Opinion

Refugee and Immigrant Center for Education and Legal Services v. Markwayne Mullin

Court: Court of Appeals for the D.C. Circuit
Filed: Apr 24, 2026
Status: Published
Cited by: 0 cases

The opinion

United States Court of Appeals

FOR THE DISTRICT OF COLUMBIA CIRCUIT

Argued November 3, 2025 Decided April 24, 2026

No. 25-5243

REFUGEE AND IMMIGRANT CENTER FOR EDUCATION AND LEGAL

SERVICES, ET AL.,

APPELLEES

MARKWAYNE MULLIN, SECRETARY OF THE U.S. DEPARTMENT OF

HOMELAND SECURITY, IN HIS OFFICIAL CAPACITY, ET AL.,

APPELLANTS

Appeal from the United States District Court

for the District of Columbia

(No. 1:25-cv-00306)

Drew C. Ensign, Deputy Assistant Attorney General, U.S.

Department of Justice, argued the cause for appellants. With him

on the briefs were Brett A. Shumate, Assistant Attorney General,

Yaakov M. Roth, Principal Deputy Assistant Attorney General,

Benjamin Hayes, Special Counsel to the Assistant Attorney General,

and David Kim and Katherine J. Shinners, Senior Litigation

Counsel, Office of Immigration and Litigation, General Litigation

and Appeals Section.

Christopher J. Hajec and Matt A. Crapo were on the brief

for amicus curiae Federation for American Immigration Reform in

support of appellants.

Patrick M. McSweeney, William J. Olson, and Jeremiah L.

Morgan were on the brief for amicus curiae America’s Future in

support of appellants.

Lee Gelernt argued the cause for appellees. With him on the

brief were Keren Zwick, Melissa Crow, Omar C. Jadwat, Morgan

Russell, Cody Wofsy, Richard Caldarone, Arthur B. Spitzer, and

Scott Michelman. Lindsay Harrison entered an appearance.

Thomas A. Berry was on the brief for amicus curiae the Cato

Institute in support of appellees.

Elizabeth B. Wydra and Brianne J. Gorod were on the brief

for amicus curiae Constitutional Accountability Center in support

of appellees.

Ian M. Kysel, Courtney Bell, Student Counsel, and Michael

Garcia Bochenek were on the brief for amici curiae the Global

Strategic Litigation Council, et al. in support of appellees.

Before: PILLARD, WALKER and CHILDS, Circuit Judges.

Opinion for the Court filed by Circuit Judge CHILDS.

Opinion concurring in part and dissenting in part filed by

Circuit Judge WALKER.

CHILDS, Circuit Judge: More than a century of precedent

assures that “over no conceivable subject is the legislative power of

Congress more complete” than it is over the admission of foreign

individuals. Dep’t of State v. Muñoz, 602 U.S. 899, 903 (2024)

(quoting Oceanic Steam Navigation Co. v. Stranahan, 214 U.S. 320,

339 (1909)); see also INS v. Chadha, 462 U.S. 919, 940 (1983)

(“The plenary authority of Congress over aliens under Art. I, § 8, cl.

4 is not open to question.”).

Exercising this “broad power over naturalization and

immigration,” Demore v. Kim, 538 U.S. 510, 521 (2003), Congress

enacted the Immigration and Nationality Act of 1952 (INA), 8

U.S.C. § 1101 et seq. The INA created a comprehensive and

detailed scheme addressing all aspects of immigration. It articulates

why and how foreign individuals may be admitted to our country

and why and how they may be removed. In addition, federal law

provides various forms of relief to foreign individuals who face

persecution or torture if deported. Those protections include, as

pertinent here, asylum, withholding of removal under the INA, and

withholding of removal under the Convention Against Torture.

On Inauguration Day 2025, President Trump issued

Proclamation 10888 (Proclamation). The Proclamation declares

that “the current situation at the southern border qualifies as an

invasion” because “[t]he sheer number” of foreign individuals

“entering the United States has overwhelmed the system” and is

“prevent[ing] the Federal Government from obtaining operational

control of the border.” Proclamation No. 10888, Guaranteeing the

States Protection Against Invasion, 90 Fed. Reg. 8,333, 8,334–35

(Jan. 20, 2025). Invoking authority from various provisions of the

INA, the Proclamation and subsequently issued agency guidance

(Guidance) suspend the entry of any person who has crossed the

southern border outside a designated port of entry, as well as any

person crossing at a designated entry port anywhere without

sufficient documentation. The Proclamation and Guidance also

subject those individuals who have entered the country despite the

entry ban to new summary removal procedures without the rights

the INA provides to seek asylum or other removal protections.

Shortly thereafter, thirteen individuals proceeding

pseudonymously and three nonprofit organizations—Refugee and

Immigrant Center for Education and Legal Services, Las Americas

Immigrant Advocacy Center, and Florence Immigrant and Refugee

Rights Project—filed a putative class action claiming that the

Proclamation and Guidance violate the INA. The Proclamation’s

authority to suspend entry is not challenged here. This case

addresses only whether that entry-authority encompasses the power

to order removals using new procedures that supplant the INA’s

existing removal procedures. The district court certified a class

consisting of all individuals subject to the Proclamation, declared

the Guidance unlawful and vacated it, and enjoined agency officials

from perpetrating that same unlawful action under the Proclamation.

The Government now appeals.

This is a statutory interpretation case. Our task is to determine

whether Congress has granted the Executive the authority to remove

foreign individuals present in the United States without adhering to

the removal procedures or providing the substantive removal

protections that Congress prescribed in the INA.

We conclude that the INA’s text, structure, and history make

clear that in supplying power to suspend entry by Presidential

proclamation, Congress did not intend to grant the Executive the

expansive removal authority it asserts. The Proclamation and

Guidance are thus unlawful to the extent that they circumvent the

INA’s removal procedures and cast aside federal laws affording

individuals the right to apply and be considered for asylum or

withholding of removal protections. Accordingly, we affirm the

district court’s grant of summary judgment in favor of Plaintiffs.

We also affirm the district court’s class certification order,

modifying the class definition as clarified by this opinion.

Congress enacted the INA as an exercise of its “plenary power”

over the creation of our Nation’s immigration laws. Zadvydas v.

Davis, 533 U.S. 678, 695 (2001); see also Galvan v. Press, 347 U.S.

522, 531 (1954) (observing Congress is “exclusively” responsible

for “formulating” the “[p]olicies pertaining to the entry of [foreign

individuals] and their right to remain here”).

The INA established a comprehensive framework governing all

aspects of immigration, including entry and admissibility of foreign

individuals into the United States, 8 U.S.C. §§ 1181, 1182, 1184, the

criteria and procedures for removing those who are here but should

not be, id. §§ 1227, 1225(b)(1), 1229a, and the protections afforded

to individuals subject to removal, see, e.g., id. §§ 1158, 1231(b)(3).

When it was first enacted, the INA defined the term “entry” as

“any coming of an alien into the United States, from a foreign port

or place or from an outlying possession, whether voluntarily or

otherwise.” Pub. L. No. 82-414, § 101(a)(13), 66 Stat. 163, 167

(1952). That definition codified a technical and historical

understanding of the term “entry” as requiring “an arrival from some

foreign port or place.” Barber v. Gonzales, 347 U.S. 637, 641–42

& n.3 (1954); see Vartelas v. Holder, 566 U.S. 257, 261 (2012)

(explaining the same). So, the term entry connotes physically

coming into the United States, irrespective of the individual’s

method of entry or their admitted status.

Section 1182 delineates the grounds of inadmissibility and

identifies the classes of foreign persons who are ineligible for

admission. 8 U.S.C. § 1182(a)(1)–(10); see, e.g., id. § 1182(a)(2)

(criminal history and related grounds), (a)(3)(B) (terrorist

activities), (a)(3)(C) (foreign policy). By specifying categories of

foreign individuals who are inadmissible in Section 1182(a),

Congress has, in turn, also “defined the universe of [individuals]

who are admissible.” Trump v. Hawaii, 585 U.S. 667, 695 (2018).

In addition, Congress has “delegated to the President authority

to suspend or restrict the entry of aliens in certain circumstances.”

Id. at 683. That authority is found in Sections 1182(f) and 1185(a)

of the INA. See id. at 683 n.1.

Section 1182(f) allows the President “by proclamation” to

“suspend the entry” of “any aliens or of any class of aliens” he finds

“would be detrimental to the interests of the United States.” 8

U.S.C. § 1182(f). Such entry suspension can last “for such period

as he shall deem necessary.” Id. Section 1182(f)’s proclamation

power “provides a safeguard against the danger posed by any

particular case or class of cases that is not covered by one of the

[non-admissibility] categories in section 1182(a).” Abourezk v.

Reagan, 785 F.2d 1043, 1049 n.2 (D.C. Cir. 1986), aff’d, 484 U.S.

1 (1987). The INA includes no corresponding provision

empowering the President to suspend the statute’s expressly

mandatory and exclusive procedures for removing individuals

already present in the United States.

Section 1185, titled “Travel control of citizens and aliens,”

allows the President to adopt “reasonable rules, regulations, and

orders” to supplement and effectuate the INA’s statutory provisions

governing any foreign person’s “depart[ure] from or ent[ry into] . . .

the United States . . . subject to such limitations and exceptions as

[he] may prescribe.” 8 U.S.C. § 1185(a)(1).

Foreign individuals who have entered the United States but are

not legally authorized to be here are subject to “removal.” Id.

§§ 1225(b)(1)(A), 1229a. The INA and its implementing

regulations provide comprehensive procedures for removing such

individuals. These procedures detail the grounds on which foreign

individuals may be removed, the process the Executive must follow,

and the rights of individuals facing removal.

The INA authorizes the Executive to remove a foreign

individual from the United States but confines that authority to only

two specified methods: regular removal under 8 U.S.C. § 1229a or

expedited removal under 8 U.S.C. § 1225(b)(1). Regular removal is

the “sole and exclusive procedure” for removal of foreign

individuals “[u]nless otherwise specified in [the INA].” Id.

§ 1229a(a)(3); see Refugee & Immigrant Ctr. for Educ. and Legal

Servs. v. Noem (RAICES), 793 F. Supp. 3d 19, 79 n.2 (D.D.C. 2025).

So far, Congress has only “otherwise specified” one additional

removal procedure: “expedited removal,” see United States v.

Guzman, 998 F.3d 562, 567 (4th Cir. 2021), which applies to two

classes of foreign individuals who are inadmissible because they

lack valid papers or made misrepresentations in seeking protections

under the INA, see 8 U.S.C. § 1225(b)(1)(A)(i) (referencing

individuals generally inadmissible under “section 212(a)(6)(C) or

212(a)(7) of the INA,” now codified at 8 U.S.C. § 1182(a)(6)(C),

(a)(7)).

Regular removal proceedings are as follows: Individuals

present in the United States whom the Executive charges as

removable are afforded the right to a hearing before an immigration

judge whose decision may be appealed to the Board of Immigration

Appeals and, in turn, to a federal court of appeals. See id. §§ 1229,

1229a, 1252; 8 C.F.R. § 1003.1. Removal proceedings before an

immigration judge are formal, adversarial hearings, and the

immigration judge has an affirmative duty to develop a record. See

8 U.S.C. § 1229a(a)(1), (b)(1); 8 C.F.R. § 1003.10(b). At the

hearing, the foreign individual may be represented by counsel,

present evidence, examine witnesses, and challenge the

government’s evidence. See 8 U.S.C. § 1229a(b)(4). An individual

may avoid removal by either showing that she is “entitled to be

admitted” or has been so admitted, id. § 1229a(c)(2), or by

demonstrating her entitlement to relief from removal by way of

asylum or withholding of removal under the INA or the Convention

Against Torture. See id. § 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, 594 U.S. 523, 527–29 (2021) (detailing

the regular removal process).

The second process, expedited removal, “lives up to its name.”

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

Congress has authorized the Executive to apply expedited removal

to individuals “who [are] arriving in the United States,” 8 U.S.C.

§ 1225(b)(1)(A)(i), and to those who are not admitted or paroled and

have “not affirmatively shown” to the immigration officer’s

satisfaction that they have been “physically present in the United

States continuously” for two or more years. Id.

§ 1225(b)(1)(A)(iii)(II). If an individual is subject to expedited

removal, an immigration officer “shall order the alien removed . . .

without further hearing or review unless the alien indicates either an

intention to apply for asylum . . . or a fear of persecution.” Id.

§ 1225(b)(1)(A)(i). “Absent such an indication, all that stands

between that individual and removal is a paper review by the

officer’s supervisor.” Make the Rd. N.Y., 962 F.3d at 619 (citing 8

C.F.R. § 235.3(b)(7)).

Regardless of the removal path, federal law provides limited

statutory protections to individuals who have entered the United

States, even without authorization, who face risks of torture or

persecution if removed. Three such forms of relief are central to this

appeal: asylum under 8 U.S.C. § 1158, withholding of removal

under 8 U.S.C. § 1231(b)(3)(A), and withholding of removal under

the Convention Against Torture, Foreign Affairs Reform and

Restructuring Act of 1998 (FARRA), Pub. L. No. 105-277, § 2242,

112 Stat. 2681-822 (1998) (codified at 8 U.S.C. § 1231 note).

The most protective form of relief is asylum. See 8 U.S.C.

§ 1158. Asylum is generally available to any individual who is a

“refugee,” which the statute defines as any individual who is

“unable or unwilling to return to” or “avail . . . herself of the

protection of” her country of nationality (or the last country where

she resided) “because of persecution or a well-founded fear of

persecution on account of race, religion, nationality, membership in

a particular social group, or political opinion.” Id. § 1101(a)(42)(A).

Asylum confers valuable benefits including protections from

deportation or removal, id. § 1158(c)(1)(A); 8 C.F.R. § 208.22, legal

permission to work in the United States, 8 U.S.C § 1158(c)(1)(B), a

pathway to seek lawful permanent residence, 8 C.F.R. § 209.2, and,

eventually, citizenship, 8 U.S.C. § 1429. Congress directed the

Attorney General to “establish a procedure for the consideration of

asylum applications.” Id. § 1158(d)(1); see also id. § 1158(d)(5)(A)

(mandating certain procedures).

Per the INA, “[a]ny [individual] who is physically present in

the United States or who arrives in the United States” may apply for

asylum “irrespective of [their] status” and “whether or not” they

arrived “at a designated port of arrival.” Id. § 1158(a). Individuals

in removal proceedings—whether regular or expedited—may file an

asylum application which, if granted, is a defense against removal.

