (D.C. Cir. 1986) (“The definition of an

injunction under Section 1292(a)(1) is broad: [I]t is any order

‘directed to a party, enforceable by contempt, and designed to

accord or protect, some or all of the substantive relief sought

by a complaint in more than preliminary fashion.’”) (citation

omitted and emphasis added).

A Section 705 stay operates quite differently. When a court

enters a stay, it does not direct individuals to act or not to act.

Instead, the order simply “suspend[s] the [legal] source of

authority to act[.]” Nken, 556 U.S. at 428–429. Reading

Section 705 alongside Section 706’s authorization for courts to

“hold unlawful and set aside”—that is, to vacate—agency

actions, a stay under Section 705 functions as a “temporary

form of vacatur.” Alliance for Hippocratic Med., 78 F.4th at

254 (5th Cir. 2023), rev’d on other grounds, 144 S. Ct. 1540

(2024); see Dist. Ct. Stay Order, ECF No. 65, at 1 (district

court’s order “immediately postpone[s] and stay[s]” the

“effective dates of implementation and enforcement”). If

Make the Road ultimately succeeds on the merits of its claims

and the district court grants its request for vacatur, the district

court’s Section 705 stay’s temporary postponement of effective

dates will become permanent: The district court will “hold

34

unlawful and set aside,” 5 U.S.C. § 706(2), the Department’s

Eligibility System or Credible Fear Procedures for

implementing the Expansion Order and Huffman

Memorandum; it will not “enjoin” or “restrain” the actions of

individual officials.

On top of all that, Congress knows how to limit courts’

power to enter Section 705 stays when it wants to. And it uses

different language to do so. Both the Magnuson-Stevens Act

and the Clean Air Act, for example, explicitly limit the

availability of APA relief, including under Sections 705 and

706. 16 U.S.C. § 1855(f)(1)(A) (“[S]ection 705 of [Title 5] is

not applicable[.]”) (Magnuson-Stevens Act); 42 U.S.C.

§ 7607(d)(1) (“[S]ection 706 of title 5 shall not * * * apply to

actions to which this subsection applies.”) (Clean Air Act).

By all textual indications, then, Congress chose to confine

Section 1252(f)(1)’s bar to injunctive relief, leaving the courts’

power to enter stays unaffected. Because the district court’s

stay acts directly on the authorizing sources of law—the

Expansion Order and the Huffman Memorandum—and not on

individuals, the best reading of Section 1252(f)(1) is that it does

not bar stays of agency action.

2

The statutory structure reinforces the conclusion that the

Department’s broad reading of Section 1252(f)(1) is unlikely

to succeed. Most notably, Congress “specifically provided in

the expedited removal context for more traditional review of

‘[c]hallenges on validity of the system.’” Make the Road I, 962

F.3d at 625 (quoting 8 U.S.C. § 1252(e)(3)). Specifically,

Congress authorized actions challenging “whether [a statutory]

section, or any regulation issued to implement such section[] is

constitutional,” 8 U.S.C. § 1252(e)(3)(A)(i), and “whether

35

* * * a regulation, or a written policy directive, written policy

guideline, or written procedure issued by or under the authority

of the [Secretary] to implement [Expedited Removal] is not

consistent with applicable provisions of [the Immigration and

Nationality Act] or is otherwise in violation of law[,]” id.

§ 1252(e)(3)(A)(ii).

In addition, Section 1252(e)(3) preserves courts’

jurisdiction over such claims when brought not just by

individuals, but also by associations on behalf of their

individual members. Make the Road I, 962 F.3d at 628. That

is so because “[w]hether aggrieved individuals sue on their

own or band together through a representative association does

not change the nature of the lawsuit[.]” Id.

Stays and vacatur are well-established remedies for

unconstitutional and unlawful agency action. “When a

reviewing court determines that agency regulations are

unlawful, the ordinary result is that the rules are vacated[.]”

Harmon v. Thornburgh, 878 F.2d 484, 495 n.21 (D.C. Cir.

1989); see also Bridgeport Hosp. v. Becerra, 108 F.4th 882,

890 (D.C. Cir. 2024) (“When an agency’s action is unlawful,

vacatur is the normal remedy.”) (quotation marks omitted). If

Section 1252(f)(1) barred courts from setting aside agency

action, either temporarily (as in a stay) or permanently (as in

vacatur), Section 1252(e)(3) would offer little to no concrete or

enforceable relief for those bringing suit. We do not “impute

to Congress a purpose to paralyze with one hand what it sought

to promote with the other.” Grace v. Barr, 965 F.3d 883, 893

(D.C. Cir. 2020) (quoting Clark v. Uebersee Finanz-

Korporation, 332 U.S. 480, 489 (1947)).

We note that our conclusion accords with the rulings of our

sister circuits that have confronted this same or a similar

question. See Immigrant Defs. Law Ctr., 145 F.4th at 989–990

36

(holding that Section 1252(f)(1) does not apply to a Section 705

stay); cf. Texas v. United States, 40 F.4th 205, 220 (5th Cir.

2022) (holding that Section 1252(f)(1) does not bar vacatur

because “a vacatur does nothing but re-establish the status quo

absent the unlawful agency action[,]” and “vacatur neither

compels nor restrains further agency decision-making”).

3

The Department argues that the Supreme Court’s decision

in Aleman Gonzalez shows that Section 1252(f)(1) extends to

stays. See Dep’t Stay Mot. 9–11.

Not at all. In Aleman Gonzalez, the Supreme Court held

that Section 1252(f)(1) barred the lower court from issuing a

class-wide injunction requiring the government to provide

bond hearings for individuals detained for lack of

documentation, 142 S. Ct. at 2067–2068. The Supreme Court

then explicitly reserved the question of whether “1252(f)(1) not

only bars class-wide injunctive relief but also prohibits any

other form of relief that is ‘practically similar to an injunction,’

including class-wide declaratory relief.” Id. at 2065 n.2. The

Supreme Court said not a word about Section 705 stays.

Notably, the Supreme Court has since emphasized the

“narrowness of [Section 1252(f)(1)’s] scope.” Biden v. Texas,

142 S. Ct. at 2539; see also id. at 2540. And on that same

theme, the Supreme Court has also ruled that Section

1252(f)(1) does not apply to declaratory judgments. Nielson v.

Preap, 139 S. Ct. 954, 962 (2019). In addition, unlike this suit,

Aleman Gonzalez did not involve relief for asserted

constitutional violations under a statutory provision expressly

providing for such challenges to the insufficiency of process, 8

U.S.C. § 1252(e)(3).

37

Still, the Department insists that Aleman Gonzalez’s

reasoning applies to Section 705 stays, because stays function

exactly like injunctions. See Dep’t Stay Mot. 9–10. But as the

Supreme Court has explained, although stays and injunctions

can both “have the practical effect of preventing some action

before the legality of that action has been conclusively

determined,” a stay “achieves this result by temporarily

suspending the source of authority to act—the order or

judgement in question—not by directing an actor’s conduct.”

Nken, 556 U.S. at 428–429. That difference matters given the

plain text of Section 1252(f)(1), the statutory structure, and

Congress’s omission of language it has included in other

statutes when seeking to bar stays or vacatur.

Lastly, the Department points out that, unlike Section

1252(f)(2), which was at issue in Nken, Section 1252(f)(1) also

bars orders that “restrain” government actors. That is true, but

it is of no help to the government. See Dep’t Stay Mot. 10–11.

The Supreme Court has already held that the word “restrain” in

Section 1252(f)(1) speaks in injunctive language: It means “to

‘check, hold back, or prevent (a person or thing) from some

course of action.’” Aleman Gonzalez, 142 S. Ct. at 2064

(quoting 5 OXFORD ENGLISH DICTIONARY 756 (2d ed. 1989)).

So like its companion term “enjoin,” the word “restrain”

operates on and regulates the conduct of individuals,

presumably extending the injunction bar to also preclude

temporary restraining orders. See Alli v. Decker, 650 F.3d

1007, 1013 (3d Cir. 2011) (reasoning that the word “restrain”

in Section 1252(f)(1) “refers to one or more forms of temporary

injunctive relief, such as a temporary restraining order”).

The dissenting opinion says that this reading of the statute

“effectively read[s] ‘or restrain’ out of the statute” because

temporary restraining orders are a form of “temporary

injunctive relief.” Dissenting Op. at 15.

38

That analysis is mistaken. First, temporary restraining

orders are, to be sure, a form of “injunctive relief,” which is all

that Section 1252(f)’s denomination “Limit on injunctive

relief” covers. But the law has long recognized that temporary

restraining orders involve different processes and limitations

from injunctions, so there is no redundancy. See FED. R. CIV.

P. 65 (setting out separate requirements for preliminary

injunctions and temporary restraining orders); see also

Injunction, BLACK’S LAW DICTIONARY (6th ed. 1990) (“Within

the category of interlocutory injunctions there are two distinct

types which must be considered individually. The first is

generally referred to as a preliminary injunction, * * * [and]

[t]he second is generally referred to as a temporary restraining

order[.]”).

Second, the dissenting opinion’s real beef is with the

Supreme Court, which has already held that “restrain” speaks

in injunctive language. See Aleman Gonzalez, 142 S. Ct. at

2064; see also id. at 2065 (“Putting [the terms ‘enjoin,’

‘restrain,’ and ‘operation of’] together, § 1252(f)(1) generally

prohibits lower courts from entering injunctions that order

federal officials to take or to refrain from taking actions to

enforce, implement, or otherwise carry out the specified

statutory provisions.”).

Trying a different tack, the dissenting opinion points to the

Hobbs Act, which, in its view, “suggests that ‘restrain’ and

‘stay’ have closely related meanings” in the immigration

context. Dissenting Op. at 14.

The Department has not raised this argument here. For

good reason. The dissenting opinion’s Hobbs Act analogy

would only trade a mistakenly asserted surplusage problem for

a real one. Section 2349(b) of Title 28 provides that “[t]he

39

filing of the petition to review does not of itself stay or suspend

the operation of the order of the agency, but the court of appeals

in its discretion may restrain or suspend, in whole or in part,

the operation of the order pending the final hearing and

determination of the petition.” 28 U.S.C. § 2349(b). But if

stays “temporarily suspend[] the source of authority to act[,]”

Nken, 556 U.S. at 428–429, “suspend” in Section 2349(b) adds

nothing to “stay.” See also Suspend, BLACK’S LAW

DICTIONARY (6th ed. 1990) (“To interrupt; to cause to cease for

a time; to postpone; to stay, delay, or hinder; to discontinue

temporarily, but with an expectation or purpose of

resumption.”).

Given the Supreme Court’s relevant precedent and

analysis, its direction to read Section 1252(f)(1) narrowly, and

the strong textual evidence that Congress intended not to

address stays, the Department has not shown that it is likely to

succeed in showing that Section 1252(f)(1) barred the district

court from granting a stay under Section 705 of the APA.