See id. § 1229a(c)(4); 8 C.F.R. § 208.2(b); 8 U.S.C.

§ 1225(b)(1)(A)(i); 8 C.F.R. § 208.30(f). 1

Congress has enumerated only three exceptions to the right to

apply for asylum: Individuals are precluded from applying if

(1) they can be removed to a safe third country, as determined by

the Attorney General, where they may seek asylum; (2) they fail to

apply for asylum within one year of arriving in the United States; or

Individuals who are not in any kind of removal proceeding may

also file an affirmative application for asylum. 8 U.S.C.

§ 1158(a)(1); 8 C.F.R. § 208.1(a)(1).

(3) they have previously applied for and been denied asylum. 8

U.S.C. § 1158(a)(2)(A)–(C). These application-right exceptions are

in turn subject to carveouts not relevant here. See id.

§ 1158(a)(2)(D)–(E). The INA otherwise guarantees the right to

apply for asylum.

Notably, the statutory right to apply reaches even foreign

individuals whom the statute renders ineligible to receive it. Not all

applicants who meet the statutory definition of refugee are eligible

for asylum. The INA lists categories of otherwise qualified persons

who are nevertheless ineligible for asylum. Among the INA’s

enumerated eligibility exceptions is a bar against granting asylum

“if the Attorney General determines that” an applicant has

“participated in the persecution of any person” on account of a

protected ground, has been convicted of a “particularly serious

crime,” or “there are reasonable grounds for regarding” them to be

a “danger to the security of the United States.” Id.

§ 1158(b)(2)(A)(i), (ii), (iv). In addition to these statutory

ineligibilities, “[t]he Attorney General may by regulation establish

additional limitations and conditions, consistent with this section,

under which an alien shall be ineligible for asylum.” Id.

§ 1158(b)(2)(C). The requirement to proceed by regulation also

applies to “any other conditions or limitations on the consideration

of an application for asylum.” Id. § 1158(d)(5)(B).

Yet even an applicant who successfully establishes refugee

status and is otherwise eligible may nevertheless be denied, because

asylum is a form of “discretionary relief.” Moncrieffe v. Holder,

569 U.S. 184, 187 (2013); see INS v. Aguirre–Aguirre, 526 U.S.

415, 420 (1999) (“[T]he decision whether asylum should be granted

to an eligible alien is committed to the Attorney General’s

discretion.” (citation omitted)). The statute provides only that, when

all stars align for a refugee, the Attorney General or the Secretary of

the Department of Homeland Security (DHS) “may grant asylum.”

See 8 U.S.C. § 1158(b)(1)(A) (emphasis added). Discretionary

denials are, however, reviewable in federal court and cannot be

“manifestly contrary to the law” or “an abuse of discretion.” Id.

§ 1252(b)(4)(D). The Executive has for decades consistently

followed a case-specific approach to discretionary denials of asylum

to individuals who meet the statutory criteria, and such denials are

“exceedingly rare.” Thatomar v. U.S. Att’y Gen., 1 F.4th 958, 971

(11th Cir. 2021) (citation omitted).

In addition to asylum, two other forms of removal protection

are available: withholding of removal under the INA and under the

Convention Against Torture. Each applies only as protection

against particularly grave types of risk, and neither allows an

individual to remain in the United States. 8 U.S.C. § 1231(b)(3)(A);

8 C.F.R. § 1208.17(a). Each does, however, offer individuals

valuable protections by restricting countries to which an individual

may be removed. See Guzman Chavez, 594 U.S. at 536–37

(distinguishing “withholding-only relief” from asylum (citations

omitted)).

The first type of withholding of removal, under 8 U.S.C.

§ 1231, forbids the Attorney General from removing a foreign

individual “to a country if the Attorney General decides” that the

individual’s “life or freedom would be threatened in that country

because of” their “race, religion, nationality, membership in a

particular social group, or political opinion.” 8 U.S.C.

§ 1231(b)(3)(A).

The second type of withholding of removal flows from the

United States’ obligations as a signatory to the Convention Against

Torture and bars the removal of individuals to countries where they

are likely to be tortured. See Convention Against Torture and Other

Cruel, Inhuman or Degrading Treatment or Punishment, adopted

Dec. 10, 1984, S. Treaty Doc. No. 20, 100th Cong., 2d Sess. 19

(1988), 1465 U.N.T.S. 85. The Foreign Affairs Reform and

Restructuring Act of 1998 implements the Convention Against

Torture by requiring agencies that carry out immigration laws to

promulgate regulations limiting the Executive’s removal powers

accordingly, see 8 U.S.C. § 1231 note, which the Department of

Homeland Security has done, see 8 C.F.R. §§ 208.16–208.18,

1208.16–1208.18. A Convention Against Torture claim protects

only against risk of torture but, unlike a claim for asylum or

withholding of removal under the INA, requires no “existence of a

nexus between the predicted torture and some statutorily protected

ground.” Hincapie v. Gonzales, 494 F.3d 213, 220 (1st Cir. 2007)

(citing Romilus v. Ashcroft, 385 F.3d 1, 8 (1st Cir. 2004)).

Shortly after taking office, President Trump signed

Proclamation No. 10888. The Proclamation directs federal action

to: (1) suspend “entry into the United States” on or after January 20,

2025 of persons “engaged in the invasion across the southern

border,” Proclamation § 1; (2) suspend “entry into the United

States” of persons who—regardless of their point of entry—“fail[],

before entering the United States, to provide Federal officials with

sufficient medical information and reliable criminal history and

background information as to enable” immigration officials to make

statutorily required judgments about admissibility, id. § 3; and

(3) prevent persons subject to the entry suspension from invoking

“provisions of the INA that would permit their continued presence

in the United States, including but not limited to” the asylum statute,

until the President issues “a finding that the invasion at the southern

border has ceased,” id. §§ 2–3. The Proclamation directs the DHS

Secretary, in coordination with the Attorney General and Secretary

of State, to “take appropriate actions as may be necessary to achieve

the objectives of [the Proclamation]” and to “take all appropriate

actions to repel, repatriate, or remove” any person “engaged in the

invasion across the southern border of the United States on or after”

January 20, 2025. Id. §§ 4–5.

To implement the Proclamation’s directives, the Department of

Homeland Security issued informal guidance via three emails, a

memorandum, and training materials sent to immigration

enforcement officials. We refer to these informal guidance

documents collectively as the “Guidance.”

The Guidance for “all Southwest Border Sectors” advises that

individuals “who cross[] between the ports of entry on the southern

land border” are “not permitted to apply for asylum.” J.A. 101

(bolding replaced with italics). The Guidance for the northern and

coastal borders further directs that entry is suspended for all

individuals who “fail to provide” “sufficient medical information

and reliable criminal history and background information to enable

fulfillment of the requirements of” 8 U.S.C. § 1182(a)(1)–(3). J.A.

109 (citing Proclamation § 3). Persons failing to provide medical

and criminal-history documentation are also “restricted from

invoking provisions of the INA, including asylum, that would permit

their continued presence.” J.A. 109, 114 (bolding replaced with

italics).

The Guidance declares that individuals subject to the

Proclamation may now be removed by one of two newly announced

processes—either “Direct Repatriation” or “Expedited Removal.”

J.A. 101, 109. Plaintiffs refer to these as “repatriation” measures, to

distinguish them from those in the INA; confusingly, the Guidance’s

“Expedited Removal” is distinct from expedited removal under 8

U.S.C. § 1225(b)(1). The only difference between the two newly

declared pathways is that individuals subject to the Guidance’s

version of Expedited Removal “are served with a Notice to Alien

Ordered Removed and issued an Expedited Removal Order” form,

while those removed via Direct Repatriation receive no removal

order. RAICES, 793 F. Supp. 3d at 55 (quoting Gov’t Suppl. Br. at

7, RAICES v. Noem, No. 25-306 (D.D.C. July 2, 2025)). This

distinction is material, according to the Government, because

“repatriations do not carry the same immigration or criminal

consequences as expedited removal.” Id. (quoting Gov’t Suppl. Br.

at 8, RAICES v. Noem, No. 25-306 (D.D.C. July 2, 2025)). The

Guidance provides that the “appropriate” removal procedure for

each individual depends on “the totality of the circumstances.” J.A.

101, 107, 109, 114, 126.

The Guidance’s removal pathways purport to supplant several

statutory protections from removal as well as their corresponding

administrative procedures in several ways.

Under existing regulations, immigration officers overseeing

expedited removal pursuant to Section 1225(b)(1) must inform the

individual that “U.S. law provides protection to certain persons who

face persecution, harm or torture upon return to their home country,”

and then prompt the individual to advise the officer of any “fear” or

“concern” that they have about “being removed from the United

States or about being sent home.” See 8 C.F.R. § 235.3(b)(2)(i)

(requiring immigration officers to read this information and

instruction from Form I-867A to foreign individuals); RAICES, 793

F. Supp. 3d at 55; see also 9 Charles Gordon et al., Immigration Law

and Procedure, App’x B, Ex. 16K (2024) (reproducing the text of

Form I-867A). Next, the officer must ask the questions provided on

Form I-877B and record the individual’s answers concerning their

fears about being removed. See 8 C.F.R. § 235.3(b)(2)(i); see also

Gordon, supra Ex. 16L (reproducing the text of Form I-867B). If

the foreign individual “indicates an intention to apply for asylum, or

expresses a fear of persecution or torture, or a fear of return to his or

her country,” the immigration officer must refer that individual for

an interview by an asylum officer and provide them with “a written

disclosure on Form M-444.” 8 C.F.R. § 235.3(b)(4). Form M-444

informs the individual about the credible-fear interview process, the

right to consult with other persons before the interview, and the right

to request review of the asylum officer’s credible fear determination

by an immigration judge. Id.; see also 8 U.S.C. § 1225(b)(1)(A)(i).

Yet both summary repatriation processes under the Guidance

countermand those statutory and regulatory procedures. The

Guidance directs asylum officers to refrain from using Form I-867A,

Form I-867B, or Form M-444, and to not “ask specific fear

questions.” J.A. 101, 107, 109, 114, 124. Instead, the Guidance

directs that only individuals who spontaneously “manifest[] fear” to

an immigration officer will be referred for additional assessment.

J.A. 139–40. Even then, the referral is limited to a “[Convention

Against Torture]-Only Assessment.” Id. By designating the

assessment as “[Convention Against Torture]-Only,” the Guidance

prevents even those individuals who manifest fear of persecution

from being considered for asylum or withholding of removal under

the INA. See J.A. 101, 109, 114 (guidance stating that subject

individuals will not be permitted to apply for asylum); J.A. 134

(guidance explaining that implementing officials will “not assess[]

[the risk of] persecution on account of a protected ground”). A

[Convention Against Torture]-only assessment provides no relief

from likely abuses apart from torture. It would appear to overlook

deprivations of rights to speak, associate, worship, or vote based on

ethnicity or political opinion, for example, or official threats, or even

imprisonment, based on religion or social class, insofar as such

abuses are not torture under the Convention.

The Guidance also instructs officers to use a screening standard

for this “[Convention Against Torture]-Only” assessment that is

more demanding of the applicant than the binding regulation

requires. J.A. 140. Specifically, the Guidance collapses what is

normally a two-stage review into a single initial assessment by a

United States Citizenship Immigration Services (USCIS) officer.

Contrast J.A. 140–42, with 8 C.F.R. § 208.9(a)(1)–(b). At that

“interview,” the individual must—without the benefit of counsel or

time to assemble evidence—carry the burden to show that he or she

is “more likely than not” to be tortured if removed to the proposed

country. J.A. 134–35, 141–43. Finally, contrary to existing

regulations, individuals facing removal under the Proclamation have

no opportunity to seek an immigration judge’s review of the

immigration officer’s determination. Contrast J.A. 134, 142, with 8

C.F.R. § 235.3(b)(4)(i).

In February 2025, Plaintiffs filed a putative class action

challenging both the Proclamation and Guidance. The complaint

names fifteen defendants: President Trump in his official capacity;

the Departments of Homeland Security, State, and Justice; three

components of the Department of Homeland Security (Customs and

Border Patrol, Immigration and Customs Enforcement, and USCIS);

and multiple agency officials in their official capacities.

Plaintiffs’ complaint asserts that the summary removal

provisions of the Proclamation and Guidance exceed the President’s

statutory authority under Sections 1182(f) and 1185(a) and violate

the constitutional separation of powers by unilaterally

countermanding acts of Congress. The complaint also alleges that

the Proclamation and its implementation violate the INA’s

prescribed procedures for removal, asylum, and withholding of

removal under 8 U.S.C. §§ 1225(b)(1)(A)(i), 1229a, 1158,

1231(b)(3), as well as the Convention Against Torture, id. § 1231

note, and its binding regulations, 8 C.F.R. §§ 208.16, 1208.16.

Finally, the complaint claims that the Proclamation’s

implementation is contrary to law, arbitrary and capricious, and

procedurally improper under the Administrative Procedure Act, 5

U.S.C. § 706.

The district court certified a class of “all individuals who are or

will be subject to the Proclamation and/or its implementation and

who are now or will be present in the United States.” RAICES, 793

F. Supp. 3d at 98. The court also vacated the Guidance

implementing the Proclamation as contrary to law, see 5 U.S.C.

§ 706, to the extent it purports to replace statutory removal with

extra-statutory summary expulsion procedures. RAICES, 793 F.

Supp. 3d at 105. It entered a declaratory judgment against all the

defendants (except the President) holding that the Proclamation is

unlawful “insofar as it purports to suspend or restrict access to

asylum, withholding of removal, or the existing regulatory processes

for obtaining [Convention Against Torture] protection.” Id. at 105.

Finally, the court permanently enjoined all defendants (other than

the President) from implementing the Proclamation by adopting

extra-statutory expulsion procedures, removing foreign individuals

without complying with the statutorily mandated withholding

procedures under the Convention Against Torture, and

comprehensively barring applications for asylum. Id. at 110.

The Government appealed and simultaneously asked this court

to stay the district court’s order pending the resolution of its appeal.

We granted in part and denied in part the Government’s motion for

a stay. Refugee & Immigrant Ctr. for Educ. and Legal Servs. v.

Noem, No. 25-5243, 2025 U.S. App. LEXIS 19422 (D.C. Cir. Aug.

1, 2025) [hereinafter Stay Order].

The stay panel first held that the Government was likely to

succeed in part in challenging the class definition. The panel stayed

the district court’s class certification insofar as it applied beyond a

class limited to:

[A]ll individuals who (1) are present in the United

States while Proclamation 10888 and/or its

implementation is in effect, (2) are not statutorily

ineligible for all forms of relief from removal listed

in point (3), and (3) absent the Proclamation and/or

its implementation, would seek asylum, 8 U.S.C.