E

The last threshold argument before us is whether the

Department’s selection of the procedures for implementing

Expedited Removal nationwide is a matter “committed to

agency discretion by law,” making the APA’s cause of action

unavailable. 5 U.S.C. § 701(a)(2).

IIRIRA provides:

(I) In general

The Attorney General may apply [Expedited Removal

provisions] to any or all aliens described in subclause

(II) as designated by the Attorney General. Such

designation shall be in the sole and unreviewable

40

discretion of the Attorney General and may be

modified at any time.

(II) Aliens described

An alien described in this clause is an alien who is not

described in subparagraph (F), who has not been

admitted or paroled into the United States, and who

has not affirmatively shown, to the satisfaction of an

immigration officer, that the alien has been physically

present in the United States continuously for the 2-

year period immediately prior to the date of the

determination of inadmissibility under this

subparagraph.

8 U.S.C. § 1225(b)(1)(A)(iii).

That provision precludes plaintiffs from bringing suit under

the APA to “scrutinize the Secretary’s [expedited] designation

decision[s] so long as [they] fall[] within statutory and

constitutional bounds.” Make the Road I, 962 F.3d at 635.

Before the district court, the Department contended that

this provision barred Make the Road’s lawsuit. The district

court did not address this argument, see Make the Road N.Y.,

2025 WL 2494908, at *8, and the Department affirmatively

waived the issue in its stay papers here. See Transcript of Oral

Argument at 20 (“[W]e made what we thought were our

strongest arguments in our 5,200 words[.]”).

Section 701(a)(2) speaks only to whether an APA cause of

action is available. See Sierra Club v. Jackson, 648 F.3d 848,

854 (D.C. Cir. 2011); Oryszak v. Sullivan, 576 F.3d 522, 525

(D.C. Cir. 2009). And whether a cause of action exists does

not go to this court’s jurisdiction. See Shapiro v. McManus,

577 U.S. 39, 45 (2015) (“Absent * * * frivolity, ‘the failure to

41

state a proper cause of action calls for a judgment on the merits

and not for a dismissal for want of jurisdiction.’”) (quoting Bell

v. Hood, 327 U.S. 678, 682 (1946)); Verizon Md., Inc v. Public

Serv. Comm’n of Md., 535 U.S. 635, 642–643 (2002) (“It is

firmly established in our cases that the absence of a valid (as

opposed to arguable) cause of action does not implicate

subject-matter jurisdiction[.]”) (quotation marks omitted).

The Department admitted as much, stating that whether we

reach the “committed to agency discretion” argument is

“largely a matter of discretion.” Transcript of Oral Argument

at 19–20. Given the Department’s express waiver of this

argument, we decline to address the issue. See United States

ex rel. Totten v. Bombardier Corp., 380 F.3d 488, 497 (D.C.

Cir. 2004) (“Ordinarily, arguments that parties do not make on

appeal are deemed to have been waived.”).5

5

There is a circuit split on whether Section 701(a)(2)’s

“committed to agency discretion” bar is jurisdictional. See Builders

Bank v. FDIC, 846 F.3d 272, 274 (7th Cir. 2017) (identifying and

analyzing the split). In addition to our circuit, the Seventh and Eighth

Circuits consider Section 701(a)(2) to be non-jurisdictional. See id.;

Ochoa v. Holder, 604 F.3d 546, 549 (8th Cir. 2010) (“When a

plaintiff complains about an action that is committed to agency

discretion by law, it does not mean that a court lacks subject matter

jurisdiction over the claim.”). The Second, Fifth, Ninth, and Tenth

Circuits consider Section 701(a)(2) to be jurisdictional. See Lunney

v. United States, 319 F.3d 550, 558 (2d Cir. 2003); Texas v. DHS,

123 F.4th 186, 217 (5th Cir. 2024); Alcaraz v. Immigration and

Naturalization Serv., 384 F.3d 1150, 1161 (9th Cir. 2004); Tsegay v.

Ashcroft, 386 F.3d 1347, 1354 (10th Cir. 2004). However, the

Second Circuit has since questioned whether its holding in Lunney

remains good law. See Sharkey v. Quarantillo, 541 F.3d 75, 87 (2d

Cir. 2008) (“It is uncertain in light of recent Supreme Court

precedent whether these threshold limitations are truly jurisdictional

42

The dissenting opinion next contends that “[t]he district

court erred by providing an APA remedy without identifying

any viable APA claim.” Dissenting Op. at 8. At the heart of

the dissenting opinion’s concern is an assumption that Make

the Road’s due process count “must be understood as an

equitable constitutional claim” wholly divorced from its APA

cause of action. Dissenting Op. at 9 n.5.

Once again, the Department saw no such ground for

objection. Which makes sense. The complaint never says that

the constitutional claim is divorced from the APA cause of

action. The prayer for relief expressly requests a stay, in

addition to injunctive relief. Am. Compl. at 31. To that same

point, Make the Road’s stay briefing wove the constitutional

due process and statutory APA challenges together. See

Memorandum in Support of Mot. to Postpone Effective Date

of Agency Action, ECF No. 50-1, at 13, 16 n.8; Plaintiff’s

Reply in Support of Mot. to Postpone Effective Date of Agency

Action, ECF No. 58, at 1. At no point has Make the Road

argued that its constitutional claim is grounded exclusively in

an independent implied constitutional cause of action.

Contrast National Treasury Emps. Union v. Vought, 149 F.4th

762, 792 (D.C. Cir. 2025) (plaintiffs “assert[ed] what they

or are rather essential elements of the APA claims for relief.”) (citing

Arbaugh v. Y&H Corp., 546 U.S. 500, 514–515 (2006)).

That difference of opinion is of no moment here because

Section 1225(b)(1)(A)(iii) is explicit that the only action that is

committed to agency discretion is the Secretary’s decision which, if

any, of the individuals “described in subclause (II)” will be subjected

to Expedited Removal. That the discretion does not extend to the

choice of systems and procedures to implement a designation is

reconfirmed by Section 1252(e)(3)(A)(ii), which authorizes legal

challenges to those very procedures, which is all this case is about.

43

describe[d] [in brief] as a ‘cause of action under the

Constitution for the violation of the separation of powers.’”).

Nor has the Department ever read the complaint that way

before the district court or this court. Quite the opposite, the

Department’s briefing on Make the Road’s stay motion takes

as given that the complaint presses the constitutional claim

under the APA. See Dep’t Stay Mot. 26–27. And the

Department’s motion to dismiss expressly puts the due process

claim on equal footing with Make the Road’s statutory APA

claims in asserting a common ground for their dismissal under

the APA. Motion to Dismiss, ECF No. 36, at 21 n.4, 28.

The dissenting opinion is correct that the district court

rested its stay “ruling only on the constitutional claim” and was

“not reach[ing] Make the Road’s APA claims[.]” Dissenting

Op. at 9 (quoting Make the Road N.Y., 2025 WL 2494908, at

*9 n.14). But the choice of which counts—statutory or

constitutional—to rely on for purposes of the court’s stay

analysis says nothing about whether the APA is the cause of

action for both the constitutional and statutory claims. As the

district court’s preceding footnote explains, it chose the

constitutional claim solely because it considered the due

process count to be the “most substantial, and seemingly

strongest, claim[]” for emergency relief. Make the Road N.Y.,

2025 WL 2494908, at *9 n.13.6

6

The dissenting opinion contends that “[i]f the district court

was in fact relying on an APA claim, it would run into the restrictions

of Make the Road I[.]” Dissenting Op. at 9 n.5. However, as the

government recognized in its motion to dismiss below, see ECF

No. 36 at 21, and conceded at oral argument, see Transcript of Oral

Argument at 21, Make the Road I expressly declined to extend its

holding to constitutional claims. See Make the Road I, 962 F.3d at

634 (“[W]e do not address whether there would be a cause of action

44

The proof of the dissenting opinion’s mistaken cause-of-

action premise is in the pudding. Even after the district court

grounded its stay ruling solely in the constitutional count of the

complaint, the Department made no objection that a Section

705 stay was unavailable for the due process claim.

Given all of that, this court should be loath on an

emergency motion at the threshold of a case to read the

complaint in a way that goes beyond its text and the parties’

demonstrated understanding of the complaint—especially

under a theory that not only has not been briefed or argued by

any party, but was expressly waived by the Department, see

Transcript of Oral Argument at 20.

IV

With that long prologue concluded, we turn to the merits

question posed by this appeal: Whether the Expansion Order

and Huffman Memorandum provide constitutionally adequate

process to ensure both that Expedited Removal is applied only

to those persons statutorily subject to such treatment and that

credible-fear claims are appropriately considered. We

conclude that the Department is not likely to succeed in

showing that its existing procedures provide constitutionally

adequate notice and an opportunity to be heard on the question

of whether a detained person has lived in the United States for

at least two continuous years. The Department, however, is

likely to succeed in showing that, for those persons determined

to be eligible for Expedited Removal, its Credible Fear

Procedures are sufficient.

under the APA *** if the Secretary’s actions were

unconstitutional.”).

45

A

1

The Due Process Clause of the Fifth Amendment prohibits

the federal government from “depriv[ing]” any “person” “of

life, liberty, or property, without due process of law[.]” U.S.

CONST. Amend. V. Persons protected by the Fifth

Amendment’s due process protections include individuals

present in the United States, whether they arrived here lawfully

or unlawfully. As the Supreme Court has emphasized, the Fifth

Amendment applies to all “person[s]”—not just to all citizens

or lawful residents. Zadvydas v. Davis, 533 U.S. 678, 693

(2001). As a result, those persons “who have once passed

through our gates, even illegally, may be expelled only after

proceedings conforming to traditional standards of fairness

encompassed in due process of law.” Shaughnessy v. United

States ex rel. Mezei, 345 U.S. 206, 212 (1953); see also

Mathews v. Diaz, 426 U.S. 67, 77 (1976) (“There are literally

millions of aliens within the jurisdiction of the United States.

The Fifth Amendment * * * protects every one of these persons

from deprivation of life, liberty, or property without due

process of law. Even one whose presence in this country is

unlawful, involuntary, or transitory is entitled to that

constitutional protection.”) (citation omitted).

In addition, “‘[i]t is well established that the Fifth

Amendment entitles aliens to due process of law’ in the context

of removal proceedings.” Trump v. J.G.G., 145 S. Ct. 1003,

1006 (2025) (quoting Reno v. Flores, 507 U.S. 292, 306

(1993)); A.A.R.P., 145 S. Ct. at 1367 (2025) (same). That

means that “‘no person shall be’ removed from the United

States ‘without opportunity, at some time, to be heard’” in a

meaningful way. A.A.R.P., 145 S. Ct. at 1367 (quoting

Yamataya v. Fisher, 189 U.S. 86, 101 (1903)).

46

As more than a century of precedent documents, due

process protections are vital in determining a person’s

eligibility for deportation or removal from the United States.