§ 1158, withholding of removal under the

Immigration and Nationality Act, 8 U.S.C.

§ 1231(b), or withholding under the Convention

Against Torture, see FARRA, Pub. L. No. 105-277,

§ 2242, 112 Stat. 2681-822 (1998) (codified at 8

U.S.C. § 1231 note).

Id. at *3–4.

Second, the panel held that the Government was unlikely to

succeed in establishing that Section 1182(f) or Section 1185(a)(1)

authorizes the President to act “outside of the INA’s prescribed

procedures” to remove individuals already present in the United

States. Id. at *38 (Millett, J., concurring); id. at *54 (Pillard, J.,

concurring in relevant part); id. at *66 (Katsas, J., concurring in

relevant part). Third, the panel ruled that the Government was

unlikely to succeed on its contention that the Proclamation and

Guidance comply with the mandatory withholding of removal

provisions under the INA and the Convention Against Torture. Id.

at *48 (Millett, J., concurring); id. at *54 (Pillard, J., concurring in

relevant part); id. at *68 (Katsas, J., concurring in relevant part).

Fourth, acknowledging it was “a close call,” the stay panel thought

that the Government had said enough at the “very preliminary stay

stage” to make it likely to succeed in defending the Proclamation’s

categorical suspension of the statutory right of individuals to apply

for asylum. Id. at *45, *48 (Millett, J., concurring); id. at *67

(Katsas, J., concurring in relevant part); but see id. at *56–62

(Pillard, J. dissenting in relevant part). Finally, the panel deemed

the Government unlikely to succeed in showing that 8 U.S.C.

§ 1252(f)(1) barred the district court from issuing class-wide

injunctive relief. Id. at *48–51 (Millett, J., concurring); id. at *54

(Pillard, J., concurring in relevant part); but see id. at *70–73

(Katsas, J., dissenting in relevant part).

II.

The district court exercised jurisdiction under 28 U.S.C § 1331,

and this court has appellate jurisdiction under 28 U.S.C. § 1291.

“We review class certification decisions for an abuse of discretion.”

In re White, 64 F.4th 302, 312 (D.C. Cir. 2023) (citations omitted),

cert. denied sub nom. Hilton Hotels Ret. Plan v. White, 144 S. Ct.

487. We review de novo the district court’s decision to grant

summary judgment. Thompson v. District of Columbia, 967 F.3d

804, 812 (D.C. Cir. 2020) (citation omitted).

III.

We affirm the district court’s order granting summary judgment

to Plaintiffs and its order granting class certification as clarified by

the stay panel. The INA does not allow the President to remove

Plaintiffs under summary removal procedures of his own making.

Nor does it allow the Executive to suspend Plaintiffs’ right to apply

for asylum, deny Plaintiffs’ access to withholding of removal under

the INA, or curtail mandatory procedures for adjudicating Plaintiffs’

Convention Against Torture claims. Finally, the district court’s

class-wide relief does not violate Article III or the INA’s limit on

injunctive relief under 8 U.S.C. § 1252(f)(1).

The Proclamation and Guidance invoke Sections 1182(f) and

1185(a)(1) of Title 8 to supplant other provisions in the INA that

govern the removal of foreign individuals already present in the

United States. Neither statutory provision empowers the Executive

to displace the INA’s exclusive and mandatory removal procedures.

For decades, federal immigration law has treated barring

foreign individuals’ entry into the United States differently from

their removal once they are here. “The 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 (citations omitted); see Leng May Ma v. Barber, 357

U.S. 185, 187 (1958) (“[O]ur immigration laws have long made a

distinction between those aliens who have come to our shores

seeking admission . . . and those who are within the United States

after an entry, irrespective of its legality.”). Entry and admission

address whether foreign individuals outside the United States may

come in, whereas removal addresses whether and how foreign

individuals on the domestic side of the border may be expelled.

Federal immigration law treats those as separate processes with

different statutory constraints.

That distinction is etched into the INA’s comprehensive and

carefully calibrated statutory scheme. The statute codifies its

differing treatment of entry and removal in separate statutory parts.

As detailed above, the removal process is governed by Section

1229a, which provides the “sole and exclusive procedure” for

removal of foreign individuals “[u]nless otherwise specified in [the

INA].” 8 U.S.C. § 1229a(a)(3); see RAICES, 793 F. Supp. 3d at 79

n.2. Recognizing that there may be reason to remove certain

individuals more quickly than the regular process contemplates,

Congress otherwise specified an expedited removal process in

Section 1225(b)(1) of the INA. See Guzman, 998 F.3d at 567 (“The

expedited procedure of § 1225(b)(1) is, of course, such an otherwise

specified procedure.”). Section 1225(b)(1)’s expedited removal

process applies to only specified classes of inadmissible foreign

individuals. See 8 U.S.C. § 1225(b)(1) (citing 8 U.S.C.

§ 1182(a)(6)(C), (a)(7)).

The regular and expedited removal provisions spell out who

may be removed, on what grounds, and with what procedural

safeguards. But regardless of whether individuals are subject to

removal under regular or expedited removal procedures, they are

statutorily entitled to apply for asylum under 8 U.S.C. § 1158,

withholding of removal under 8 U.S.C. § 1231(b)(3)(A), and

withholding of removal under the Convention Against Torture, 8

U.S.C. § 1231 note.

The Proclamation invokes the President’s authority under

Section 1182(f), but that section authorizes a President to suspend

only the “entry” of foreign individuals into the United States. It

provides:

Whenever the President finds that the entry of any

aliens or of any class of aliens into the United States

would be detrimental to the interests of the United

States, he may by proclamation, and for such period

as he shall deem necessary, suspend the entry of all

aliens or any class of aliens as immigrants or

nonimmigrants, or impose on the entry of aliens any

restrictions he may deem to be appropriate.

8 U.S.C. § 1182(f) (emphasis added). The Government asserts that

the President’s authority to “by proclamation . . . suspend the entry”

of foreign individuals also empowers the President to summarily

remove foreign individuals who have entered the United States in

violation of the Proclamation’s entry bar. Id. The statutory text

forecloses the Government’s ends-justifies-means approach.

By its plain text, Section 1182(f) authorizes the President to

suspend only the “entry” of foreign individuals into the United

States. The word “entry,” as used in the immigration context since

Congress enacted Section 1182(f), means “any coming of an alien

into the United States, from a foreign port or place or from an

outlying possession, whether voluntarily or otherwise.”

Immigration and Nationality Act, Pub. L. No. 82-414, § 101(a)(13),

66 Stat. 163, 167 (1952); see also Barber, 347 U.S. at 641–42

(explaining that definition codified a technical and historical

understanding of the term “entry” as requiring “an arrival from some

foreign port or place”). Congress has more recently adopted the

related term “admission,” which is “the lawful entry of the alien into

the United States after inspection and authorization by an

immigration officer.” 8 U.S.C. § 1101(a)(13)(A).

The word “removal” is noticeably absent from Section 1182(f).

That omission by a Congress recognizant of the longstanding

distinction between “entry” and “removal” is telling. Contrast 8

U.S.C. §§ 1229a (“Removal proceedings”), 1225 (“expedited

removal of inadmissible arriving aliens”), and 1227 (identifying

various classes of “deportable aliens” who “shall, upon the order of

the Attorney General, be removed”), with §§ 1181, 1184 (admission

or “lawful entry” into the United States), and 1182 (listing who is

ineligible for lawful entry). More pointedly, Congress knows how

to authorize alternative or expedited removal procedures. And when

it does, it explicitly uses the word “removal.” See, e.g., id. §§ 1229a

(“Removal proceedings”), 1225(b)(1) (“expedited removal of

inadmissible arriving aliens”).

The structure of the INA confirms that Section 1182(f)

addresses entry and not removal. Section 1182 and its neighboring

provisions, Sections 1181 and 1184, specify who may be “admitted”

or may “lawful[ly] enter” the United States. Id. § 1101(a)(13)(A).

Those provisions appear in Part II of the INA titled “Admission

qualifications for aliens; travel control for citizens and aliens.” Pub.

L. No. 82-414, 66 Stat. 163 (emphasis added). Removal provisions

are separately grouped in Part IV of the INA, titled “Inspection,

apprehension, examination, exclusion, and removal.” Id. It would

contravene traditional interpretive principles to conclude that

Congress acted tacitly—in a provision and statutory part addressing

“entry” and “admissibility” with no mention of “removal”—to grant

the President the authority to override the INA’s removal provisions.

See FCC v. Consumers’ Rsch., 606 U.S. 656, 706 (2025)

(Kavanaugh, J., concurring) (noting “the commonsense interpretive

maxim that Congress does not usually ‘hide elephants in

mouseholes’ when granting authority to the President” (quoting

Whitman v. Am. Trucking Ass’ns, 531 U.S. 457, 468 (2001))); cf. Fl.

Dep’t of Revenue v. Piccadilly Cafeterias, Inc., 554 U.S. 33, 47

(2008) (“The placement of § 1146(a) within a subchapter expressly

limited to postconfirmation matters undermines [the argument] that

§ 1146(a) covers preconfirmation transfers.”).

Past practice drives the point home. The Executive Branch has

for decades acknowledged the limits of the authority

Section 1182(f) confers to suspend “the entry” of foreign

individuals: No prior President has used it to enhance the

Executive’s removal power. “The want of assertion of power by

those who presumably would be alert to exercise it,” as the Supreme

Court has recently observed, “is . . . significant in determining

whether such power was actually conferred.” West Virginia v. EPA,

597 U.S. 697, 725 (2022) (quoting FTC v. Bunte Brothers, Inc., 312

U.S. 349, 352 (1941)). Indeed, Presidents of both political parties

have invoked Section 1182(f) at least 90 times over the last four

decades. See Securing the Border, 89 Fed. Reg. 81,156, 81,163 n.53

(Oct. 7, 2024). Every one of those uses was confined to preventing

foreign individuals from entering the territorial land or waters of the

United States. Id.; see, e.g., Sale v. Haitian Ctrs. Council, Inc., 509

U.S. 155, 187 (1993) (using “a naval blockade” to deny foreign

individuals “the ability to disembark on our shores”); Trump v.

Hawaii, 585 U.S. at 675 (“restrict[ing] entry” of “nationals of

countries that do not share adequate information for an informed

entry determination, or that otherwise present national security

risks”); Trump v. Int’l Refugee Assistance Project, 582 U.S. 571,

573 (2017) (“suspend[ing] entry of foreign nationals from . . . Iran,

Iraq, Libya, Somalia, Sudan, Syria, and Yemen”); Goodluck v.

Biden, 104 F.4th 920, 922 (D.C. Cir. 2024) (suspending diversity-

visa program); Doe #1 v. Trump, 957 F.3d 1050, 1056 (9th Cir.

2020) (restricting family-sponsored immigrant visas); E. Bay

Sanctuary Covenant v. Trump, 932 F.3d 742, 754 (9th Cir. 2018)

(“suspending the ‘entry of any alien into the United States across the

international boundary between the United States and Mexico’”);

Sesay v. INS, 74 F. App’x 84, 86 (2d Cir. 2003) (suspending “entry”

of “members of the military junta in Sierra Leone” and their

families); see also Proclamation No. 5377, Suspension of Entry as

Nonimmigrants by Officers or Employees of the Government of

Cuba or the Community Party of Cuba, 50 Fed. Reg. 41,329 (1985)

(“impos[ing] certain restrictions on entry into the United States of

officers or employees of the Government of Cuba or the Communist

Party of Cuba”).

Brushing past the statute’s text, structure, and uniform

Executive Branch and judicial recognition that Section 1182(f) does

not extend to removals, the Government now asserts that the power

it confers to suspend entry is “toothless” absent a coordinate power

to override, by proclamation, the INA’s removal provisions. Gov’t

Br. 29. In its telling, “[Section] 1182(f)’s power to exclude must

include the power to expel if the former is to have any meaningful

force.” Id. at 38. But its premise is mistaken. The Executive indeed

has the power to remove foreign individuals who enter the country

illegally, see 8 U.S.C. § 1229a, including an “expedited removal”

power that Congress adopted “to substantially shorten and speed up

the removal process,” Make the Rd. N.Y., 962 F.3d at 618

(describing 8 U.S.C. § 1225(b)(1)). “Where Congress has enacted

a comprehensive scheme and has deliberately targeted specific

problems with specific solutions,”—as it has done here—“courts

should not read one part of the legislative regime (the INA) to

provide a different, and conflicting, solution to a problem that has

already been specifically addressed elsewhere in the federal

immigration regime.” Negusie v. Holder, 555 U.S. 511, 545 (2009)

(Thomas, J., dissenting) (quotation marks omitted). There is

nothing “toothless” about Section 1182(f)’s power to proclaim

exclusions—backed by the INA’s existing statutory removal

authorities—that justifies devising a new, unwritten form of even

more expedited removal power distinct from that which Congress

codified.

Against this backdrop, we are unpersuaded that our decision to

sustain the preliminary injunction in Huisha-Huisha v. Mayorkas,

27 F.4th 718 (D.C. Cir. 2022), warrants a different interpretation of

Section 1182(f). There, we ruled that the authority of the Centers

for Disease Control and Prevention (CDC), under a public health

law, to prohibit the “introduction of persons and property” into the

United States when they pose a “serious danger of the introduction

of [a communicable] disease into the United States,” Huisha-

Huisha, 27 F.4th at 729 (citing 42 U.S.C. § 265), came with a

companion “authority to expel” such persons as needed to stem the

same contagion, id. The Government’s reliance on Huisha-Huisha

here is misplaced.

For one, Huisha-Huisha involved not only a statute in a

different title of the U.S. Code, but a provision therein that is both

unaffiliated with the INA and has a substantially different aim.

Congress enacted the Public Health Services Act to address public

health, not immigration. See Pub. L. No. 78-410, 58 Stat. 682

(codified as amended at 42 U.S.C. § 201 et seq.). The CDC’s

Section 265 authority to control individuals or products that pose a

communicable health threat to the United States is not an instrument

of general immigration policy. It confers separate and distinct

authority to limit movement to prevent the spread of disease. See

42 U.S.C. § 265; see also id. at § 264 (authorizing controls on spread

within the United States). The President’s Section 1182(f)

authority, by comparison, is part of a comprehensive immigration

statute that distinguishes and delineates the power to suspend entry

into the United States from the power to remove (subject to certain

mandatory conditions) individuals who are already inside the

country. We held in Huisha-Huisha that the CDC’s Section 265

power to control entry to prevent the “introduction” and spread of

disease allows expulsions not subject to the INA’s removal

procedures. The logic of Huisha-Huisha does not mean a

Proclamation relying on the INA itself may order removals not

subject to the INA’s removal procedures.