Removal, after all, may result in “loss of both property and life,

or of all that makes life worth living.” Ng Fung Ho v. White,

259 U.S. 276, 284 (1922). Deportation “visits a great hardship

on the individual[,]” Bridges v. Wixon, 326 U.S. 135, 154

(1945), and “may result in poverty, persecution and even

death[,]” id. at 164 (Murphy, J., concurring); see also Quintero

v. Garland, 998 F.3d 612, 647 (4th Cir. 2021) (“[T]he

consequences [that individuals facing removal proceedings]

may face are severe: family separation, prolonged detention,

and deportation to a country where persecution or even death

awaits.”); Landon v. Plasencia, 459 U.S. 21, 34 (1982).

Deportation also may result in detention with no foreseeable

end. A.A.R.P., 145 S. Ct. at 1368; see also Padilla v. Kentucky,

559 U.S. 356, 365 (2010) (“We have long recognized that

deportation is a particularly severe ‘penalty,’” even if “it is not,

in a strict sense, a criminal sanction.”) (quoting Fong Yue Ting

v. United States, 149 U.S. 698, 740 (1893)); Sessions v.

Dimaya, 584 U.S. 148, 157 (2018) (Deportation is “a ‘drastic

measure,’ often amounting to lifelong ‘banishment or

exile[.]’”) (quoting Jordan v. De George, 341 U.S. 223, 231

(1951)).

Due process generally must also ensure fair consideration

of a person’s claims that they should not be removed before it

occurs. That is because, once an individual has been expelled

from the United States, the ability of a federal court to provide

any meaningful review and remedy is significantly constrained.

See Noem v. Abrego Garcia, 145 S. Ct. 1017, 1018 (2025)

(noting that the district court’s order to “effectuate” the return

of a wrongfully expelled individual “may exceed the District

Court’s authority[,]” and that courts must give “due regard for

47

the deference owed to the Executive Branch in the conduct of

foreign affairs” in issuing relief after removal has occurred).

As a result, an individual’s liberty interest in avoiding a

wrongful removal is “particularly weighty,” A.A.R.P., 145 S.

Ct. at 1368, and “‘[p]rocedural due process rules are meant to

protect’ against ‘the mistaken or unjustified deprivation of life,

liberty, or property[,]’” id. at 1367 (quoting Carey v. Piphus,

435 U.S. 247, 259 (1978)).

2

The Department insists that anyone who entered the

United States unlawfully and who has not been continuously

present for the past two years enjoys no constitutional

protection under the Due Process Clause and, instead, enjoys

only “whatever” process Congress chooses to dispense. Dep’t

Stay Mot. 18 (quoting Department of Homeland Security v.

Thuraissigiam, 140 S. Ct. 1959, 1982 (2020)). To get there,

the Department argues that the so-called “entry fiction” applies

to everyone anywhere in the United States whose presence is

unlawful. See Dep’t Stay Mot. 14–15. That argument is not

likely to succeed.

The “entry fiction” applies to three groups of persons who,

although having technically crossed the border and entered the

United States, have not established any long-term connection

to this Country.

First, “more than a century of precedent” confirms that

individuals attempting to enter the United States can be stopped

at the border and, when that happens, they “never * * *

acquire[] any domicil[e] or residence within the United

States[.]” Thuraissigiam, 140 S. Ct. at 1982 (quoting

Nishimura Ekiu v. United States, 142 U.S. 651, 660 (1892)).

As a result, those persons receive only whatever process

48

protections Congress chooses to confer. Id. (collecting cases).

Those individuals, of course, are not living in the interior of the

United States, where Expedited Removal now applies.

Second, the “entry fiction” and its limitation on due

process apply to individuals who are not stopped right at the

border, but have only briefly “set foot on U.S. soil,”

Thuraissigiam, 140 S. Ct. at 1982, and so are “‘on the

threshold’” of entry to the United States, id. at 1983 (quoting

Mezei, 345 U.S. at 212); see Thuraissigiam, 140 S. Ct. at 1964

(applying entry fiction to person stopped “just 25 yards from

the border”). Those persons intercepted shortly after crossing

the border and proximate to it also have “only those rights

regarding admission that Congress has provided by statute.”

Id. at 1983. Likewise, individuals living in the expanded area

for Expedited Removal are far beyond the threshold of entry

and Make the Road’s members have been here for from

fourteen days to ten years. Am. Compl. ¶¶ 12, 13, 97–102.

Third, the entry fiction extends to individuals who have

been paroled and are awaiting removal proceedings. See

Thuraissigiam, 140 S. Ct. at 1982 (collecting cases); Kaplan v.

Tod, 267 U.S. 228, 229–230 (1925) (immigrant who was

initially denied admission at Ellis Island and later paroled into

the United States “was still in theory of law at the boundary

line and had gained no foothold” in the United States). Parole

occurs when the government chooses to release from detention

and into the United States, under strict conditions, an individual

who was stopped at or near the border. Parole can be granted

for humanitarian reasons and to conserve resources while an

individual’s claimed reasons for being allowed into the United

States (for example, asylum) are evaluated. See 8 U.S.C.

§ 1182(d)(5)(A); 8 C.F.R. § 212.5(b); see also Jennings v.

Rodriguez, 583 U.S. 281, 288 (2018). Because those on parole

are excluded from Expedited Removal, 8 U.S.C.

49

§ 1225(b)(1)(A)(iii)(II), that exception has no application to

the expanded scope of summary removal at issue here.

The Department’s insistence that the entry fiction should

be extended to every individual who is unlawfully present and

who has not resided in the United States for two years,

wherever they may live, has two central flaws.

a

To start, the Department’s argument runs headlong into

over a century of precedent in which the Supreme Court has

recognized a difference in the due process rights between those

who are stopped at or near the border, and so do not fall within

the Due Process Clause’s compass, and those who have

“become subject in all respects to [the United States’]

jurisdiction, and a part of its population, although alleged to be

illegally here[.]” Yamataya, 189 U.S. at 101. Those “who have

once passed through our gates, even illegally, may be expelled

only after proceedings conforming to traditional standards of

fairness encompassed in due process of law.” Mezei, 345 U.S.

at 212 (citing Yamataya, 189 U.S. at 100–101).

This “distinction between an alien who has effected an

entry into the United States and one who has never entered runs

throughout immigration law.” Zadvydas, 533 U.S. at 693

(collecting cases); compare Mezei, 345 U.S. at 208, 212–213

(individual detained at Ellis Island indefinitely not protected by

due process because “harborage at Ellis Island is not entry into

the United States[,]” and so Mr. Mezei was “an alien on the

threshold of initial entry”), with Yamataya, 189 U.S. at 87, 101

(individual stopped four days after entry must be afforded “all

opportunity to be heard upon the questions involving [her] right

to be and remain in the United States”).

50

Thuraissigiam, on which the Department relies for its

argument, reaffirmed the distinction:

While aliens who have established connections in this

country have due process rights in deportation

proceedings, the Court long ago held that Congress is

entitled to set the conditions for an alien’s lawful entry

into this country and that, as a result, an alien at the

threshold of initial entry cannot claim any greater

rights under the Due Process Clause.

140 S. Ct. at 1963–1964.

The Department responds that affording any due process

to persons whose presence is unlawful ends up treating

parolees who entered at a border or port of entry “worse” than

those who entered the country unlawfully. Dep’t. Stay Mot.

14–15. Not so.

First, parolees and those who are present without

authorization are simply in different positions. Parolees enter

on the condition and with the understanding that they remain

legally at the border. Any connections they make within the

United States are with the knowledge of their un-entered status,

and so they develop no reasonable expectations or reliance

interests based on their continued presence. See

Thuraissigiam, 140 S. Ct. at 1982–1983; Kaplan, 267 U.S. at

229–230; Leng May Ma v. Barber, 357 U.S. 185, 188 (1958).

Second, parolees are not treated worse. They are

statutorily excepted from, and so ineligible for, the Expedited

Removal process while on parole. 8 U.S.C.

§ 1225(b)(1)(A)(iii)(II) (describing as eligible for Expedited

Removal “[a]n alien described in this clause * * * who has not

been admitted or paroled into the United States”).

51

Instead, parolees’ presence is governed by statutory and

regulatory procedures that provide more extensive process and

protection than Expedited Removal allows. For example,

parole may only be terminated with prior written notice or “at

the expiration of the time for which parole was authorized,”

meaning that the parolee is on notice of a potential departure

date from their initial qualified entry. 8 C.F.R. § 212.5(e)(1).

For any earlier removal, the parolee must first receive “written

notice,” before “any order of exclusion, deportation, or

removal previously entered shall be executed.” 8 C.F.R.

§ 212.5(e)(2). This advance notice affords parolees time to

plan ahead to apply for an adjustment of status, see 8 C.F.R.

§ 212.5(c), to locate legal representation, or to seek habeas

relief if circumstances demand, see Kaplan, 267 U.S. at 229

(parolee afforded over three months between the issuance of

her “warrant of deportation” and the removal date, which

afforded her time to petition for a writ of habeas corpus).

Third, all the additional processes baked into the parole

system create a lower risk of erroneous removal than there is

for those who are present without authorization and are

subjected to summary removal. Parolees have already gone

through an elaborate process to obtain parolee status, see

Humanitarian or Significant Public Benefit Parole for Aliens

Outside the United States, U.S. Citizenship and Immigration

Services, https://perma.cc/MM5J-XGME; see also 8 C.F.R.

§ 223.2 (outlining application and processing requirements for

advance parole), and the government can quickly identify

whether someone is a parolee or not by consulting its database.

The same cannot be said for an individual picked up off

the street or at her workplace on suspicion of being unlawfully

present. That individual is neither given notice that proof of

two years of continuous presence will exempt her from

52

Expedited Removal, nor afforded an opportunity to obtain

evidence to demonstrate such presence. See 8 C.F.R.

§ 235.3(b)(2)(i); Make the Road N.Y., 2025 WL 2494908, at

*16 (“[T]here is nothing in the expedited removal interview

process that would prompt an individual to put forward the

‘affirmative[]’ evidence of continuous two-year presence that

is required under the statute, 8 U.S.C.

§ 1225(b)(1)(A)(iii)(II).”). Indeed, “[u]nlike section 240

proceedings, which often take place over the course of several

months, the expedited removal order is ‘usually issued within

a few days, if not hours.’” Make the Road N.Y., 2025 WL

2494908, at *3 (quoting Hartzler Decl., ECF No. 50-16); see

also Am. Compl. ¶ 44 (“Once a determination on

inadmissibility is made, removal can occur rapidly, within

twenty-four hours.”); Mary Doe Decl. ¶¶ 12–22, ECF No. 50-

7 (describing two individuals subjected to Expedited Removal

in January 2025 who were removed from the country within a

24-hour period after ten years’ residence in the United States).

b

The second problem with the Department’s effort to deny

all persons unlawfully present in the United States any

modicum of due process is that it ignores the sorting problem

that sits at the heart of its argument. Specifically, Congress was

crystal clear that persons who could show that they have

resided continuously in the United States for two or more years

are not subject to Expedited Removal. 8 U.S.C.