A second reason Huisha-Huisha does not support the

Government is that Section 265 and Section 1182(f) use materially

different language. Section 265 does not use the terms “entry” or

“removal” at all. Rather, it empowers the Surgeon General, through

the CDC, to prevent the “introduction” of people or things anywhere

in the United States that, in their judgment, would pose a serious risk

of contagion. As Huisha-Huisha explains, “introduction into the

United States of persons” is defined as “the movement of a person

from a foreign country. . . into the United States so as to bring the

person into contact with others in the United States . . . in a manner

that the director determines to present a risk of transmission of a

communicable disease.” 27 F.4th at 725 (quoting Suspension of

Introduction of Persons Into the United States from Designation

Foreign Countries or Places for Public Health Purposes, 85 Fed.

Reg. 16,559, 16,563 (Mar. 24, 2020)). That authority over

“introduction,” we determined, granted the CDC broad power to

prevent diseases like COVID-19 from affecting and infecting the

people in the United States. The need to prevent the “introduction”

of a disease, in other words, follows contagious persons across the

border as they move through the country introducing illness again

and again to different populations and regions. Because viruses do

not obey borders, the power to prevent the introduction of disease

would be “nugatory” if it allowed the CDC only to police the borders

and not curb the continued presence of people who “managed to set

foot on U.S. soil.” Huisha-Huisha, 27 F.4th at 729.

Section 1182(f), in contrast, empowers a President only to proclaim

a suspension of “entry,” making inapposite Huisha-Huisha’s

reliance on the CDC’s authority to prevent the “introduction” of

potentially contagious persons.

The Government’s reliance on the “entry fiction” theory, Gov’t

Br. 41–43, also fails to graft new removal powers onto

Section 1182(f)’s authority to “suspend the entry” of foreign

individuals. The “fiction” of this theory refers to the idea that

inadmissible or not-yet-admitted individuals who have physically

entered the country will be treated under the Due Process Clause as

if they were “stopped at the border.” See DHS v. Thuraissigiam,

591 U.S. 103, 139 (2020) (citation omitted). But, as the Supreme

Court has recognized, that limitation does not allow the Executive

to remove individuals in violation of procedures Congress has

guaranteed to them by statute. Compare Thuraissigiam, 591 U.S. at

140 (recognizing that an individual physically within the United

States has a statutory right to apply for asylum), with Sale, 509 U.S.

at 160 (interpreting Section 1182(f) to grant the President the

authority to form a naval blockade outside U.S. territorial waters to

“prevent[] Haitian[] [immigrants] from reaching our shores and

invoking [the INA’s] protections”).

In short, the plain language and structure of the INA, the

longstanding and consistent practice of the Executive Branch, and

binding Supreme Court and circuit precedent uniformly reject the

notion that Congress, in authorizing the “suspen[sion]” of “entry,”

8 U.S.C. § 1182(f), tacitly empowered the Executive to override the

INA’s carefully crafted “sole and exclusive” removal procedures,

id. § 1229a(a)(3). The power by proclamation to temporarily

suspend the entry of specified foreign individuals into the United

States does not contain implicit authority to override the INA’s

mandatory process to summarily remove foreign individuals.

Nor does Section 1185(a)(1) “independently,” Gov’t Br. 34,

provide the Executive with removal authority. That section, titled

“Travel control of citizens and aliens,” reads:

Unless otherwise ordered by the President, it shall be

unlawful for any alien to depart from or enter or

attempt to depart from or enter the United States

except under such reasonable rules, regulations, and

orders, and subject to such limitations and exceptions

as the President may prescribe.

8 U.S.C. § 1185(a)(1). All agree that this language prohibits a

foreign individual from “depart[ing] from or enter[ing]” or

attempting to “depart from or enter” the United States except as

allowed by rules, regulations, or orders prescribed by the President.

Yet, like Section 1182(f), it makes no mention of any power to

remove foreign individuals already present in the United States.

In the absence of the word “removal,” the Government leans

heavily on the statute’s references to “depart[ures].” Its argument is

as follows: Section 1185 “authorizes the President to prescribe

‘limitations and exceptions’ to the ‘rules and regulations’ governing

how” foreign individuals “must depart,” and so the President has the

power to “repatriate[e] or remov[e]” foreign individuals “without

recourse to [regular] or expedited removal proceedings.” Gov’t Br.

at 33–34.

But “departure” is not a synonym for “removal.” Section

1185(a)(1), by its plain terms, authorizes regulation of noncitizens’

own departures or attempts to depart. The challenged Proclamation

and Guidance, by contrast, apply to federal officers’ forcible

removals of foreign individuals who do not wish to leave.

Congress has used the terms “remove” and “depart” in distinct

ways in the INA, and this distinction is consistent throughout the

INA’s implementing regulations. See 8 U.S.C. §§ 1229c (granting

the Attorney General the authority to allow a foreign individual

“voluntarily to depart the United States” at the individual’s “own

expense . . . in lieu of being subject to [section 1229a removal]

proceedings”), 1326 (creating criminal penalties for certain foreign

individuals who “ha[ve] departed the United States while an order

of . . . removal is outstanding”); 8 C.F.R. § 215.1(h) (“The term

depart from the United States means depart by land, water, or air:

(1) From the United States for any foreign place, or (2) from one

geographical part of the United States for a separate geographical

part of the United States.”); see also Dada v. Mukasey, 554 U.S. 1,

8 (2008) (“Voluntary departure is a discretionary form of relief that

allows certain favored aliens . . . to leave the country willingly

[rather than] undergo removal.”). Given the clear and purposeful

distinctions between the use of these two terms in the INA and its

implementing regulations, references to departure in Section

1185(a)(1) cannot be read to grant the President authority to

proclaim emergency-removal authority in conflict with the INA’s

express removal provisions. Nor do we understand the Supreme

Court to have held anything to the contrary in Trump v. Hawaii when

it observed that Section 1185(a)(1) “substantially overlaps” with

Section 1182(f) and declined to resolve “the precise relationship

between the two statutes.” 585 U.S. at 683 n.1.

****

Section 1182(f) and Section 1185(a) afford the President

discretionary powers over who may cross our borders and enter the

United States. But those provisions do not confer presidential

discretion over removal procedures. When federal officers act under

the INA to remove foreign individuals who are here illegally, see 8

U.S.C. §§ 1229a, 1225, neither Section 1182(f) nor 1185(a) grants

the President authority to countermand conditions Congress

attached to the INA’s expressly comprehensive removal provisions.

The Proclamation and Guidance purport to strip away the INA’s

protections against removal to places where the foreign individual

faces risk of persecution or other harm, including torture or death.

Plaintiffs claim the Proclamation and Guidance are unlawful insofar

as they deny the right to seek relief as provided by statute: asylum

under 8 U.S.C. § 1158, withholding of removal under 8 U.S.C.

§ 1231(b)(3)(A), and withholding of removal under the Convention

Against Torture, see 8 U.S.C. § 1231 note. We address and reject

the Government’s rationales for denying each form of statutory

relief in turn.

The Proclamation and Guidance announce an unprecedented

decision to preemptively and categorically deny asylum to many

thousands of foreign individuals. They purport to have thereby

dispensed with the statutory right even to apply for asylum. That

wholesale denial applies to any person crossing the southern border

into the United States not at a designated port of entry, as well as

any person crossing at a designated port of entry without a visa and

other required documentation. Denying asylum in one stroke,

without any information about the affected individuals, necessarily

ignores every risk of persecution they face when forced back to

where they came from. The challenged decision thus necessarily

denies asylum even to foreign individuals who are sure to face

persecution without it.

The Government asserts that the asylum statute itself authorizes

the Executive to “restrict[]” every individual subject to the

Proclamation from “invoking” the right to apply for asylum. Gov’t

Br. 43–44; see also Proclamation, §§ 2–3. It does not. To the

contrary, barring foreign individuals who are physically present in

the United States from applying for asylum and, if they make the

statutory showing that they are eligible, from being considered to

receive it cannot be squared with the statute.

Section 1158(a) grants foreign individuals physically present in

the United States a right to apply for asylum:

Any alien who is physically present in the United

States or who arrives in the United States (whether

or not at a designated port of arrival and including an

alien who is brought to the United States after having

been interdicted in international or United States

waters), irrespective of such alien’s status, may apply

for asylum in accordance with this section or, where

applicable, [8 U.S.C. § 1225(b)].

8 U.S.C. § 1158(a)(1). According to the plain text of Section

1158(a)(1), then, foreign individuals who are “physically present”

in the United States have a statutory right to apply for asylum. See

Al Otro Lado v. Wolf, 952 F.3d 999, 1013 (9th Cir. 2020) (observing

that “the statutory right to apply attaches once the asylum seeker is

on the doorstep”). To be sure, the right to apply is afforded

“irrespective of such alien’s status” and “whether or not [they

arrived] at a designated port of arrival.” 8 U.S.C. § 1158(a)(1).

Following that provision are three enumerated restrictions on

the right to apply for asylum: those who can be removed safely to a

third country, those who fail to apply within one year of arriving to

the United States, and those who have previously been denied

asylum. See id. § 1158(a)(2)(A)–(C). Consistent with Section

1158(a)(1), none of those restrictions turns on where the individual

enters the United States. Nor do they turn on the sufficiency of

documentation.

The asylum statute thus makes plain that the right to apply for

asylum is broadly available to all foreign individuals present or

arriving in the United States unless expressly restricted from

applying. But the Proclamation and Guidance purport to deny the

right to all individuals who crossed the southern border between

ports of entry, in direct conflict with Section 1158(a)(1)’s instruction

that any foreign individual who “arrives in the United States” may

apply for asylum “whether or not [they arrived] at a designated port

of arrival.” 8 U.S.C. § 1158(a)(1). The plain text of Section 1158(a)

defeats the Government’s assertion that it may restrict everyone

subject to the Proclamation from “invoking” the right to asylum.

The Government retorts that the Proclamation and Guidance

work to preemptively and categorically deny asylum to all

individuals subject to the Proclamation, and that “because the

ultimate disposition of any asylum application is foreordained” it

may “disallow [foreign individuals] from even filing such futile

applications.” Gov’t Br. 44.

For support, the Government relies on 8 U.S.C.

§ 1158(b)(1)(A), which provides that the DHS Secretary or the

Attorney General “may grant asylum” to an individual who has

applied in accordance with the application procedures and meets the

statutory definition of a “refugee.” Congress framed the authority

to grant asylum in discretionary terms: “may grant.” 8 U.S.C.

§ 1158(b)(1)(A) (emphasis added). The Supreme Court has

accordingly held that even if an applicant is eligible for asylum—

i.e. meets the statutory definition of refugee and is not legally

ineligible, see 8 U.S.C. § 1158(b)(2)(A)–(C); 8 C.F.R.

§ 208.13(c)—the DHS Secretary or the Attorney General may

exercise their discretion to deny it. Thuraissigiam, 591 U.S. at 110

n.4. 2 We do not question that asylum decisions are ultimately

discretionary. But the INA does not support categorical, ex ante

denial of asylum with no consideration of what the would-be

applicant may face if removed.

The Government’s and our dissenting colleague’s interpretation

of the Executive’s discretionary authority over asylum, if accepted,

would apply far beyond the context of this case. It would treat

Congress as having empowered the Executive Branch to cut off

asylum wholesale for any reason without any assessment of the

nature of the risks the affected individuals would face if sent back.

The Government, at bottom, urges us to adopt an interpretation of

the asylum statute that would allow the Executive Branch to

unilaterally and heedlessly return individuals even to countries

where they will most certainly face persecution—forced labor,

indefinite imprisonment, or even summary execution—on account

of a protected ground. We decline to do so.

To start, the INA makes clear that the Executive’s discretionary

authority to deny asylum must be exercised on an “individualized”

basis. See INS v. Cardoza-Fonseca, 480 U.S. 421, 444 (1987)

(“Congress has assigned to the Attorney General and his delegates

the task of making the[] hard individualized decision[] . . . of

determin[ing] which, if any, eligible refugees should be denied

asylum.”). Congress’s expectation of individualized consideration

is evident throughout the INA’s prescribed asylum application

process. For instance, the asylum statute sets forth “procedures” for

the “[c]onsideration of asylum applications,” 8 U.S.C.

§ 1158(d)(5)(A), that require “the identity of the applicant” to be

“checked against all appropriate records or databases,” id.

§ 1158(d)(5)(A)(i), and require “[an] initial interview or hearing on

We assume without deciding that the President may himself

exercise the discretionary authority over asylum that the INA vests

in the DHS Secretary and the Attorney General.

the asylum application” to “commence not later than 45 days after

the date an application is filed,” id. § 1158(d)(5)(A)(ii).

The procedures for reviewing asylum applications from

individuals subject to expedited removal are likewise

individualized. When an individual “indicates either an intention to

apply for asylum under [section 1158] . . . or [indicates] fear of

persecution,” Congress directs that “the officer shall refer” that

person “for an interview by an asylum officer,” id.

§ 1225(b)(1)(A)(i)–(ii) (emphasis added), and the “asylum officer

shall,” in turn, “conduct interviews of aliens referred” to them, id.

§ 1225(b)(1)(B)(i) (emphasis added). If the officer determines “at

the time of the interview” that the individual “has a credible fear of

persecution” then the individual “shall be detained for further

consideration of the application for asylum.” Id.

§ 1225(b)(1)(B)(ii) (emphasis added). We know this multi-step

credible-fear screening process is mandatory because Congress

reliably uses the word shall to “connote[] a requirement.” Jennings

v. Rodriguez, 583 U.S. 281, 300 (2018) (quoting Kingdomware

Techs., Inc. v. United States, 579 U.S. 162, 171 (2016)).

Consistent with the statutory scheme, the promulgated

regulation delineating asylum procedures explicitly directs that the

Executive “shall adjudicate the claim of each asylum applicant

whose application is complete.” 8 C.F.R. § 208.9(a) (emphasis

added); see also id. § 1003.10(b) (“[A]n immigration judge shall

complete administrative adjudication of an asylum application

within 180 days after the date an application is filed.” (emphasis

added)). The Executive’s announcement by Proclamation of

upfront, categorical asylum denials without “[c]onsideration of

asylum applications,” 8 U.S.C. § 1158(d)(5)(A), and without

“adjudicat[ing] the claim of each asylum applicant,” 8 C.F.R.