§ 1225(b)(1)(A)(iii)(II). So the Department’s objection that

persons who have been here less than two years should not

receive due process skips right over the predicate problem of

determining who has been here for two years or more and who

has not.

53

After all, the Department does not claim that, without

information provided by the individual, it can tell who among

those it detains has been present in the United States less than

two years. Quite the opposite, the complaint and declarations

in this case identify specific instances in which persons

statutorily ineligible for Expedited Removal nevertheless have

been trapped in its net and, in at least two cases, summarily

deported. Am. Compl. ¶¶ 12–13, 86–87, 105; Mary Doe Decl.

¶¶ 12–22, Make the Road N.Y., 2025 WL 2494908, ECF

No. 50-7 (mother and son who had lived in this Country for

over ten years were stopped, detained, prevented from

contacting a lawyer or making any phone calls, and deported

within 24 hours).

When it comes to that critical and mandatory

differentiation process, the Supreme Court underscored just a

few months ago that “[t]he Fifth Amendment entitles aliens to

due process of law in the context of removal proceedings[,]”

even summary ones. A.A.R.P., 145 S. Ct. at 1367 (quoting

J.G.G., 145 S. Ct. at 1006). That process of determining

eligibility for summary removal must be sufficient to ensure

that “‘no person shall be’ removed from the United States

‘without opportunity, at some time, to be heard’” to

demonstrate their ineligibility for such removal. Id. (quoting

Yamataya, 189 U.S. at 101).

The constitutional minimum, in other words, must be

process that is adequate to prevent wrongful removals. See id.

(quoting J.G.G., 145 S. Ct. at 1006). “It is not competent,”

after all, for “any executive officer * * * arbitrarily to cause an

alien who has entered the country, and has become subject in

all respects to its jurisdiction, and a part of its population,

although alleged to be illegally here, to be taken into custody

and deported without giving him all opportunity to be heard

54

upon the questions involving his right to be and remain in the

United States.” Yamataya, 189 U.S. at 101.

The Department’s stay papers say nothing about this due

process hole in its argument.7

Instead, the Department argues that according due process

protections to those whose presence is unlawful “would thrust

the federal courts into an area that the Constitution exclusively

assigns to the political branches.” Dep’t Stay Mot. 15. In their

words, “[w]hether an alien has ‘established connections’

sufficient to merit additional process is a political judgment

that falls to the political branches[.]” Id. (quoting

Thuraissigiam, 140 S. Ct. at 1963–1964).

That argument is meritless. The Supreme Court precedent

cited above, see Sections IV.A.1, 2, supra, says otherwise.

Which makes sense because, under the Constitution, it is the

role of the courts, and not the Political Branches, to say

conclusively what the Fifth Amendment’s Due Process Clause

requires and to whom it applies. E.g., Marbury v. Madison, 5

U.S. 137, 177 (1803); A.A.R.P., 145 S. Ct. at 1367; J.G.G., 145

S. Ct. at 1006. Plus, due process is simply enforcing the

residency eligibility line that Congress and a President—the

Political Branches—enacted into law. That leaves the

7

For purposes of identifying this problem in the Department’s

rationale, we have assumed without deciding the additional question

of how much and in what form due process protects those who have

been in the United States for less than two years but for at least the

four or more days that the Supreme Court found sufficient to trigger

due process protections in Yamataya, 189 U.S. at 87, 101–102, or the

fourteen or more days that had sufficed to preclude Expedited

Removal for the preceding almost nineteen years of the Expedited

Removal program, see 2004 Designation, 69 Fed. Reg. at 48,879;

2022 Designation, 87 Fed. Reg. at 16,022.

55

Department no leg to stand on in insisting that it can ignore the

baseline constitutional process needed to execute the law as

statutorily required. Cf. Youngstown Sheet & Tube Co. v.

Sawyer, 343 U.S. 579, 637–638 (1952) (Jackson, J.,

concurring) (“When the President takes measures incompatible

with the expressed or implied will of Congress, his power is at

its lowest ebb.”).

*****

For all of those reasons, the Department is unlikely to

succeed in its argument that all persons in the United States

found by the Department’s summary procedures to be here

without authorization categorically fall outside the protection

of the Due Process Clause.

3

Because the Department has failed to show a likelihood

that due process protections do not apply to those affected by

the Expansion Order, the question is whether the procedures

adopted by the Department to implement its expansion—its

Eligibility System—are constitutionally sufficient. On this

front too, the Department is unlikely to succeed given the

Eligibility System’s serious risks of erroneous summary

removal—risks that, according to the record at this stage, have

actually materialized in wrongful inclusion in the Expedited

Removal process and removals. See Mary Doe Decl. ¶¶ 9–12,

15–21, ECF No. 50-7 (two individuals who had resided in the

United States for over ten years wrongly subjected to

Expedited Removal); Levenson Decl. ¶¶ 23–24, ECF No. 50-4

(noting detention of individual with three years of continuous

presence for Expedited Removal); see also Co Tupul v. Noem,

No. 25-cv-02748, 2025 WL 2426787, at *1 (D. Ariz. Aug. 4,

2025) (Expedited Removal order issued to person with

56

documentary evidence of thirty years of continuous presence,

including 16 affidavits and official and medical records);

Castillo Lachapel v. Joyce, 786 F. Supp. 3d 860, 862–863

(S.D.N.Y. 2025) (Department conceded that person with more

than two years of continuous presence was issued an Expedited

Removal order); Orellana Juarez v. Moniz, 788 F. Supp. 3d 61,

64 (D. Mass. 2025) (same Department concession); Tamay v.

Scott, No. 25-cv-438, 2025 WL 2507011, at *1 (D. Me. Sept. 2,

2025) (individual put into Expedited Removal likely to succeed

in showing continuous presence for more than six years);

Chogllo Chafla v. Scott, No. 25-cv-437, 2025 WL 2531027, at

*1 (D. Me. Sept. 2, 2025) (same, for more than two years);

Domingo-Ros v. Archambeault, No. 25-cv-1208, 2025 WL

1425558, at *3 (S.D. Cal. May 18, 2025) (individual put into

Expedited Removal made a serious showing of more than two

years’ presence).

In expanding Expedited Removal away from land and sea

borders so that it now covers the entire United States and its

full population, the need for the Department to ensure that the

summary removal process stays within statutory bounds has

become exponentially more acute. The district court found that

the “vast majority” of undocumented individuals present in the

United States have been living here for over two years—and

are thus statutorily ineligible for Expedited Removal if given a

chance to prove the duration of their residence. Make the Road

N.Y., 2025 WL 2494908, at *16 (citing Steinberg Decl. at 58,

ECF No. 50-24; Steinberg Decl. at 258, ECF No. 50-23). And

those living further away from the border—i.e., those to whom

the Expansion Order extends Expedited Removal—are less

likely to have recently entered the United States. Id. at *17.

The Department has not contested either of those facts.

For good reason. The additional risks of error associated with

expanding Expedited Removal to blanket the United States is

57

something the government itself has long recognized. See 1997

Designation, 62 Fed. Reg. at 10,313 (application of Expedited

Removal to people “already in the United States will involve

more complex determinations of fact and will be more difficult

to manage”); 2022 Designation, 87 Fed. Reg. at 16,023 (same);

see also id. at 16,024 (noting that the use of expanded

Expedited Removal “would involve complex new challenges

for the ICE workforce” and “would require time- and fact-

intensive training for all current officers, agents, and

supervisors”). In fact, these “operational complexities” are one

of the reasons the 2019 Designation was never implemented in

any meaningful way. Id. (“The fact that the expanded

expedited removal authority was used so rarely by ICE officers

during the approximately one year that it was available to them

[via the 2019 Designation] reflects the operational

complexities and limited utility that it presented in practice.”).

To be sure, the statute puts the burden of proving two-year

residency on the individual. 8 U.S.C. § 1225(b)(1)(A)(ii). But

the Department’s processes must afford detained persons

notice and some reasonable opportunity to meet that burden.

See, e.g., A.A.R.P., 145 S. Ct. at 1367–1368; compare Dep’t

Opp. to Plaintiffs’ Mot. to Postpone Effective Date of Agency

Action at 35, ECF No. 56 (Department conceding in district

court that it has a legal obligation under 8 U.S.C. § 1225(b)(1)

to “determine whether the alien has been present for fewer than

two years”), with Dep’t Stay Mot. 23 (“[T]here is no distinct

protocol for assessing continuous presence and no express

prompt on Form I-867A for immigration officers to expressly

ask” about continuous presence.); contrast Dep’t of Homeland

Sec., Memorandum from Acting Director Matthew T. Albence

on Implementation of July 2019 Designation of Aliens Subject

to Expedited Removal at 2 (July 24, 2019) (“If an alien is

unable to personally provide such evidence at the time of

encounter but claims to have access to such evidence, the alien

58

shall be permitted a brief but reasonable opportunity to obtain

it or communicate with a third party to obtain such evidence.”).

The record at this stage shows that the Department is not

providing any such process. The Eligibility System being

applied to the expanded scope of removal is the same one that

had been applied to those found at the sea coasts and within

100 air miles of the border, where the likelihood of

encountering recent border crossers is much higher. See Make

the Road N.Y., 2025 WL 2494908, at *17 (noting that “those

living far away from the border are less likely to have recently

crossed”); cf. United States v. Brignoni-Ponce, 422 U.S. 873,

884–885 (1975).

The Expansion Order provides no added procedures

beyond those already in place. It simply leaves it to the

detained individual to spontaneously and affirmatively prove

two years of continuous residence. See Expansion Order, 90

Fed. Reg. at 8,140. The Huffman Memorandum similarly says

only that the “actions contemplated by this memorandum shall

be taken in a manner consistent with applicable statutes,

regulations, and court orders,” and relies solely on existing

asylum/credible-fear procedures. Huffman Memorandum at 2.

Under the Eligibility System, then, the Department chose

to apply only its pre-existing regulations that provide no

mechanism for detained individuals to demonstrate their

residency length or for immigration officials to consider it. All

that those rules require is that an immigration officer first must

read a statement from Form I-867A, 8 C.F.R. § 235.3(b)(2)(i)

that informs the individual only of the importance of telling the

immigration officer if the individual is afraid to return home.

Steinberg Decl. at 94, ECF No. 50-23 (reproducing text of

Forms I-867A) (“If you fear or have a concern about being

removed from the United States or about being sent home, you

59

should tell me so during this interview because you may not

have another chance.”). Nowhere in that statement is the

individual given notice to inform the officer if she has been

present in the United States continuously for two or more years.

Id.

Second, the officer is required to ask four questions from

Form I-867B. See 8 C.F.R. § 235.3(b)(2)(i). Those questions

are: (1) “Why did you leave your home country or country of

last residence?” (2) “Do you have any fear or concern about

being returned to your home country or being removed from

the United States?” (3) “Would you be harmed if you are

returned to your home country or country of last residence?”

(4) “Do you have any questions or is there anything else you

would like to add?” Steinberg Decl. at 94, ECF No. 50-23

(reproducing text of Form I-867B).

Again, these questions—which on their face were

designed for operation closer to the border or sea—do not ask

about the length of residence, provide no notice of the legal

relevance of the person’s length of residence, do not request

any documentation of residence, and provide no mechanism for

individuals to obtain and later present such evidence if they do

not happen to have two years of, for example, employment

records or rental payment documentation on their person. Id.

Instead, if the immigration officer determines on the basis of

the answers to those four questions that the individual is

eligible for Expedited Removal, and a supervising officer

reviews and approves that determination, then the individual is

ordered to be summarily removed—with no further inquiry or

review. 8 U.S.C. §§ 1225(b)(1)(A)(i), 1252(a)(2)(A)(i); 8

C.F.R. § 235.3(b)(2)(i)–(ii).

Absent a credited claim of harm if returned, then, that is

now the full sum of the process provided before a person is

60

ordered removed after being found anywhere in the United

States no matter how long she has lived here. The question of

residence length makes no appearance anywhere in the process.

In the Department’s own words, “there is no distinct protocol

for assessing continuous presence and no express prompt on

Form I-867A for immigration officers to expressly ask” about

continuous presence. Dep’t Stay Mot. 23.

Nor is there any point in the process where an individual

is given notice of the relevance of their residence length or an

opportunity to provide evidence of continuous presence that

would, as a matter of law, take her out of the Expedited

Removal process. Simply put, at no point before the district

court or this court has the Department shown that it is providing

any process to account for the need to cabin Expedited

Removal based on a person’s ability to demonstrate two years’

continuous residence.

The Department makes two arguments that its extant

procedure of providing no notice or opportunity to demonstrate

residence nonetheless passes constitutional muster. Neither is

likely to succeed.

First, the Department reasons that the opportunity for

detained individuals to sua sponte raise their ineligibility for

Expedited Removal on residency grounds and to come forward

with evidence suffices. See Dep’t Stay Mot. 23 (citing Castano

Decl. ¶ 6, Dep’t Stay Mot. Ex. C) (explaining that detained

individuals can offer evidence like “banknotes, leases, deeds,

licenses, bills, receipts, employment records, and the like”).

That argument blinks away the reality that, at least on this

record, detained individuals (1) are not informed that they are

facing a form of summary removal that could be cut off by

evidence of continuous residency, so they do not even know to

61

raise the issue, (2) are highly unlikely to carry with them at all

times evidence proving their residency for two continuous

years, and (3) have no realistic opportunity to contact a third

party able to bring evidence to the detained individual before

Expedited Removal occurs. See Make the Road N.Y., 2025 WL

2494908, at *7 (citing Mary Doe Decl. ¶¶ 12–21, ECF No. 50-

7) (two individuals apprehended, denied access to a phone, and

summarily removed the next morning). For those reasons, the

Department’s assurance that it will “consider[]” documentary

evidence, Castano Decl. ¶ 6, Dep’t Stay Mot. Ex. C, only if the

detained individual thinks to volunteer it and if she happens to

have it on her person, falls far short of affording persons the

required “‘notice * * * that they are subject to removal’” with

“sufficient time and information” to “‘actually’” contest their

removal. A.A.R.P., 145 S. Ct. at 1368 (quoting J.G.G., 145 S.

Ct. at 1006); see also J.G.G., 145 S. Ct. at 1006.

Second, the Department argues that there is no

constitutional requirement to “affirmatively inform every alien

of every possible defense to expedited removal[.]” Dep’t Stay

Mot. 24. Sure. But when (1) the statute forecloses the

application of Expedited Removal to an entire category of

persons; (2) the Department admits it is doing nothing on its

end to ensure compliance with that restriction on its power, (3)

even though the Department has chosen to apply its program in

new locations where the risk of misapplication is (at the least)

substantial; and (4) the Department chooses to engage in a form

of summary removal that does not allow detained individuals

any opportunity to learn of the need for such evidence or to

obtain it, then due process requires notice and a reasonable

opportunity to be heard before summary removal. In other

words, the Department cannot erase express statutory limits on

its removal power by combining inattention to statutory

limitations on its own part with the construction of practicably

62

insurmountable barriers to claiming the law’s protection on the

part of those affected.

At oral argument, counsel for the Department asserted for

the first time thus far in this litigation that immigration officers

are following procedures laid out in the “2019 Guidance.”

Transcript of Oral Argument at 9–15, 46–47, 50–51. Counsel

then contended that, under these procedures, it is “very

typically” the case that individuals are informed that they are

being put into Expedited Removal proceedings due to a lack of

continuous presence. Id. at 10.

There are multiple problems with this effort to introduce

facts for the first time at an appellate argument. See United

States v. Askew, 529 F.3d 1119, 1142 n.4 (D.C. Cir. 2008)

(“[D]e novo factfinding” is “wholly inconsistent with the

function of an appellate court.”).

To start, nothing in the Expansion Order, Huffman

Memorandum, or anything else cited by counsel says that the

2019 Guidance applies to the 2025 Expansion Order. In fact,

the Department said the opposite in its stay papers: “[T]here is

no distinct protocol for assessing continuous presence[.]”

Dep’t Stay Mot. 23.

In addition, counsel for the Department provided no basis,

in the record or otherwise, for characterizing this asserted

practice as “very typical[.]” Transcript of Oral Argument at

10. Counsel cited no record evidence at all to support that

claim, and we have found none.

Further, the Department has never submitted the 2019

Guidance as part of this record before the district court or even

to this court after oral argument, despite an invitation for the

Department to do so. Transcript of Oral Argument at 52.

63

The only 2019 Guidance this court could locate simply

repeats that the individual “bears the affirmative burden to

show to the satisfaction of the encountering immigration

officer” that she has been physically present for two years.

Dep’t of Homeland Sec., Memorandum from Acting Director

Matthew T. Albence on Implementation of July 2019

Designation of Aliens Subject to Expedited Removal at 2 (July

24, 2019). The Guidance further lists some examples of

evidence that may demonstrate continuous physical presence

and states that, if an individual “claims to have access to such

evidence,” the individual shall be given a “brief but reasonable

opportunity to obtain” said evidence. Id.

That 2019 Guidance makes things worse, not better, for

the Department.

 The omission of any similar reference to an

opportunity to obtain evidence of residency length

in the Expansion Order and Huffman

Memorandum is telling.

 Nothing in that 2019 Guidance remotely suggests

that immigration officers are affirmatively asking

about residency length, contrary to counsel’s

statement.

 And counsel’s argument appears to be a straw man

because that 2019 Guidance was superseded in

2020 by new guidance that says not a word about

notifying detained persons of the relevance of

their residency length or affording them an

opportunity to obtain evidence of residency before

removal (at least not in the portions of the

memorandum that are publicly available). See

generally Dep’t of Homeland Sec., Memorandum

from Senior Official Tony H. Pham Performing

64

the Duties of the Director on Superseding

Implementation Guidance for July 2019

Designation of Aliens Subject to Expedited

Removal (Oct. 2, 2020).

In any event, for purposes of this stay motion, counsel’s

wholly unsubstantiated and record-contradicting assertion is an

evidentiary argument that is forfeited. See Ascension Borgess

Hosp. v. Becerra, 61 F.4th 999, 1003 (D.C. Cir. 2023)

(deeming forfeited an argument made “for the first time at oral

argument on appeal to this court”).

In sum, the Expedited Removal statute requires a

determination of residency length before an individual is

summarily removed, and due process requires that detained

individuals be given “notice and an opportunity to challenge

their removal[’s]” legal basis. J.G.G., 145 S. Ct. at 1006. That

notice “must be afforded within a reasonable time and in such

a manner as will allow [detained individuals] to actually seek”

relief from their removal. Id. More specifically, the

Department “must” afford detained individuals “sufficient time

and information to reasonably be able to” demonstrate their

ineligibility for Expedited Removal. A.A.R.P., 145 S. Ct. at

1368. Because the Eligibility System chosen to implement the

Expansion Order does not afford detained individuals such

process, the Department is unlikely to succeed in challenging

the constitutional merits of the district court’s stay order.

B

Turning to the Department’s process for evaluating

whether detained persons face a credible fear of harm if

removed to their country of origin or another location, the

Department is likely to succeed in showing that its Credible

65

Fear Procedures under the Expansion Order comply with due

process.

As noted earlier, the Expansion Order and the Huffman

Memorandum chose to carry forward the preexisting

procedures for evaluating detained individuals’ credible-fear

protections. In stark contrast to the complete absence of any

process regarding residency length, the Credible Fear

Procedures involve immigration officers directly and

specifically asking all persons why they left their home country

or country of last residence; if they “have any fear or concern

about being returned to [their] home country or being removed

from the United States”; and if they would “be harmed if [they]

are returned to [their] home country or country of last

residence[.]” Steinberg Decl. at 94, ECF No. 50-23 (text of

Form I-867B); 8 C.F.R. § 235.3(b)(2)(i) (requiring use of Form

I-867AB). These questions are asked only after the

immigration officer informs an individual about the importance

of coming forward with any “fear” or “concern about being

removed from the United States or about being sent home”

because the individual “may not have another chance” to do so.

Steinberg Decl. at 94, ECF No. 50-23 (text of Form I-867A).

Make the Road does not argue here that those procedures

fell constitutionally short when applied to those arriving from

the sea or within 100 air miles of a land border. It argues only

that they run afoul of the Due Process Clause when applied

nationwide under the Expansion Order.

The difficulty for Make the Road is that, unlike the new

need to evaluate residency length as Expedited Removal

operates far away from sea and land borders, nothing about the

Expansion Order changes the nature of the credible-fear

inquiry or its analysis. Make the Road has not shown that those

facing a credible fear of persecution or harm are any more

66

likely to be present in the interior of the United States than at

its borders and abutting seas. Nor has it shown how the existing

procedures become any less reliable in ensuring compliance

with statutory protections and limitations on Expedited

Removal when asked in Illinois rather than in Arizona.