§ 208.9(a), directly contravenes these statutory and regulatory

requirements.

The individualized approach long adhered to by the Executive

Branch in exercising this discretionary authority powerfully

reinforces Plaintiffs’ reading of the statute to require asylum

decisions based on individual circumstances.

The Attorney General and DHS Secretary have largely

delegated their discretionary denial authority to Immigration Judges

and the Board of Immigration Appeals (BIA). See 8 C.F.R.

§§ 1003.10(b)–(c); see also 8 U.S.C. § 1101(b)(4). The BIA hears

appeals from immigration judges’ asylum decisions. 8 C.F.R.

§§ 1003.1, 1003.10(c). Immigration Judges and the BIA may

exercise discretion to deny asylum to eligible applicants, but they

must do so case by case, based “on the totality of the [individual’s]

circumstances.” Matter of Pula, 19 I. & N. Dec. 467, 473–74 (B.I.A.

1987); see Securing the Border, 89 Fed. Reg. at 81,170–71 (noting

that Matter of Pula “remains the applicable standard for

discretionary determinations”). Denials of asylum by the Attorney

General (as opposed to an Immigration Judge or the BIA) are also

decided on a case-by-case basis considering the individual

applicant’s circumstances. See, e.g., Matter of A-H-, 23 I. & N. Dec.

774, 783 (2005) (making discretionary decision “based on a

thorough review of the record and considering the balance of

[various individualized] factors”). The Government’s proposed

approach of issuing upfront and categorical pre-application, pre-

interview denial decisions without considering the individual’s

circumstances cannot be squared with nearly four decades of

individual and case-by-case discretionary asylum denial decisions.

In any event, even if the INA authorized the Executive to

exercise its discretion to deny asylum in such a preemptive and

categorical manner, the fact that any applications from individuals

subject to such a decision would be futile is not a sufficient reason

to deny them the right to apply for asylum. After all, the same could

be said about individuals who are ineligible for asylum by statute or

regulation, and no one disputes that they have a right to apply.

Begin with Section 1158’s text and structure. As detailed

above, part (a) of Section 1158, titled “Authority to apply for

asylum,” establishes the asylum-application right and enumerates

the three restrictions on applying; but it is the next part, part (b),

titled “Conditions for granting asylum,” that establishes asylum-

eligibility grounds and enumerates the “exceptions” under which an

otherwise eligible applicant will be denied asylum. 8 U.S.C.

§ 1158(b)(1)–(2). Congress also authorized the Attorney General to

promulgate by regulation additional grounds “under which an

[applicant] shall be ineligible for asylum.” Id. § 1158(b)(2)(C); see

8 C.F.R. § 208.13(c) (collecting rule-based grounds for “Mandatory

denials” of asylum applications).

Part (b) works this way: An applicant that has exercised the

right to apply under part (a) must first establish their status as a

“refugee.” 8 U.S.C. § 1158(b)(1). But even if an applicant qualifies

as a “refugee” within the meaning of the statute, the Attorney

General must still deny asylum if the applicant is found ineligible.

The INA enumerates a series of grounds rendering applicants

ineligible for asylum. Id. § 1158(b)(2). For example, if the

applicant has been convicted of a “particularly serious crime,” or

there are “reasonable grounds for regarding the [applicant] as a

danger to the security of the United States,” the application must be

denied. Id. § 1158(b)(2)(ii), (iv).

Importantly, in the scheme Congress devised, eligibility

exceptions in part (b) are distinct from the application restrictions

in part (a). And eligibility exceptions become relevant only after an

individual has exercised the right to apply. See id. § 1158(b)(2). As

a result, even though the INA prohibits ineligible individuals from

receiving asylum, it leaves intact their right to apply for asylum in

the first place.

Past Executive Branch practice has uniformly recognized and

preserved the right to apply for asylum, including for individuals

whose applications will ultimately be denied. Even as Attorneys

General across administrations have exercised the prerogative to

promulgate by regulation additional limitations and conditions on

eligibility, none has restricted the right to apply—until now. See,

e.g., Aliens Subject to a Bar on Entry Under Certain Presidential

Proclamations; Procedures for Protection Claims, 83 Fed. Reg.

55,934, 55,952 (Nov. 9, 2018) (to be codified at 8 C.F.R. pts. 208,

1003, 1208) (First Trump Administration); Securing the Border, 89

Fed. Reg. 48,710-01, 48,754–59 (June 7, 2024) (to be codified at 8

C.F.R. pts. 208, 235, 1208) (Biden Administration). To the

contrary, “for four decades,” the “Executive Branch’s consistent

position” has been that the INA guarantees foreign individuals—

even those who are apparently ineligible—the right to apply for

asylum. Securing the Border, 89 Fed. Reg. 81,156, 81,163 & n.53

(Oct. 7, 2024). Indeed, the First Trump Administration described a

proposed rule to render certain individuals ineligible for asylum as

“consistent with . . . 8 U.S.C. § 1158(a)(1),” because it

“establishe[d] a condition on asylum eligibility, not on the ability to

apply for asylum.” Aliens Subject to a Bar on Entry Under Certain

Presidential Proclamations; Procedures for Protection Claims, 83

Fed. Reg. 55,934, 55,940–41 (Nov. 9, 2018) (to be codified at 8

C.F.R. pts. 208, 1003, 1208) (emphases added).

Finally, even if the Executive could categorically deny the right

to apply for asylum based on a broad ex ante determination that all

the potential applicants will be denied asylum, per the INA it can

only promulgate that blanket determination by notice-and-comment

rulemaking. Congress expressly contemplated the potential need for

new asylum disqualification and provided tools for just that purpose.

First, as described above, the asylum statute authorizes the Attorney

General to “by regulation establish additional limitations and

conditions, consistent with this section, under which an alien shall

be ineligible for asylum.” 8 U.S.C. § 1158(b)(2)(C) (emphases

added). The asylum statute also authorizes the Attorney General to

“provide by regulation any other conditions or limitations on the

consideration of an application for asylum not inconsistent with this

chapter.” Id. § 1158(d)(5)(B) (emphases added).

Thus, even assuming that the Executive’s decision to foreclose

asylum to individuals subject to the Proclamation could be

understood as an “additional limitation[] and condition[] . . . under

which an alien shall be ineligible for asylum,” id. § 1158(b)(2)(C),

and that such an eligibility limitation could foreclose the right to

apply, that decision would have to be established “by regulation,”

id. Similarly, even assuming that the Executive’s decision here

could be understood as another “condition[] or limitation[] on the

consideration of an application for asylum,” it would have to be

established “by regulation.” Id. § 1158(d)(5)(B).

Here, it is undisputed that the challenged Guidance was not

established “by regulation”—i.e., through notice-and-comment

rulemaking. We cannot license the Executive to do by Proclamation

and informal guidance what Congress has determined must be done,

if it can be done at all, by rule. 3 See 5 U.S.C. § 553(b)–(e)

(describing the process of notice and comment rulemaking).

History illustrates this point. No previous Attorney General or

DHS Secretary has asserted that the INA authorizes it to

preemptively deny asylum to an entire class of individuals by

Proclamation. See West Virginia, 597 U.S. at 725. Instead, every

administration that has sought to categorically bar asylum to certain

individuals—including the first Trump administration—has done so

Any regulation under either Section 1158(b)(2)(C) or Section

1158(d)(5)(B) would also have to be “consistent” with the asylum

statute, see 8 U.S.C. § 1158(b)(2)(C) (requiring regulations to be

consistent “with this section”), or the INA more broadly, see id.

§ 1158(d)(5)(B) (mandating regulations “not [be] inconsistent with

this chapter”). See, e.g., E. Bay Sanctuary Covenant, 993 F.3d at

669–71 (invalidating a Section 1158(b)(2)(C) regulation that made

foreign individuals ineligible for asylum based on their place of

entry as inconsistent with Section 1158(a)(1)). As already

discussed, the Proclamation and Guidance squarely conflict with

several statutory provisions.

using its regulatory powers in 8 U.S.C. § 1158(d)(5)(B) to establish

eligibility restrictions. See, e.g., Aliens Subject to a Bar on Entry

Under Certain Presidential Proclamations; Procedures for

Protection Claims, 83 Fed. Reg. at 55,952 (interim final rule

designating those who enter the United States in violation of “a

presidential proclamation or other presidential order suspending or

limiting the entry of aliens along the southern border with Mexico”

categorically ineligible for asylum); Securing the Border, 89 Fed.

Reg. 48,710-01, 48,718 (interim final rule providing that, with

limited exceptions, “persons who enter across the southern border

will be ineligible for asylum unless they demonstrate . . .

exceptionally compelling circumstances”).

We are unpersuaded by the Government’s and our dissenting

colleague’s insistence that our decision in Huisha-Huisha counsels

otherwise. As already described, the emergency orders in that case

were issued pursuant to the CDC’s authority under the Public Health

Services Act, 42 U.S.C. § 265, to “suspen[d] . . . the right to

introduce” persons into the United States in response to a “serious

danger” of spreading a communicable disease from a foreign

country into the United States. We interpreted Section 265 to

authorize the Executive to prevent foreign persons from coming

“into contact with persons in the United States” or moving into the

interior of the country after crossing the border, including by

summarily expelling them from the country. Huisha-Huisha, 27

F.4th at 725, 729. We further held, at least “at [that] stage of the

litigation,” that the Executive could invoke Section 265 to

summarily remove those individuals without providing them an

opportunity to seek asylum, despite the INA’s otherwise binding

requirements. Id. at 730–31.

Our conclusion hinged on the explicit recognition that the

public-health emergency authority in Section 265 conflicted with

immigration law’s requirement, see 8 U.S.C. § 1158(a), that

“[foreign individuals]—even those who enter the country

illegally—[be allowed] to apply for asylum before they are

expelled.” Huisha-Huisha, 27 F.4th at 730. But layering the asylum

statute’s guarantee of the right to apply for asylum over the

Executive’s power under Section 265 to “prohibit . . . the

introduction of persons” posing a threat of spreading communicable

diseases into the United States would critically weaken that

emergency power. Id. at 731. To “harmoniz[e]” the two statutes,

we reasoned that Section 265’s express authorization of the Surgeon

General to effect “a suspension of the right to introduce such persons

. . .[as] is required in the interest of the public health,” 42 U.S.C.

§ 265, supported the orders’ suspension of the INA’s otherwise-

required asylum procedures when the “dangers” to public health

“are sufficiently pronounced.” Huisha-Huisha, 27 F.4th at 731.

This interpretation we noted, could “explain why Congress has

excluded from asylum some categories” or foreign individuals—

“such as those who have persecuted others—but has not

categorically excluded from asylum those with communicable

diseases.” Id. at 731. Congress “may have trusted that the Executive

would use § 265 to protect the country from the introduction of

communicable diseases.” Id. And we expressly limited the effect

of our ruling by specifying that, if not deploying the statutory public-

health emergency power, “the Executive violates § 1158(a)(1) when

it expels [foreign individuals] before allowing them an opportunity

to apply for asylum.” Id.

Unlike Huisha-Huisha, this case asks us to interpret only the

INA itself, a comprehensive and internally consistent statute that

affords foreign individuals—even those whose asylum applications

will ultimately be denied—the opportunity to apply for asylum and

to receive an “individualized decision[].” Cardoza-Fonseca, 480

U.S. at 444. What’s more, we explicitly described our interpretation

of the Public Health Services Act’s emergency power as tentative:

“No one should read our opinion to bind the District Court or future

circuit panels regarding the final answer to the challenging merits

questions raised by this case.” Huisha-Huisha, 27 F.4th 733. We

decline the Government’s invitation and resist the dissent’s urging

to extend the reasoning of that decision here.

Statutory text, structure, and consistent Executive Branch and

judicial recognition of the law’s constraints all lead to the same

conclusion: Congress enacted the asylum statute, with narrow

exceptions specified by statute, to grant all foreign individuals

“physically present” in the United States a right to apply for asylum

and have their individual applications adjudicated. 8 U.S.C.

§ 1158(a). If the Government wishes to modify this carefully

structured and intricate system, it must present those arguments to

the only branch of government able to amend the INA: Congress.

The Proclamation and Guidance are also unlawful to the extent

they suspend the statutory withholding-of-removal protections that

Congress has “mandat[ed].” Aguirre-Aguirre, 526 U.S. at 419.

The INA’s withholding-of-removal provision bars the

Executive from removing a foreign individual to a country where

they would be persecuted based on race, religion, nationality,

membership in a particular social group, or political opinion. 8

U.S.C. § 1231(b)(3)(A). Yet the Guidance explicitly states that

USCIS is “not assessing persecution on account of a protected

ground” in making removal decisions, nor is any other part of the

Government making the statutorily mandated assessment. J.A. 134,

143; see also J.A. at 116, 120 (instructing Customs and Border

Patrol agents to “refer[]” to USCIS only “for a [Convention Against

Torture] screening” any individuals “who manifest a fear of the

country to which [Customs and Border Control] intends to return

them”). Thus, on its face, the Guidance refuses to provide persons

in the United States the statutory withholding-of-removal

protections against persecution that Congress has prescribed. This,

it cannot do.

As this court has already explained, if the Executive wants to

remove foreign individuals “to places prohibited by

§ 1231(b)(3)(A), it must identify a statute that creates an exception

to § 1231(b)(3)(A).” Huisha-Huisha, 27 F.4th at 731–32. The

Government has identified none. Neither Section 1182(f) nor

Section 1185(a) creates such an exception. As spelled out above,

supra Section III.A, neither provision mentions removal. Neither

grants the Executive the authority to supplant the INA’s removal

procedures. And neither creates any exception to the mandatory

withholding-of-removal provisions.

This conclusion is reinforced by Huisha-Huisha, where this

court determined that the Executive’s more robust authority under

the Public Health Service Act to prevent the “introduction” of

disease permitted it to temporarily supersede certain INA

procedures. 27 F.4th at 728–31. Yet statutory withholding of

removal to a country where the person’s life or freedom would be

threatened based on a statutorily protected characteristic, 8 U.S.C.

§ 1231(b)(3)(A), could not be superseded. See Huisha-Huisha, 27

F.4th at 732. Our observation in Huisha-Huisha about the steadfast

nature of the withholding-of-removal right remains true here. 4

Likewise, the Convention Against Torture’s bar against

removal to a country where the person will be tortured is mandatory.

“[A]n application for withholding of deportation or removal to a

country of proposed removal shall be granted if the applicant’s

We decline to address the Government’s forfeited assertion that

Section 1231(h) of Title 8 precludes judicial relief for APA claims

challenging the legality of agency guidance under the withholding

statute. The only place the Government even hinted at this argument

to the district court was in a footnote in its summary judgment brief,

see Gov’t Summary Judgment Br. at 59 n.5, RAICES v. Noem, No.

25-306 (D.D.C. July 2, 2025), which simply quoted Section 1231(h)

with no explanation. That is not enough to preserve an argument for

appeal. See Schneider v. Kissinger, 412 F.3d 190, 200 n.1 (D.C. Cir.

2005).

eligibility for withholding is established.” 8 C.F.R. § 208.16(d)(1);

see id. § 1208.16(d)(1) (same); see also Nasrallah v. Barr, 590 U.S.

573, 575 (2020) (“If the noncitizen demonstrates that he likely

would be tortured if removed to the designated country of removal,

then he is entitled to [Convention Against Torture] relief and may

not be removed to that country.”).

Congress directed that the Convention’s protections be

implemented by regulations, see 8 U.S.C. § 1231 note, and the

Departments of Homeland Security and Justice have promulgated

regulations doing just that. See C.F.R. §§ 208.1–31, 1208.1–33.

The regulations require a two-stage process for handling Convention

Against Torture claims.

At the first stage, an asylum officer conducts a credible fear

screening where the applicant must demonstrate that there is “a

significant possibility” that they are eligible for the Convention’s

protection. Id. §§ 208.30(e)(3), 1208.30(e); see also id.

§§ 208.1(a)(1), 1208.1(a)(1). Applicants who clear that threshold

move onto a second interview, which is designed “to elicit all

relevant and useful information” for a final Convention Against

Torture determination. Id. § 208.9(b). To qualify for Convention

Against Torture protection, the applicant must demonstrate in the

second interview that “it is more likely than not that he or she would

be tortured if removed to the proposed country of removal.” Id.

§ 208.16(c)(2); id. § 1208.16(c)(2) (stating the same). The second

interview must occur at least twenty-one days after the applicant

receives the record of the officer’s determination from the first-stage

screening, allowing the individual to gather evidence and obtain

representation if desired. See id. The applicant also “may have

counsel or a representative present, may present witnesses, and may

submit affidavits of witnesses and other evidence.” Id.

The Guidance casts aside the congressionally required rule and

collapses the process it mandates into a single interview at which

applicants must, without the benefit of time to assemble evidence or

to prepare a presentation, carry the ultimate burden of proving they

will likely be subjected to torture. In addition, contrary to existing

regulations, in the now-prescribed single “[Convention Against

Torture]-Only Assessment,” the applicant is not “entitled to” any

“consultation period” and cannot be accompanied by a consultant or

legal representative. J.A. 140, 141.

Agencies may not adopt guidance or other procedures that

conflict with or disregard duly promulgated regulations. See U.S.

Telecom Ass’n v. FCC, 400 F.3d 29, 35–36 (D.C. Cir. 2005). The

Government has not withdrawn the published regulations. Its

Guidance is accordingly arbitrary and capricious and contrary to law

to the extent it substitutes the Guidance’s less protective process for

the Convention Against Torture procedures required under existing

regulations.

We next consider the Government’s challenge to the district

court’s class certification. Class certification is governed by Federal

Rule of Civil Procedure 23. Rule 23 requires class representatives

to show that: “(1) the class is so numerous that joinder of all

members is impracticable; (2) there are questions of law or fact

common to the class; (3) the claims or defenses of the representative

parties are typical of the claims or defenses of the class; and (4) the

representative parties will fairly and adequately protect the interests

of the class.” Fed. R. Civ. P. 23(a).

A proposed class must also satisfy one of the three requirements

of Rule 23(b). The district court certified the class under Rule

23(b)(2), which applies when a defendant “has acted or refused to

act on grounds that apply generally to the class, so that final

injunctive relief or corresponding declaratory relief is appropriate

respecting the class as a whole.” Fed. R. Civ. P. 23(b)(2). “To

certify a class under this provision, a single injunction must be able

to ‘provide relief to each member of the class.’” DL v. District of

Columbia, 860 F.3d 713, 726 (D.C. Cir. 2017) (quoting Wal-Mart

Stores, Inc. v. Dukes, 564 U.S. 338, 360 (2011)). Rule 23(b)(2)

“exists so that parties and courts . . . can avoid piecemeal litigation

when common claims arise from systemic harms that demand

injunctive relief.” Id.

At the stay stage of this case, we denied the Government’s stay

request only after clarifying that we thought the district court’s

judgment was properly limited to a class defined as:

All individuals who (1) are present in the United

States while Proclamation 10888 and/or its

implementation is in effect, (2) are not statutorily

ineligible for all forms of relief from removal listed

in point (3), and (3) absent the Proclamation and/or

its implementing guidance, would seek asylum, 8

U.S.C. § 1158, withholding of removal under the

Immigration and Nationality Act, 8 U.S.C.

§ 1231(b), or withholding under the Convention

Against Torture, see FARRA, Pub. L. No. 105-277,

§ 2242, 112 Stat. 2681-822 (1998) (codified at 8

U.S.C. § 1231 note).

Stay Order, 2025 U.S. App. LEXIS 19422, at *3–4. So, as defined,

the class is geographically limited to individuals present in the

United States, temporally confined to the period the emergency

Proclamation remains in effect, and includes only those individuals

facing actual and imminent harm from the Proclamation and

Guidance.

The Government agrees with the clarified definition in all but

one respect: the inclusion of individuals who are not already in the

United States. In support, the Government puts forth several

arguments as to why we should further narrow the scope of the class,

none of which is persuasive.

The Government’s first and primary contention is that

individuals who are not currently in the United States lack imminent

injuries sufficient to establish Article III standing. This argument

clashes with the established law that courts may award class-wide

injunctive or declaratory relief under Rule 23(b)(2) so long as one

member of the class has standing. See J.D. v. Azar, 925 F.3d 1291,

1324 (D.C. Cir. 2019) (“It is settled that in a case involving joined,

individual plaintiffs bringing a shared claim seeking a single

remedy, Article III’s case-or-controversy requirement is satisfied if

one plaintiff can establish injury and standing.”). Indeed, the

Supreme Court has long recognized that only one plaintiff need

demonstrate standing to satisfy Article III in cases seeking

injunctive or declaratory relief. See, e.g., Town of Chester v. Laroe

Estates, Inc., 581 U.S. 433, 439 (2017) (requiring “[a]t least one

plaintiff”—but only one plaintiff—to establish “standing to seek

each form of relief requested in the complaint”); see also Baggett v.

Bullitt, 377 U.S. 360, 366 n.5 (1964); Rumsfeld v. F. for Acad. &

Institutional Rts., Inc., 547 U.S. 47, 52 n.2 (2006); Horne v. Flores,

557 U.S. 433, 446–47 (2009). As we have established in this circuit,

“the same ‘one plaintiff’ rule . . . applies with equal force to a Rule

23(b)(2) class action advancing a uniform claim and seeking

uniform injunctive and declaratory relief.” J.D., 925 F.3d at 1324.

Notwithstanding this settled law, the Government and our

dissenting colleague theorize that the one-plaintiff rule for a Rule

23(b)(2) class seeking only injunctive relief is untenable after the

Supreme Court’s decision in TransUnion LLC v. Ramirez, 594 U.S.

413 (2021). The Government and dissent overread TransUnion.

In TransUnion, the Supreme Court considered whether each

member of a Rule 23(b)(3) class must establish Article III standing

to recover “individual damages.” Id. at 431 (emphasis added).

True, the Court answered this question affirmatively. Id. at 431 &

n.4 (holding “[e]very class member must have Article III standing

in order to recover individual damages” but declining to “address

the distinct question whether every class member must demonstrate

standing before a court certifies a class” (emphases added)). The

Court did not, however, mention anything about the prevailing rule

requiring only one plaintiff to establish Article III standing to certify

a class seeking only declaratory or injunctive relief. See id.; see

also Ramirez v. TransUnion LLC, 951 F.3d 1008, 1023 (9th Cir.

2020), rev’d and remanded, 594 U.S. 413 (2021) (clarifying that the

court’s holding did not “apply to class actions involving only

injunctive relief”); see, e.g., Carolina Youth Action Project; D.S. by

& through Ford v. Wilson, 60 F.4th 770, 778 (4th Cir. 2023)

(concluding that because “at least one class representative . . . has

Article III standing to seek each form of equitable relief requested

in the complaint[,] [n]othing more is required on that score”

(emphasis added)); Olean Wholesale Grocery Coop., Inc. v. Bumble

Bee Foods LLC, 31 F.4th 651, 682 & n.32 (9th Cir. 2022) (en banc)

(observing that “the Supreme Court has long recognized that in

cases seeking injunctive or declaratory relief, only one plaintiff need

demonstrate standing to satisfy Article III” (collecting cases)); see

also 1 Newberg and Rubenstein on Class Actions § 2:3 (6th ed.

2025) (“If a class representative has standing, the case is justiciable

and the proponent of the class suit need not demonstrate that each

class member has standing.”). TransUnion’s pronouncement about

the Article III requirements for awarding individual damages to

members of a Rule 23(b)(3) class did not address, and thus hardly

“eviscerated,” Diss. Op. 6, this circuit’s one-plaintiff rule in cases

involving a Rule 23(b)(2) class seeking a single injunction, as

articulated in J.D., see Bahlul v. United States, 77 F.4th 918, 926

(D.C. Cir. 2023) (“[I]ntervening Supreme Court precedent must

clearly dictate a departure from circuit law” to “eviscerate the law

of our circuit.” (citation modified)).

The different Article III requirements for a Rule 23(b)(3) class

seeking to recover monetary damages, on one hand, and a Rule

23(b)(2) class seeking only injunctive relief, on the other, reflects

the different remedy that the court awards.

For a Rule 23(b)(3) class seeking damages, the court orders the

defendant to pay an individualized award of monetary damages to

each plaintiff. See Dukes, 564 U.S. at 362 (explaining that

“individualized monetary claims belong in Rule 23(b)(3)”); see also

2 Newberg and Rubenstein on Class Actions § 4:54 (6th ed.)

(explaining that “each [Rule 23(b)(3)] class member is likely to be

entitled to a specific amount of damage pertinent to the harm she

suffered”). Such individualized relief demands a concrete injury for

each person who would recover, as the awarded damages must

redress each plaintiff’s individual harm. See TransUnion, 594 U.S.

at 431 (requiring every class member to demonstrate Article III

standing to “recover individual damages”). For a Rule 23(b)(2)

class seeking injunctive relief, however, a “single injunction or

declaratory judgment . . . provide[s] relief to each member of the

class.” Dukes, 564 U.S. at 361.

But even assuming that courts may not award class-wide

injunctive or declaratory relief under Rule 23(b)(2) to a class

including individuals who potentially lack Article III standing at the

time the class was certified, but see J.D., 925 F.3d at 1324; Town of

Chester, 581 U.S. at 439, the district court’s class definition, as

clarified by the stay panel, comports with Article III.

Under the operative class definition, a noncitizen becomes a

member of the class—and thus obtains relief—only when present in

the United States and only if they are “not statutorily ineligible for”

asylum, withholding of removal, or withholding under Convention

Against Torture and, “absent the Proclamation and/or its

implementing [guidance],” would seek any of those forms of relief

or protection. Stay Order, 2025 U.S. App. LEXIS 19422, at *3–4.

And it is well established that those who are not yet members of a

Rule 23(b)(2) class may become class members in the future once

they face imminent harm from the challenged policy. See Brown v.

Plata, 563 U.S. 493, 531–32 (2011) (affirming class of all California

prisoners who are or “will become” physically or mentally ill and

“will become members of the plaintiff classes” (emphases added));

INS v. Nat’l Ctr. for Immigrant Rights, 502 U.S. 183, 186 (1991)

(addressing the merits of the claims of a class that included “all those

persons who have been or may in the future be denied the right to

work” pursuant to a federal regulation (emphasis added)); J.D., 925

F.3d at 1312 (affirming class of “pregnant [unaccompanied

noncitizen minors] who are or will be in [federal] custody”

(emphasis added)); M.D. by Stukenberg v. Abbott, 907 F.3d 237,

246, 271 (5th Cir. 2018) (affirming class of “all children now, or in

the future” in the state’s conservatorship program (emphasis

added)); Robidoux v. Celani, 987 F.2d 931, 939 (2d Cir. 1993)

(remanding with instruction to certify “a class comprising at least all

current and future [state] applicants for [public] assistance”

(emphasis added)); see also A. B. v. Haw. State Dep’t of Educ., 30

F.4th 828, 838 (9th Cir. 2022) (“The inclusion of future class

members in a class is not itself unusual or objectionable, because

when the future persons referenced become members of the class,

their claims will necessarily be ripe.” (quotation marks omitted));

Newberg and Rubenstein, supra § 3:15 (adducing from federal cases

that including “future claimants . . . make[s] class certification more,

not less, likely”).

Defining a Rule 23(b)(2) class to encapsulate anyone who will

face injury from the implementation of the Proclamation is proper

because the “scope of injunctive relief is dictated by the extent of

the violation established.” Califano v. Yamasaki, 442 U.S. 682, 702

(1979). The scope of a Rule 23(b)(2) class likewise tracks the extent

of the violation. See Dukes, 564 U.S. at 360. Here, the

implementation of the unlawful Proclamation will harm present and

future class members alike, giving rise to “common claims aris[ing]

from systemic harms” such that “a single injunction” will “‘provide

relief’” to both present and future class members. DL, 860 F.3d at

726 (quoting Dukes, 564 U.S. at 360). “Relief targeted only at

present [class] members,” however, in the words of the Supreme

Court, would “fail to adequately protect future class members” who

will uniformly be subject to the same harmful actions or unlawful

policy. Plata, 563 U.S. at 531–32; cf. Council of and for the Blind

of Del. Cnty. Valley, Inc. v. Regan, 709 F.2d 1521, 1542 n.39 (D.C.

Cir. 1983) (“Since the future class members who actually suffer

injury thereby become present class members eligible for relief, a

definition encompassing future members is superfluous.” (citation

omitted)).

The Government next posits that certifying a class of all persons

who have been or will be harmed by the challenged action is an

“end-run around” the Supreme Court’s condemnation of nationwide

injunctive relief in Trump v. CASA, 606 U.S. 831 (2025). Gov’t

Reply 28. The dissenting opinion echoes this sentiment. Diss. Op.