In addition, unlike the procedures’ marked silence with

respect to residency length, the Credible Fear Procedures give

affirmative and official notice to individuals that their fear of

harm is relevant to their potential removal through the

immigration officer’s repeated raising of the issue. In addition,

the Credible Fear Procedures invite individuals to provide

information about the source and nature of their fear to the

immigration officer. See 8 C.F.R. § 235.3(b)(2)(i); Steinberg

Decl. at 94, ECF No. 50-23 (Form I-867AB). If an individual

just “indicates” or “expresses” a fear of persecution or torture,

or of harm upon removal, then the individual is taken out of the

Expedited Removal process and referred for a credible-fear

interview with an asylum officer. 8 U.S.C. § 1225(b)(1)(A)(i)

& (ii); 8 C.F.R. § 235.3(b)(4). Before that interview, an

individual “may consult” with persons of their choosing and,

during the hearing, the individual “may present other evidence,

if available.” 8 C.F.R. § 208.30(d)(4). An adverse credible-

fear decision can then be appealed to an immigration judge,

which includes “an opportunity” for the individual “to be heard

and questioned[.]” 8 U.S.C. § 1225(b)(1)(B)(iii)(III). Also,

unlike the residency issue, individuals are not expected at the

time of initial detention to produce hard evidence of their

credible fear.

Nonetheless, Make the Road argues, and the district court

determined, that the procedures for determining whether an

individual has a credible fear of persecution are inadequate.

These alleged defects include that (1) the decision of whether

to refer an individual for a credible fear interview is made by

67

an immigration officer, with no review of the decision outside

of the Executive Branch, and (2) credible-fear interviews are

conducted so quickly that there is no opportunity for an

individual to gather and present evidence, or to prepare for an

appeal to an immigration judge. See Am. Compl. ¶¶ 74–84,

ECF No. 27 (citing 8 U.S.C. § 1225(b)(1)(B); 8 C.F.R.

§§ 208.30(d), 1003.42(c)); Make the Road N.Y., 2025 WL

2494908, at *15 (citing 8 U.S.C. § 1225(b)(1); 8 C.F.R.

§ 208.30(d)).

While not foreclosing the possibility that Make the Road

could make out a constitutional due process problem going

forward, at this preliminary juncture it has not shown how the

existing procedures are any less reliable when employed as a

means of implementing the expansion of Expedited Removal’s

scope, which is the only due process challenge advanced here.

Cf. Thuraissigiam, 140 S. Ct. at 1963–1964, 1982–1983 (2020)

(holding that these procedures are constitutionally sufficient

for people “at the threshold of initial entry”).

For those reasons, the Department has shown at this stage

that Make the Road is not likely to succeed in its challenge to

the Credible Fear Procedures that implement the Expansion

Order.

V

The remaining stay factors—irreparable harm, the balance

of the equities, and the public interest—also counsel against

granting the Department’s requested stay as to the Eligibility

System.

The Department has not carried its burden of showing that

it will face irreparable injury, Nken, 556 U.S. at 433–434, as is

required to secure the “extraordinary relief of a stay pending

68

appeal,” Citizens for Resp. & Ethics in Wash. v. FERC, 904

F.3d 1014, 1017 (D.C. Cir. 2018) (per curiam).

The Department’s and dissenting opinion’s primary

contention is that the government “‘suffers a form of

irreparable injury’ ‘[a]ny time [it] is enjoined by a court from

effectuating statutes enacted by representatives of its people.’”

Dep’t Stay Mot. 24 (quoting from a parenthetical in CASA, 145

S. Ct. at 2562); Dissenting Op. at 18. The district court’s

Section 705 stay order, in the Department’s view, interferes

with executive implementation of immigration law both by

“halt[ing] expedited removal” of newly designated foreign

individuals and by “interfer[ing] with the Executive’s

constitutional and statutory responsibility to remove” those

“who have no right to remain in the country—including [those]

with criminal records.” Dep’t Stay Mot. 25.

We disagree. To start, the Department overreads the

district court’s order. That stay order does not prevent the

Department from effectuating the Expedited Removal statute

to remove statutorily eligible individuals. See generally Make

the Road N.Y., 2025 WL 2494908. As the district court

underscored, the Department remains free to “implement”

“modest procedural safeguards” in pursuing Expedited

Removal of the newly designated group of individuals through

“constitutionally adequate procedures.” Id. at *19. The

Department is not irreparably harmed merely because it cannot

implement the Expedited Removal statute using

constitutionally deficient procedures. As we have explained,

the government may not “prioritize any policy goal over the

Due Process Clause.” Karem v. Trump, 960 F.3d 656, 668

(D.C. Cir. 2020) (quoting Gordon v. Holder, 721 F.3d 638, 653

(D.C. Cir. 2013)) (addressing the government’s harm in

balance of equities analysis).

69

Further, our determination that Make the Road is likely to

succeed on the merits of its due process claim, Section IV.A,

supra, “lightens the Executive’s stated interests,” Huisha-

Huisha v. Mayorkas, 27 F.4th 718, 734 (D.C. Cir. 2022). We

recognize the government’s responsibility for removing

unlawfully present individuals and appreciate that Expedited

Removal is one of the tools Congress has prescribed for doing

so. See 8 U.S.C. § 1225(b). But courts cannot “permit

agencies to act unlawfully even in pursuit of desirable ends.”

Alabama Ass’n of Realtors v. Department of Health & Hum.

Servs., 141 S. Ct. 2485, 2490 (2021) (citation omitted). Indeed,

the Supreme Court has explained that even the government’s

“significan[t]” immigration “interests” must be “pursued in a

manner consistent with the Constitution.” See A.A.R.P., 145 S.

Ct. at 1368 (temporarily enjoining summary removal of alleged

members of a terrorist organization under the Alien Enemies

Act “while the question of what notice is due is adjudicated”).

Said more simply, we have found that Make the Road is

likely to succeed in showing that the Department is not, in fact,

“effectuating [the] statute[] enacted by representatives of its

people” because it is not giving effect to the statute’s exclusion

of individuals capable of showing that they have been present

in the United States more than two years. CASA, 145 S. Ct. at

2562. That is the central problem with the Department’s choice

to proceed with no procedures in place at all to ensure the

statute is enforced within the limits Congress—the

“representatives of its people”—set. Id.

Next, the Department insists that the stay order will

“impose[] substantial administrative burdens by requiring [the

Department] to litigate [Section] 240 removal hearings if it

chooses to pursue removal,” thus leading to “reduced detention

capacity for [individual]s who are removal priorities.” Dep’t

Stay Mot. 25. But the district court’s stay order maintains the

70

status quo that has existed for decades: The Department has

litigated Section 240 removal proceedings for foreign

individuals encountered beyond the sea coasts or more than

100 air miles from the border consistently since 2004 (with at

most an arguable-but-unproven seven-month interlude). See

Section I.B, supra. The Department provides no justification

for why irreparable injury will result from continuing this

decades-long practice for a short period of time while this court

adjudicates the merits of this appeal.

In addition, the Department’s asserted administrative

injuries are too speculative to support a stay. Injuries

warranting a stay pending appeal “must be ‘both certain and

great,’ ‘actual and not theoretical,’” and “‘immin[ent]’” such

“‘that there is a clear and present need for equitable relief to

prevent irreparable harm.’” Mexichem Specialty Resins, Inc. v.

EPA, 787 F.3d 544, 555 (D.C. Cir. 2015) (quoting Chaplaincy

of Full Gospel Churches v. England, 454 F.3d 290, 297 (D.C.

Cir. 2006)). Here, the Department has not even alleged that the

district court’s order will lead them to run out of detention

capacity or will render them unable to detain individuals with

serious criminal records. Instead, it alleges that limits on

Expedited Removal will “reduce[]” to some unexplained extent

“available detention space for higher-priority removals” and

“limit” in some unexplained way “ICE’s ability to detain newly

encountered and apprehended [individual]s with serious

criminal records or other derogatory information.” Castano

Decl. ¶ 12, Dep’t Stay Mot. Ex. C. And the Department posits

that restricting Expedited Removal “may result in [deportation]

flights that are not filled to capacity, creating additional

challenges for ICE in planning and carrying out removals

efficiently.” Id. ¶ 13 (emphasis added). These vague and

speculative assertions of “what is likely to occur” are

insufficient to carry the Department’s weighty burden of

showing irreparable injury. Wisconsin Gas Co., 758 F.2d 669,

71

674 (D.C. Cir. 1985) (per curiam) (“Bare allegations of what is

likely to occur are of no value since the court must decide

whether the harm will in fact occur. The movant must provide

proof that the harm has occurred in the past and is likely to

occur again, or proof indicating that the harm is certain to occur

in the near future.”).

That is especially so because it is only a cognizable

“injury” if the Department has confined those removals,

detentions, and airline flights to individuals statutorily

authorized to be summarily removed—a showing it has not

made on this record because it admits it has no procedures in

place to differentiate between individuals based on residency

length.8

Finally, the Department’s asserted economic loss from

increased detention driving up costs, Dep’t Stay Mot. 25—

“does not, in and of itself, constitute irreparable

harm,” Wisconsin Gas, 758 F.2d at 674; accord Mexichem

Specialty Resins, Inc., 787 F.3d. at 555 (“Where the injuries

alleged are purely financial or economic, the barrier to proving

irreparable injury is higher still, for it is well settled that

economic loss does not, in and of itself, constitute irreparable

harm.” (internal quotation marks omitted)).

8

Also, of note, the Department did not raise these factual

assertions of administrative injuries in its request for a stay in the

district court. ECF 67, 14–16; see Mingo Logan Coal Co. v. EPA,

829 F.3d 710, 720 (D.C. Cir. 2016) (“Generally, an argument not

made in the lower tribunal is deemed forfeited and will not be

entertained [on appeal] absent exceptional circumstances.”) (citation

omitted). Nor is the Liana J. Castano Declaration (attached as

“Exhibit C” to the government’s Emergency Motion for an

Administrative Stay and a Stay Pending Appeal) part of the district

court record.

72

By contrast, staying the district court’s order would

irreparably harm Make the Road’s members facing an

imminent risk of removal under constitutionally inadequate

procedures. See Section IV.A, supra. As we have reiterated,

“a prospective violation of a constitutional right constitutes

irreparable injury.” Karem, 960 F.3d at 667 (internal

quotations omitted). Expedited removal proceedings begin and

end within a matter of hours or days, Hartzler Decl. ¶ 13, ECF

No. 50-16, leaving individuals caught up in such proceedings

with virtually no opportunity to obtain the procedural

protections that the Constitution guarantees prior to removal.

The statutory limitations on habeas corpus likewise provide no

such opportunity to press a due process claim to the Eligibility

System. 8 U.S.C. § 1252(e)(2).

Nor is there any realistic avenue by which Make the

Road’s members could retroactively obtain the process they

were denied after removal. See Abrego Garcia, 145 S. Ct. at

1018 (noting that the district court may have exceeded its

authority in ordering the Executive Branch to “effectuate” the

return of a wrongfully expelled individual); Make the Road

N.Y., 2025 WL 2494908, at *21 (disclaiming any power to

order the Department to provide removed individuals due

process); see also Refugee & Immigr. Ctr. for Educ. & Legal

Servs. v. Noem, No. CV 25-306, 2025 WL 1825431, at *56

(D.D.C. July 2, 2025) (noting that the government has “taken

the position that [the district court] lacks the authority to

provide relief to any [individual]s once they are removed”).