6. But CASA, to the extent it addresses class actions at all, says the

opposite: CASA decried “universal injunctions” as a “workaround”

to avoid the appropriate but rigorous process of certifying a class.

606 U.S. at 850. The Court confirmed, however, that “universal

relief” may be suitable in cases in which Rule 23’s requirements are

satisfied because class actions—unlike universal injunctions—have

a preclusive effect and thus “protect” defendants “from future suits.”

Id. at 849 & n.15; accord id. at 868 (Alito, J., joined by Thomas, J.,

concurring); id. at 869 (Kavanaugh, J., concurring); id. at 919

(Sotomayor, J., joined by Kagan and Jackson, JJ., dissenting). The

correct route to nationwide injunctive relief, CASA says, is to do

exactly what Plaintiffs have done: “conduct. . . a proper[] class

action” following the “procedure set out in Rule 23.” Id. at 849

(citation modified).

For these reasons, we hold the class definition as clarified by

the stay panel is appropriate.

Finally, the Government argues that 8 U.S.C. § 1252(f)(1)

barred the district court from both enjoining the Government from

implementing the Proclamation and from vacating the Guidance.

We disagree.

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). “[G]enerally,” Section 1252(f)(1) “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” part IV of the INA. Garland v. Aleman

Gonzalez, 596 U.S. 543, 550 (2022). Part IV of the INA

encompasses 8 U.S.C. §§ 1221–1232. See Aleman Gonzalez, 596

U.S. at 549.

The district court did not “enjoin or restrain” the Government’s

“operation” of any provision covered by Part IV of the INA. The

district court’s injunction thus falls beyond Section 1252(f)(1)’s

reach.

The district court enjoined government officials (other than the

President) from relying on the Proclamation to enforce the directives

in the Guidance—that the district court separately declared unlawful

and vacated—to remove “individual plaintiffs or class members

using non-statutory repatriation or removal proceedings.” J.A. 319.

The Proclamation invokes as its source of authority Sections 1182(f)

and 1185(a) of Title 8, which are in Part II—not Part IV—of the

INA.

More specifically, the district court enjoined government

officials (1) “from removing any individual plaintiffs or class

members without complying with the asylum statute, 8 U.S.C.

§ 1158(a)”; (2) from relying on the Proclamation or Guidance to

“narrow[] the eligibility criteria for asylum without complying with

8 U.S.C. § 1158(b)(2)(C)”; and (3) from “using procedures other

than those set forth in the relevant regulations when processing

individual plaintiffs’ or class members’ [Convention Against

Torture] protection claims.” J.A. 319–20. Neither the asylum

statute nor Convention Against Torture provisions are in Part IV of

the INA: The asylum statute, 8 U.S.C. § 1158, appears in Part I of

the INA and the Convention Against Torture provision appears in a

different statute altogether, FARRA, Pub. L. No. 105-277, § 2242,

112 Stat. 2681-822 (1998). 5 So Section 1252(f)(1)’s injunction

constraints do not apply.

By contrast, the district court declined to enjoin the

Government to comply with the withholding of removal statute, 8

U.S.C. § 1231(b)(2), which is in Part IV of the INA and thus subject

to Section 1252(f)(1)’s bar on injunctive relief. RAICES, 793 F.

Supp. 3d at 105–06. 6

The United States Code’s codifiers, not Congress, chose to place

the directive to promulgate Convention Against Torture removal-

withholding rules at Section 1231 in the codified immigration laws.

See 8 U.S.C. § 1231 note. Both because the rule, not the statute,

establishes the applicable process, and because “[t]he legislative

intent of Congress is to be derived from the language and structure

of the statute itself, if possible, not from the assertions of codifiers,”

United States v. Lanier, 520 U.S. 259, 267 n.6 (1997), that

placement does not subject the Convention Against Torture removal

process to Section 1252(f)(1)’s remedial restriction. See Warner v.

Goltra, 293 U.S. 155, 161 (1934) (“The compilers of the Code were

not empowered by Congress to amend existing law, and doubtless

had no thought of doing so.”).

Contrary to our dissenting colleague’s interpretation of the district

court’s injunction, the district court never held that it was requiring

We see no error in how the district court navigated and applied

the contours of Section 1252(f)(1) in crafting its injunctive relief.

And neither the Government nor our dissenting colleague persuades

us otherwise.

To start, it is not enough that the district court’s Memorandum

Opinion discusses provisions in Part IV. See generally RAICES, 793

F. Supp. 3d 19. The pertinent inquiry is whether the district court’s

order “enjoin[s] or restrain[s] the operation of [a] provision” located

in Part IV. 8 U.S.C. § 1252(f)(1). True, the district court discussed

the Executive’s sole removal authorities within the INA—Sections

1229a and 1225(b), in Part IV—in reaching its holding that “neither

§ 1182(f) and § 1185(a) . . . authorize[s] the President (or his

subordinates) to adopt extra-statutory procedures for expelling”

foreign individuals. RAICES, 793 F. Supp. 3d at 108. And, having

concluded that the Proclamation lacks statutory support, the court

determined that equitable considerations supported enjoining the

Proclamation given the Government’s admission that vacating the

implementing guidance alone would not alter the Executive’s

conduct. Id. at 109. But just because the district court discussed

provisions in Part IV does not mean that the district court enjoined

provisions in Part IV.

Nor are we persuaded by the Government’s argument that the

injunction violates Section 1252(f)(1) because it could have the

indirect effect of compelling the Executive to adhere to the INA’s

exclusive removal procedures, 8 U.S.C. §§ 1229a and 1225(b)(1),

both of which are codified in Part IV of the INA. The injunction

does not mandate removals; it requires only that if the Executive

the Executive to follow statutory procedures “for removal.” See

Diss. Op. 29 (quoting not from the district court’s injunction but

from its irreparable harm analysis—which applied to the injunction

as a whole—in support of the assertion that the district court ordered

the Government to follow the statutory removal procedures in

Sections 1225(b)(1) and 1229a).

removes foreign individuals, it does so consistent with statutory and

regulatory provisions that govern asylum and withholding of

removal—neither of which are in Part IV of the INA. In this way,

it is the INA itself, not the district court’s injunction, that mandates

how the Executive is to effectuate removals.

Our dissenting colleague takes a slightly different tack and

reaches a contrary conclusion based on his sua sponte theory for an

“inherent Executive expulsion power.” Diss. Op. 43. It is unclear

to us how this theory supports the dissent’s view that the district

court’s injunction runs afoul of Section 1252(f)(1)’s bar on

enjoining the operation of provisions in Part IV of the INA. But

regardless, the Government disclaims any inherent power to

summarily remove noncitizens. See Gov’t Br. 28–35; Oral Arg. Tr.

23:16. And the statutory provisions that the Government does

invoke—8 U.S.C. §§ 1182(f), 1185(a)(1)—do not afford the

authority it claims in the Proclamation and Guidance, see supra

Section III.A, which the dissent seems to recognize, see Diss. Op.

30–42. The district court’s injunction against removing class

members “using non-statutory repatriation or removal proceedings,”

J.A. 319, “merely prohibit[s] the [Executive] from doing what . . .

[it] cannot do,” Diss. Op. 28. Section 1252(f)(1) does not bar such

relief.

The Government next argues that Section 1252(f)(1) bars the

district court from vacating the Guidance. Because vacatur under

the APA is distinct from injunctive relief and Section 1252(f)(1)

addresses only the latter, we hold Section 1252(f)(1) inapplicable to

the vacatur.

Congress in Section 1252(f)(1) targeted orders that “enjoin” or

“restrain” the “operation” of provisions in Part IV. As the Supreme

Court has explained, “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 Gonzales, 596 U.S at 550 (emphasis added).

The heading Congress enacted for Section 1252(f)(1) describes

it as a “Limit on injunctive relief.” Omnibus Consolidated

Appropriations Act of 1997, Pub. L. No. 104–208 § 242(f), 110 Stat.

3009, 3009-611–612 (1996) (citation modified). That title

reinforces the limits of the directive in the text. See Dubin v. United

States, 599 U.S. 110, 120–21 (2023) (“[T]he title of a statute and the

heading of a section are tools available for the resolution of a doubt

about the meaning of a statute.” (citation modified)). “By its plain

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

less than a limit on injunctive relief.” Biden v. Texas, 597 U.S. at

801 (alteration in original) (quoting Reno v. American-Arab Anti-

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

Vacatur under Section 706 functions quite differently from an

injunction. “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.” Nken v. Holder, 556 U.S. 418,

428 (2009) (citation modified). Put simply, an injunction “is a

means by which a court tells someone what to do or not to do,” id.,

and such an order is “enforceable by contempt,” I.A.M. Nat’l

Pension Fund Benefit Plan A v. Cooper Indus., Inc., 789 F.2d 21, 24

(D.C. Cir. 1986). By contrast, when a court vacates agency action,

it simply “h[olds] unlawful and set[s] aside” the action, 5 U.S.C.

§ 706(2), as the district court did here in divesting the Guidance of

enforceability. See Texas v. United States, 40 F.4th 205, 220 (5th

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

under the APA because “a vacatur does nothing but re-establish the

status quo absent the unlawful agency action,” and “neither compels

nor restrains further agency decision-making”). The district court’s

vacatur of the Guidance does not “enjoin” or “restrain” anyone; the

court’s separately specified injunctive relief served that role.

Vacatur is a well-established remedy for 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);

accord 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.” (citation modified)). Cognizant of that norm, Congress

can, and occasionally does, limit courts’ power to vacate agency

action under Section 706 of the APA. Those limits are quite unlike

Section 1252(f)(1). Congressionally prescribed limits on the court’s

vacatur power explicitly refer to the inapplicability of APA

remedies. See, e.g., 42 U.S.C. § 7607(d)(1) (“[S]ection 706 of [the

APA] shall not . . . apply to actions to which this subsection

applies.”) (Clean Air Act); 15 U.S.C. § 57a(e)(5)(C) (“Section

706(2)(E) of [the APA] shall not apply to any rule promulgated

under subsection (a)(1)(B).”) (Magnuson-Moss Warranty – Federal

Trade Commission Improvement Act); 16 U.S.C. § 1855(f)(1)(B)

(“[T]he appropriate court shall only set aside any such regulation or

action on a ground specified in section 706(2)(A), (B), (C), or (D),”

but not (E) or (F).) (Magnuson-Stevens Act). Section 1252(f)(1)

makes no reference to the APA.

At bottom, Section 1252(f)(1)’s prohibition is limited to

enjoining the operation of certain statutory provisions. It leaves

intact the courts’ power under the APA to hold unlawful or set aside

agency action that violates its terms. Because the district court’s

vacatur does not enjoin or restrain Executive conduct, but instead

sets aside the Guidance to the extent it is arbitrary and capricious or

contrary to law, it is unaffected by Section 1252(f)(1).

IV.

For these reasons we hold that the Proclamation and Guidance

are unlawful insofar as they circumvent Congress’s carefully crafted

removal procedures and cast aside federal laws that afford

individuals the opportunity to apply and be considered for a grant of

asylum or withholding of removal. As such, we affirm the district

court’s grant of summary judgment and affirm the district court’s

class certification, as clarified by the stay panel and consistent with

this opinion.

So ordered.

Walker, Circuit Judge, concurring in part and dissenting in

part:

Last year, the Department of Homeland Security issued in-

formal guidance related to a proclamation that President Trump

signed on his inauguration day. The Proclamation and Guid-

ance generally cover aliens who illegally cross the border. The

Guidance subjects those aliens to summary removal proce-

dures — procedures that conflict with more fulsome proce-

dures required by 8 U.S.C. §§ 1225 and 1229a. Both the Proc-

lamation and Guidance prevent those aliens from applying for

asylum — a protection that Congress made entirely discretion-

ary. And they strip away statutory protections against removal

to countries where an alien will be persecuted — protections

that Congress made entirely mandatory.

The plaintiffs sued. The district court certified a global

class and issued, among other remedies, a class-wide injunc-

tion. The injunction orders the Executive, among other things,

to abide by the procedures specified in 8 U.S.C. §§ 1225 and

1229a and to accept asylum applications.

I agree with much of the majority’s thoughtful opinion.

The Executive cannot remove aliens to countries where they

will be persecuted, and the Proclamation and Guidance cannot

strip them of mandatory procedures that protect against that re-

moval. But unlike the majority, I conclude:

I. The district court wrongly issued relief to poten-

tially millions of plaintiffs without standing.

II. The Executive has already exercised his lawful

discretion to deny all asylum applications. So he

may foreclose the application process as futile.

III. The injunctive relief the district court issued was

barred by 8 U.S.C. § 1252(f)(1), which forbids

inferior federal courts from issuing injunctions

ordering the Executive to obey §§ 1225 and

1229a.

I take each in turn.

The district court issued injunctive relief to a class of po-

tentially millions of plaintiffs without standing. The class in-

cludes “all individuals who are or will be subject to the Procla-

mation” or Guidance “and who are now or will be present in

the United States.”1 That includes individuals who will be pre-

sent in the United States and subject to the Proclamation or

Guidance only after several years and the most speculative and

attenuated chain of possibilities imaginable. That was wrong.

“Article III does not give federal courts the power to order re-

lief to any uninjured plaintiff, class action or not.”2

On a remote island some 700 miles off the coast of main-

land India lies North Sentinel Island.3 Its inhabitants, the

JA 292 (emphases added).

TransUnion LLC v. Ramirez, 594 U.S. 413, 431 (2021) (quoting

Tyson Foods, Inc. v. Bouaphakeo, 577 U.S. 442, 466 (2016) (Rob-

erts, C.J., concurring)). Because here the district court both certified

the class and issued relief to it, I need not reach the issue of whether

certification posed a problem. See id. at 431 n.4 (declining to “ad-

dress . . . whether every class member must demonstrate standing be-

fore a court certifies a class”).

See Satyaki Paul et al., Sentinelese Contacts: Anthropologically Re-

visiting the Most Reclusive Masters of the Terra Incognita North Sen-

tinel Island, 11 Humans. & Soc. Scis. Commc’ns 1, 2 (2024).