Turning to the public interest, Make the Road’s likelihood

of success on the merits of its due process claim is a “strong

indicator” that leaving in place the district court’s stay would

“serve the public interest because [t]here is generally no public

interest in the perpetuation of unlawful agency action.”

73

Shawnee Tribe v. Mnuchin, 984 F.3d 94, 102 (D.C. Cir. 2021)

(alteration in original) (quoting League of Women Voters of

U.S. v. Newby, 838 F.3d 1, 12 (D.C. Cir. 2016)) (quotation

marks omitted). It is worth reiterating that the “enforcement of

an unconstitutional law is always contrary to the public

interest.” Gordon, 721 F.3d at 653. “Plus,” as we have recently

recognized, “the Supreme Court has said that the public has a

strong interest in ‘preventing [foreign individuals] from being

wrongfully removed.’” Huisha-Huisha, 27 F.4th at 734

(quoting Nken, 556 U.S. at 436); see A.A.R.P., 145 S. Ct. at

1367.

VI

Lastly, the Department objects that the district court did

not confine the stay to Make the Road and any members it

identifies to the government. That argument bears little

prospect of success.

The APA authorizes a district court, in reviewing agency

action, to grant “[r]elief pending review” when and “to the

extent necessary to prevent irreparable injury[.]” 5 U.S.C.

§ 705. Specifically, if warranted, the court may “issue all

necessary and appropriate process to postpone the effective

date of any agency action or to preserve status or rights pending

conclusion of the review proceedings.” Id.

Relying on that statutory authority, the district court

ordered that:

[P]ending conclusion of the review proceedings, the

effective dates of implementation and enforcement of

the January 21 Designation Notice and the January 23

Huffman Memorandum, insofar as it implements the

74

January 21 Designation Notice, are immediately

postponed and stayed.

Dist. Ct. Stay Order, ECF No. 65, at 1.

The Department argues that the district court’s order

amounts to a “universal stay” that exceeds the authority granted

by Section 705. Dep’t Stay Mot. 26. Relying on Trump v.

CASA, Inc., 145 S. Ct. 2540 (2025), the Department argues that

this court must “limit” the district court’s stay so that it applies

only to Make the Road’s clients, Dep’t Stay Mot. 26 (quotation

marks omitted), who necessarily would have to be identified in

advance to benefit from the order’s protections. That argument

is unlikely to succeed for three reasons.

First, CASA does not control the scope of relief available

under Section 705. In CASA, the Supreme Court answered the

question “whether Congress has granted federal courts the

authority to universally enjoin the enforcement of an executive

or legislative policy[.]” 145 S. Ct. at 2550. To do so, the Court

looked to the statute under which the courts had entered the

injunctions at issue: the Judiciary Act of 1789. That statute

endows federal courts with jurisdiction over “all suits * * * in

equity.” Id. at 2551 (quoting § 11, 1 Stat. 78). The Court then

reasoned that the scope of the authority granted is analogous to

that wielded “by the High Court of Chancery in England at the

time of the adoption of the Constitution and the enactment of

the original Judiciary Act.” Id. (quoting Grupo Mexicano de

Desarrollo, S.A. v. Alliance Bond Fund, Inc., 527 U.S. 308,

318–319 (1999)). The Court also surveyed the practices of

“founding-era courts of equity.” Id.

Drawing from those historical predicates, the Supreme

Court concluded that so-called “universal injunctions”—

injunctions tailored to the defendant’s unlawful action rather

75

than the plaintiff’s harms—“lack[] a historical pedigree,” and

so “fall[] outside the bounds of a federal court’s equitable

authority under the Judiciary Act.” CASA, 145 S. Ct. at 2554;

see id. at 2567 (Kavanaugh, J., concurring) (“Under [CASA],

district courts issuing injunctions under the authority afforded

by the Judiciary Act of 1789 may award only plaintiff-specific

relief.”).

As the Court’s analysis shows, CASA is a statutory-

interpretation case, and the statute interpreted was the Judiciary

Act of 1789. Necessarily then, CASA is not a case about the

scope of relief for agency review authorized by the APA when

it was adopted in 1946. The Supreme Court has said as much:

“Nothing” in CASA “resolves the distinct question whether the

Administrative Procedure Act authorizes federal courts” to

issue defendant-specific relief. 145 S. Ct. 2554 n.10; see also

id. at 2567 (Kavanaugh, J., concurring) (“[I]n cases under the

Administrative Procedure Act, plaintiffs may ask a court to

preliminarily set aside a new agency rule.”) (quotation marks

omitted). The Department accordingly does next to nothing to

advance the ball by pointing to CASA as the source of its

purported limitation on the scope of stay relief under the APA.

Second, the Department’s argument that CASA shows that

“‘irreparable injury’ in the context of interim equitable relief

refers to irreparable injury to the plaintiff—not third parties”

does not hold up. Dep’t Stay Mot. 26 (citing Immigrant Defs.

Law Ctr., 145 F.4th at 996).

For starters, the Department’s party-specific-relief rule ill

fits Section 705’s text. Section 705 empowers courts “to

postpone the effective date of an agency action[.]” 5 U.S.C.

§ 705 (emphasis added). As explained, in Section III.D, supra,

Section 705 stays operate on the legal source of authority for

76

an agency to act at all. They generally do not simply insulate

certain parties from enforcement measures.

Section 705 also speaks in terms of “the effective date” of

an agency rule or policy. 5 U.S.C. § 705 (emphasis added).

“[T]hat definite article suggests specificity.” Noel Canning v.

NLRB, 705 F.3d 490, 500 (D.C. Cir. 2013). Which makes

sense because agency orders, regulations, and rules almost

always have but one effective date. If a court orders that an

agency action shall not apply against certain individuals, but

that the agency can apply that action against everyone else, the

effective date of the action has not been postponed.

To be sure, Section 705 stays can only operate “to the

extent necessary to prevent irreparable injury[.]” 5 U.S.C.

§ 705. That just means that courts should stay the effective

date only of those portions of the agency action that are

inflicting injury. For example, if one severable piece of an

omnibus rulemaking is at issue, a district court should postpone

the effective date of the severable piece and let the other

portions of the rule take effect as scheduled. See Career Colls.

& Schs. of Texas v. Department of Educ., 98 F.4th 220, 255

(5th Cir. 2024) (Section 705 “relief should only involve

postponing the effective date of the portions of the [agency

action] that [the plaintiff] actually challenges and for which it

has shown a likelihood of success on the merits.”) (emphasis

omitted).

That is exactly what this court is doing. Because Make the

Road is likely to succeed on the merits of its challenge to the

Eligibility System, we deny the government’s application to

stay the district court’s Section 705 order postponing the

effective date of those portions of the Expansion Order and

Huffman Memorandum adopting that system. But because

Make the Road is unlikely to succeed on its challenge to the

77

Credible Fear Procedures, we are granting a stay of that portion

of the district court’s Section 705 stay order.

In addition to the textual indicia cutting against the

Department’s position, the Department has not shown that the

background equitable principles at play in CASA translate to

the APA. In fact, there is good reason to think that Congress

did not intend to incorporate “background equitable principles”

into the APA. Corner Post, Inc. v. Board of Governors of Fed.

Reserve Sys., 144 S. Ct. 2440, 2467 (2024) (Kavanaugh, J.,

concurring). “‘Unlike judicial review of statutes, in which

courts enter judgments and decrees only against litigants, the

APA’ and related statutory provisions ‘go further by

empowering the judiciary to act directly against the challenged

agency action.’” Id. (quoting Jonathan F. Mitchell, The Writ-

of-Erasure Fallacy, 104 Va. L. Rev. 933, 1012 (2018)). That

“depart[ure]” from traditional equity follows from Congress’s

understanding that the APA tasked courts with reviewing

agency actions “the same way that appellate courts [review] the

judgments of trial courts.” Id.

As a result, the founding-era history and tradition of equity

that underlay CASA says little about the framework for judicial

review that informed the APA’s remedial provisions. And the

Department, for its part, has not made any argument or showing

that, at the time of the APA’s enactment, relief ordered by

courts in analogous circumstances in the first half of the 20th

Century was confined to party-specific remedies. In fact,

caselaw suggests otherwise. See Scripps-Howard Radio v.

FCC, 316 U.S. 4, 16–17 (1942) (A statute providing for judicial

review of agency action but lacking express authority to issue

stays “affords no warrant for depriving the Court of Appeals of

the conventional power of an appellate court to stay the

enforcement of an order pending the determination of an

appeal[] challenging its validity”—“a power as old as the

78

judicial system of the nation.”); Chicago, Rock Island & Pac.

Ry. Co. v. United States, 284 U.S. 80, 87, 96, 100 (1931)

(“[T]he court below should have set aside paragraph (5) of” an

Interstate Commerce Commission regulation governing “[a]ll

common carriers by railroad in the United States” because that

portion of the regulation “is in flat opposition to the [underlying

policy] finding and cannot be permitted to stand.”).9

Third, the Department’s procrustean effort to stretch

CASA’s plaintiff-specific remedial framework onto the APA

defies “countless” precedents to the contrary. Corner Post, 144

S. Ct. at 2463 (Kavanaugh, J., concurring). The Supreme Court

regularly, repeatedly, and recently has applied Section 705’s

statutory neighbor, Section 706, to provide universal relief

under the APA. E.g., Department of Homeland Security v.

Regents of Univ. of Cal., 140 S. Ct. 1891, 1916 & n.7 (2020);

Whitman v. American Trucking Ass’ns, 531 U.S. 457, 486

(2001); Board of Governors of Fed. Reserve Sys. v. Dimension

Fin. Corp., 474 U.S. 361, 364–365 (1986). And we have held,

in binding precedent that controls our action on this stay

motion, that “[w]hen a reviewing court determines that agency

regulations are unlawful, the ordinary result is that the rules are

vacated—not that their application to the individual petitioners

is proscribed.” Harmon, 878 F.2d at 495 n.21; see Bridgeport

9

See also Corner Post, 144 S. Ct. at 2468 (Kavanaugh, J.,

concurring) (observing that “examples abound” of relevant historical

analogues for universal relief under the APA); Mila Sohoni, The Past

and Future of Universal Vacatur, 133 Yale L.J. 2304, 2326–2335,

2354–2359 (2024) (collecting examples from immediately before

and after the APA); Robert H. Jackson, Final Report of Attorney

General’s Committee on Administrative Procedure 116–117 (1941)

(Under “the recent statutes conferring rule-making power” on

agencies, a reviewing court’s “judgment adverse to a regulation

results in setting it aside.”).

79

Hosp., 108 F.4th at 890 (“When an agency’s action is unlawful,

vacatur is the normal remedy.”) (quotation marks omitted).

The story is the same under Section 705. In recent years

the Supreme Court has twice stayed agency actions in toto

pending judicial review without narrowing its relief to the

parties at hand. NFIB v. OSHA, 142 S. Ct. 661, 664 (2022)

(universally staying vaccine mandate); West Virginia v. EPA,

577 U.S. 1126, 1126 (2016) (universally staying Clean Power

Plan). And this court too has long recognized the availability

of such relief. See In re GTE Serv. Corp., 762 F.2d 1024, 1026

(D.C. Cir. 1985).10

For all of those reasons, the Department is unlikely to

succeed in its argument that Section 705 stays must be confined

to the plaintiffs before the court.

VII

In conclusion, we deny the Department’s motion for an

administrative stay and a stay pending appeal of the district

court’s order suspending the effective dates of those portions

of the Expansion Order and Huffman Memorandum that

establish the Eligibility System for Expedited Removal. We

grant a stay to the extent that the district court’s order required

10

When the government first previewed its theory of plaintiff-

specific relief under the APA at oral argument in United States v.

Texas, 143 S. Ct. 1964 (2023), Chief Justice Roberts exclaimed

“Wow” before noting that the government’s position would

undermine “what the D.C. Circuit and other courts of appeals have

been doing all the time as a staple of their decision output[,]” which

decisions the Supreme Court has upheld “over and over and over

again.” Transcript of Oral Argument at 36, 38, Texas, 143 S. Ct.

1964 (No. 22-58).

80

any changes to the Credible Fear Procedures for those

individuals who qualify for Expedited Removal. We

previously issued an order expediting the appeal, which will be

heard in December 2025.

RAO, Circuit Judge, dissenting: The Secretary of the

Department of Homeland Security (“DHS”) expanded the

application of expedited removal procedures to all aliens

eligible under the Illegal Immigration Reform and Immigrant

Responsibility Act (“IIRIRA”). The Secretary explained that

this will “enhance national security and public safety” and that

“full application of expedited removal authority will enable

DHS to address more effectively and efficiently the large

volume of aliens who are present in the United States

unlawfully.” Designating Aliens for Expedited Removal, 90

Fed. Reg. 8139, 8139 (Jan. 24, 2025) (the “Designation

Notice”).

The district court stayed implementation of the Secretary’s

decision, concluding that Make the Road was likely to succeed

on its due process claim and that interim relief was appropriate

under the Administrative Procedure Act (“APA”). The

government seeks a stay of the district court’s order pending

appeal so that it may continue to carry out its immigration

enforcement priorities.

I would grant the government’s motion. The government

is likely to succeed on the merits because there are at least three

threshold problems with the stay ordered by the district court.

First, the district court lacked jurisdiction to entertain Make the

Road’s due process claim, which challenges longstanding

procedures used to carry out expedited removals. Those

procedures had to be challenged within 60 days of when they

were first implemented, which all agree occurred years ago.

Second, even assuming it had jurisdiction over Make the

Road’s due process claim, the district court erred by ordering a

stay under APA section 705 as a remedy for a non-APA claim.

And finally, regardless of the underlying source of remedial

authority, the district court’s sweeping stay order is barred by

IIRIRA’s strict limitations on judicial relief. The government

suffers irreparable harm from this impermissible judicial

interference with the Secretary’s authority to carry out

2

expedited removals, and the balance of the equities tips in the

government’s favor. I respectfully dissent.

I.

IIRIRA amended the Immigration and Nationality Act

(“INA”) “to substantially shorten and speed up the removal

process” for aliens not lawfully admitted to this country. Make

the Road N.Y. v. Wolf (“Make the Road I”), 962 F.3d 612, 618

(D.C. Cir. 2020). As relevant here, expedited removal

proceedings may be initiated against certain inadmissible

aliens who have “not affirmatively shown, to the satisfaction of

an immigration officer,” that they have been continuously

present in the country for two years. 8 U.S.C.

§ 1225(b)(1)(A)(iii)(II). The Secretary may designate “any or

all” such aliens for expedited removal.1 8 U.S.C.

§ 1225(b)(1)(A)(iii)(I).

Two features of IIRIRA’s expedited removal regime are

especially relevant to this case. First, the Secretary’s decision

to designate eligible aliens for expedited removal is not

reviewable under the APA because it is committed to the

Secretary’s “sole and unreviewable discretion.” Id.; see Make

the Road I, 962 F.3d at 631–35. Second, while this court has

interpreted IIRIRA to permit judicial review of policies

implementing the expedited removal statute, such review is

subject to jurisdictional and remedial limitations. A challenge

to any such policy must be “filed no later than 60 days after” it

is “first implemented.” 8 U.S.C. § 1252(e)(3)(B). And lower

courts are stripped of “jurisdiction or authority to enjoin or

restrain the operation of” the expedited removal provisions

1

Section 1225(b) refers to the Attorney General, whose authority

under the statute has since been transferred to the Secretary of DHS.

See 6 U.S.C. §§ 251, 557.

3

(except in individual removal proceedings, which are not at

issue here). Id. § 1252(f)(1).

For years, the only aliens designated by the Secretary for

expedited removal were those who arrived by sea and those

who, having arrived by land, were apprehended within 100

miles of the border and within 14 days of entry. In January

2025, the Secretary issued a designation expanding expedited

removal “to the fullest extent authorized by statute.”

Designation Notice, 90 Fed. Reg. at 8139. This permitted the

application of expedited removal procedures to inadmissible

aliens apprehended anywhere in the country who could not

show at least two years of continuous physical presence. The

Secretary also issued a guidance memorandum for

implementation of the designation. DHS, Guidance Regarding

How to Exercise Enforcement Discretion (Jan. 23, 2025) (the

“Guidance”). The Guidance did not impose any new

procedures for carrying out expedited removals.

Make the Road filed this lawsuit challenging the

Designation Notice and Guidance, asserting violations of the

APA as well as a constitutional claim that the procedures for

expedited removal violated the Fifth Amendment’s Due

Process Clause. Although IIRIRA generally bars judicial

review of actions related to expedited removal, Make the Road

averred that its claims fell within a narrow jurisdictional

exception. See 8 U.S.C. § 1252(e)(3)(A). Under Make the Road

I, this exception confers jurisdiction over pre-enforcement

challenges to written policies and procedures implementing the

expedited removal statute. See 962 F.3d at 625–26.

In June 2025, Make the Road sought interim relief—but

not in the form of a preliminary injunction, which would be

squarely barred by section 1252(f)(1). See Garland v. Aleman

Gonzalez, 142 S. Ct. 2057, 2064–65 (2022). Instead, Make the

4

Road invoked 5 U.S.C. § 705, the APA provision for relief

pending judicial review. Explaining that Make the Road was

“seeking a stay,” rather than an injunction, the district court

relied on section 705 to stay implementation of the Designation

Notice and Guidance. Make the Road N.Y. v. Noem, 2025 WL

2494908, at *7–9 & n.14 (D.D.C. Aug. 29, 2025). The court

expressly declined to address the government’s argument,

based on Make the Road I, that the designation decision was

committed to the Secretary’s discretion by law and thus

unreviewable under the APA. The district court also made clear

that it did not reach the APA claims and instead rested the grant

of section 705 relief exclusively on Make the Road’s non-APA

due process claim. The government moved for a stay.

II.

To prevail on an application for a stay pending appeal, the

applicant must make “a strong showing that it is likely to

succeed on the merits” of its appeal, “that it will be irreparably

injured absent a stay, that the balance of the equities favors it,

and that a stay is consistent with the public interest.” Whole

Woman’s Health v. Jackson, 141 S. Ct. 2494, 2495 (2021)

(cleaned up). The most critical of these factors is the likelihood

of success on the merits. See Ohio v. EPA, 144 S. Ct. 2040,

2052–53 (2024). When the government is a party, the balance

of the equities and public interest factors merge. See Nken v.

Holder, 556 U.S. 418, 435 (2009).

III.

The government is likely to prevail on the merits because

the relief ordered by the district court is foreclosed in multiple

ways.2 First, Make the Road’s due process claim—the only

2

I agree with my colleagues that we have appellate jurisdiction

because the district court’s order has the “practical effect” of granting

5

claim the district court addressed—challenges the adequacy of

longstanding procedures used to carry out expedited removals.

Because these procedures were first implemented more than 60

days before Make the Road’s lawsuit was filed, this due

process challenge is barred by section 1252(e)(3)(B)’s

jurisdictional time bar. Moreover, even if Make the Road’s due

process claim is characterized as a challenge to the issuance of

the Designation Notice and Guidance, such that it was timely,

the district court lacked authority to grant relief predicated on

section 705 of the APA. Such relief was not available here

because the district court considered only a non-APA, i.e.,

equitable, constitutional claim. Finally, even if relief under

section 705 were available, the district court’s stay is barred

because it “restrain[s] the operation of” IIRIRA’s expedited

removal provisions outside the context of an individual

removal proceeding. 8 U.S.C. § 1252(f)(1).

A.

Section 1252(e)(3)’s jurisdictional time bar precludes

Make the Road’s due process claim. A lawsuit under

subsection (e)(3) “must be filed no later than 60 days after the

date the challenged section, regulation, directive, guideline, or

procedure … is first implemented.” 8 U.S.C. § 1252(e)(3)(B).

This time bar is jurisdictional, so it cannot be forfeited and is

not subject to equitable tolling. M.M.V. v. Garland, 1 F.4th

1100, 1108–10 & n.6 (D.C. Cir. 2021). The key question for

whether a claim is timely under section 1252(e)(3)(B)—and

whether judicial review is available—is when the relevant

policy or procedure was “first implemented.” “[F]irst

an injunction, has irreparable consequences, and can be effectively

challenged only by immediate appeal. See Salazar ex rel. Salazar v.

District of Columbia, 671 F.3d 1258, 1261–62 (D.C. Cir. 2012)

(applying Carson v. Am. Brands, Inc., 450 U.S. 79 (1981)).

6

implemented” can mean either when the policy or procedure is

promulgated or when it is first applied anywhere—but “not

when it is first applied” to the specific alien(s) bringing a legal

challenge. M.M.V., 1 F.4th at 1108–09; accord Mendoza-

Linares v. Garland, 51 F.4th 1146, 1157 (9th Cir. 2022).

Make the Road’s due process claim is foreclosed by the

60-day time bar. As the district court recognized, the due

process claim challenges the adequacy of preexisting expedited

removal procedures as applied to the expanded class of aliens.

See Make the Road N.Y., 2025 WL 2494908, at *14–18; see

also Majority Op. 58–60 (analyzing preexisting procedures).

The Designation Notice and Guidance direct DHS to extend

expedited removal to a new class of aliens, but neither

document sets out new procedures. Rather, they direct the

agency to apply preexisting expedited removal procedures to

these aliens. See Majority Op. 16 (“[T]he Department made the

decision to apply only its preexisting procedures.”); 8 C.F.R.

§ 235.3(b) (codifying procedures). These

“challenged … procedure[s]” were “first implemented,” at the

latest, when the government firs

This text is long and has been trimmed here. Open the source document for the complete record.