Sentinelese, “may be the most isolated people group in the

world.”4 Little is known about them, and strangers seeking to

learn more have often been met with a shower of Sentinelese

arrows.5

Do the Sentinelese people, who might hypothetically be

contacted one day, and might hypothetically decide to come to

the United States by illegally crossing the southern Border,

have standing in today’s case? No. Without knowing the

United States exists, they can’t even form vague “‘some day’

intentions” to enter, let alone provide “concrete plans, or in-

deed even any specification of when the some day will be.”6

True, a Sentinelese individual (let’s call him Bob) may be

contacted by fishermen who stray onto the shores of North Sen-

tinel Island. Bob may then end up advocating for a less isola-

tionist Sentinelese foreign policy. In response, Bob’s Sen-

tinelese brethren may persecute him for his views. Bob may

then flee the island, arriving by boat on the shores of India. In

India, Bob may learn of the United States and decide to make

the voyage to our country. After saving up some funds, Bob

may traverse half the globe, ultimately landing in Nuevo La-

redo, near the southern border. Bob may then cross the border

in violation of the President’s entry ban. After Bob is found,

he may learn of the asylum process and decide to apply.

Sentinelese in India, Joshua Project (accessed February 25, 2026),

https://perma.cc/Y3JN-863M; see also The Sentinelese, Survival In-

ternational (accessed February 25, 2026), https://perma.cc/H8L8-

WAN7 (“The Sentinelese are the most isolated Indigenous people on

Earth . . . .”).

See, e.g., J. Oliver Conroy, The Life and Death of John Chau, the

Man Who Tried to Convert His Killers, The Guardian (Feb. 3, 2019),

https://perma.cc/SYK5-6J3F.

Lujan v. Defenders of Wildlife, 504 U.S. 555, 564 (1992).

Bob may do all these things. And if so, he would fall

within the class definition. Still, to put it mildly, that is a spec-

ulative and attenuated chain of possibilities. So it cannot

ground Article III standing.7

What is true of Bob is true of many who fall within the

class definition — even those who may seem more likely than

Bob to cross our borders. They face the same problem: What

will subject them to the allegedly illegal government action is

their illegal entry.8 But the Supreme Court’s “cases reveal that,

for purposes of assessing the likelihood” that government ac-

tors will engage in allegedly illegal conduct toward a plaintiff,

the Court has been “unwilling to assume that the party seeking

relief will” engage in the sort of “misconduct” that would

“place him or her at risk of that injury.”9 If that has been true

when the individual has already broken the law before, and al-

ready been subject to the illegal conduct before,10 then it fol-

lows a fortiori that it is true when there is no evidence the peo-

ple have previously broken the laws at all.11

Nor is there any particularized reason to think any partic-

ular plaintiff abroad will, in fact, break this nation’s immigra-

tion laws. But that is what has generally been required to over-

come the presumption that parties will not engage in illegal

See FDA v. Alliance for Hippocratic Medicine, 602 U.S. 367, 383

(2024); Clapper v. Amnesty International USA, 568 U.S. 398, 401

(2013).

“The Proclamation’s authority to suspend entry is not challenged

here.” Maj. Op. 4.

Honig v. Doe, 484 U.S. 305, 320 (1988).

See, e.g., City of Los Angeles v. Lyons, 461 U.S. 95, 102–03 (1983)

(discussing O’Shea v. Littleton, 414 U.S. 488 (1974)).

Id. at 102 (acknowledging that past conduct is relevant to assessing

future risk).

conduct.12 And standing must be assessed plaintiff-by-plain-

tiff — even in a class action.13

Because the only class members who have standing are

those who either (a) are already in the United States or (b) have

shown some particularized reason for believing they will im-

minently break the immigration laws so as to render themselves

subject to the alleged illegality from enforcement of the chal-

lenged Proclamation and Guidance, I would narrow the class.

This court’s opinion in J.D. v. Azar doesn’t defeat this

analysis.14 Although J.D. suggested that “only one plaintiff”

needs “standing to seek each form of relief requested in the

complaint,”15 after TransUnion and Trump v. CASA,16 J.D.

bears no weight here.

Start with J.D.’s relationship to TransUnion. In J.D., our

court said that if there were multiple “individual plaintiffs

bringing a shared claim seeking a single remedy, Article III’s

case-or-controversy requirement” was “satisfied if” only “one

plaintiff” could “establish injury.”17 TransUnion had this to

say about that: “Article III does not give federal courts the

See, e.g., Honig, 484 U.S. at 320–21.

See TransUnion, 594 U.S. at 431; see also Mirabelli v. Bonta, 146

S. Ct. 797, 803 (2026) (per curiam) (assessing whether each class

member had standing to seek injunctive relief under Rule 23(b)(2)).

925 F.3d 1291 (D.C. Cir. 2019).

Id. at 1324.

606 U.S. 831 (2025).

J.D., 925 F.3d at 1323.

power to order relief to any uninjured plaintiff, class action or

not.”18

CASA removes any doubt about whether J.D. remains

good law. As CASA explained, courts lack equitable power to

issue relief that is more sweeping than necessary to “offer com-

plete relief to the plaintiffs before the court.”19 So CASA stayed

the injunctions at issue in that case “to the extent that” they

were “broader than necessary to provide complete relief to each

plaintiff with standing to sue.”20 Thus, the upshot of CASA is

clear. Courts lack equitable authority to do what J.D. said they

could — issue injunctions that protect non-parties. So J.D. has

been “eviscerated” by TransUnion and CASA.21

TransUnion, 594 U.S. at 431; see also Mirabelli, 146 S. Ct. at 803

(determining whether each plaintiff had standing to seek relief even

in a Rule 23(b)(2) class action seeking injunctive relief).

CASA, 606 U.S. at 852 (emphasis removed). I do not reach any

issues with universal vacatur, which unlike a universal injunction,

may be statutorily authorized, and like certain injunctions, may pro-

vide relief to non-parties only incidentally. Cf. id. at 847 n.10.

Id. at 861.

Dellums v. U.S. Nuclear Regulatory Commission, 863 F.2d 968,

978 n.11 (D.C. Cir. 1988).

I agree with Judge Katsas that J.D.’s “one-plaintiff rule” can at

most apply “only when, the class seeks” a truly “indivisible remedy”

such that “courts cannot dole” it “out plaintiff by plaintiff, or class-

member by class-member.” RAICES v. Noem, No. 25-5243 (Aug. 1,

2025) (slip op. at 57) (Katsas, J., concurring in part and dissenting in

part) (cleaned up); see also Town of Chester v. Laroe Estates, Inc.,

581 U.S. 433, 439–40 (2017) (holding that any one-plaintiff rule still

requires that additional parties “have Article III standing in order to

pursue relief that is different from that which is sought by a party

with standing”).

The majority’s alternative theory runs into its own prob-

lems.

Per the majority, it’s no problem that many individuals

who fall within the new class definition do not yet have stand-

ing. They are not parties. And the court has so far declined to

issue relief to them. But in the future, one such individual may

have standing. If so, in that very moment, he will be trans-

formed into a class member. Then, and only then, will this new

class member receive the protection of the court’s remedial or-

der. More may then follow suit, one by one being added to the

class, and one by one getting relief against the Government.

I have questions about the majority’s theory of the class as

a brooding eternality hovering above our legal system, ever

gathering new plaintiffs under the shadow of its wings. Here

are some that come to mind:

• How does the majority’s theory square with the no-

tion of a “final” judgment given that the judgment

remains open for all eternity?

• Can an injunction take on a life of its own, chang-

ing organically, ever commanding Executive offi-

cials to do new things to new individuals?

• How is the majority’s theory consistent with the

nature of a declaratory judgment, which is a decla-

ration of the rights of the parties — not a contin-

gent future declaration of rights of non-parties?22

28 U.S.C. § 2201(a) (authorizing courts to “declare the rights and

other legal relations of any interested party seeking such declara-

tion”).

• On the majority’s theory, the court has not yet is-

sued a remedy protecting those without standing.

So will it sua sponte issue a new remedy automat-

ically every time one of those individuals gets

standing? Where do courts get authority to do that?

• Is the majority’s theory consistent with the nature

of a class action? As the Supreme Court has ex-

plained, at least for purposes of issuing relief, “[a]

class action . . . is a species” of “traditional join-

der.”23 In ordinary suits, can we join new parties

potentially several centuries after what one might

otherwise call the close of the litigation?

• How does the majority’s theory accord with United

States v. Mendoza?24 Under Mendoza, a plaintiff

may not “seek[] to estop” the Government as de-

fendant “from relitigating an issue which” it “pre-

viously litigated and lost against another plain-

tiff.”25 But per the majority, individuals who were

never plaintiffs, who never earned relief during the

pendency of the litigation, may show up into court

years after the litigation has concluded and claim

relief against the Government simply because the

Government lost against other plaintiffs. Isn’t that

even worse than offensive non-mutual collateral

Shady Grove Orthopedic Associates, PA v. Allstate Insurance Co.,

559 U.S. 393, 408 (2010) (plurality opinion of Scalia, J.); see also

TransUnion, 594 U.S. at 431 (treating even absent class members as

ordinary plaintiffs when determining who may get relief).

464 U.S. 154 (1984).

Appling v. State Farm Mutual Auto Insurance Co., 340 F.3d 769,

775 (9th Cir. 2003) (describing offensive non-mutual collateral es-

toppel); Mendoza, 464 U.S. at 162 (holding that offensive non-mu-

tual collateral estoppel doesn’t apply against the Government).

estoppel, since on the majority’s theory, the new

individuals never even have to file suit?

• Is the majority forcing into the class countless fu-

ture class members who have no opportunity to opt

out or even to argue the adequacy of the represen-

tation of “their” class? That appears to be the logic

of the majority’s position.26 And that may seem

fine for future class members if the class wins. But

what if the class loses?27

An alternative approach would let future class members later opt

in if the class wins and opt out if the class loses. But ending “one-

way intervention” was “one of the major impetuses behind the mod-

ern Rule 23.” Brian T. Fitzpatrick, The Future of Class Actions after

Oral Argument in Trump v. CASA, FedSoc Blog (May 22, 2025),

https://perma.cc/28PX-5E8T.

On opt out, see Phillips Petroleum Co. v. Shutts, 472 U.S. 797,

811–12 (1985). Of course, it has been commonly thought that opt

out is not required in a Rule 23(b)(2) class. But the traditional ex-

planation is that the “class seeks an indivisible” remedy “benefitting

all its members at once.” Wal-Mart Stores, Inc. v. Dukes, 564 U.S.

338, 362–63 (2011). Perhaps dispensing with opt out makes sense

when the relief necessarily “affect[s] the entire class at once.” Id. at

361–62. But it makes much less sense when a Rule 23(b)(2) class

involves a remedy that is not truly indivisible. Cf. RAICES, supra,

at 57 (Katsas, J., concurring in part and dissenting in part) (“[T]his

case involves no such indivisible remedy because awarding complete

relief to any one plaintiff or class-member would be readily feasi-

ble.”); 2 William B. Rubenstein, Newberg & Rubenstein on Class

Actions § 4:34 (6th ed. 2022 and Dec. 2025 Update) (explaining that

many courts find Rule 23(b)(2) class actions appropriate merely

when the “class’s claims are ‘cohesive,’” an inquiry that “is similar

to 23(b)(3)’s demand that common issues ‘predominate’”).

As to adequacy, see Shutts, 472 U.S. at 812 (“the Due Process

Clause of course requires that the named plaintiff at all times ade-

quately represent the interests of the absent class members”).

• Do these individuals at least get an opportunity to

object to “a proposed settlement, voluntary dismis-

sal, or compromise”?28 Rule 23(e) “entitles all

class members to an opportunity to object” before

a class action is “dismissed or compromised.”29

But these individuals aren’t class members. Do

they get to object anyway?

• Do they get notice in case of “a proposed settle-

ment, voluntary dismissal, or compromise?”30 The

court “must direct notice . . . to all class members

who would be bound by the proposal.”31 But alt-

hough these individuals might one day be bound,

they are not class members. So must the court pro-

vide them notice?32

• Does the majority’s conception create potential ad-

equacy problems? As the Court explained in

Devlin, when the class “reach[es] a settlement that

is approved over” a class member’s “objections,”

the class member’s “interests by definition diverge

from those of the class representative.”33 How can

we know whether any of these future class

Adequacy concerns loom all the larger if future class members get

no opportunity to opt out. See Newberg & Rubenstein, supra, § 4:27

(“Because Rule 23(b)(2) classes are non-opt-out classes, Rule

23(a)’s insistence” on adequacy, among other things, “takes on spe-

cial resonance . . . .”).

Fed. R. Civ. P. 23(e); id. 23(e)(5).

Devlin v. Scardelletti, 536 U.S. 1, 8–9 (2002).

Fed. R. Civ. P. 23(e).

Id. 23(e)(1)(B).

Would someone like Bob, see supra, get notice?

Devlin, 536 U.S. at 9.

members would’ve objected? If we can’t, how can

we know whether representation is adequate?

• As soon as one of these non–class members satis-

fies standing, he gets ushered into the class. At that

precise moment, does the matter become res judi-

cata? Is there any other context where res judicata

operates like that?

• How does the right to appeal work for these non–

class members?34 May they appeal a class-certifi-

cation order?35 May they appeal an unfavorable

judgment, even though it doesn’t bind them yet? If

not, and they have to wait until they satisfy stand-

ing and join the class, will the appeal clock have

run?36

• Does any of this accord with the class action’s his-

torical origins in the bill of peace?37

The most fundamental question is this: Why think this ex-

traordinary workaround to TransUnion, CASA, and Article III

is available?38 The majority’s evidence boils down to a passing

remark in Brown v. Plata.39 But even read for all its worth,

Brown does not support issuing relief to those who do not have

standing.

Cf. id. at 11.

See Fed. R. Civ. P. 23(f).

Cf. Fed. R. App. P. 4 (a “notice of appeal . . . must be filed with

the district clerk within” a certain amount of time).

See CASA, 606 U.S. at 849.

Cf. id. at 868 (Alito, J., concurring) (cautioning against interpreta-

tions of class actions that would bring “the universal injunction” back

“from the grave”).

563 U.S. 493 (2011).

In Brown, the Supreme Court upheld an injunction order-

ing California to release up to 46,000 convicted criminals from

its prisons (nearly a third of California’s prison population).40

The reason for the injunction was generally that overcrowding

in the prisons had led to such substandard medical and mental

health care that it violated the Eighth Amendment’s prohibition

on cruel and unusual punishment.41

But the remedy faced a problem. The Prison Litigation

Reform Act required that “a remedy . . . extend no further than

necessary to remedy the violation of the rights of a ‘particular

plaintiff or plaintiffs.’”42 Yet, the injunction had ordered the

release of tens of thousands of individuals, many of whom were

not plaintiffs, nor suffering Eighth Amendment violations.

The Court justified that on the grounds that the injunction

was necessary to give complete relief to those suffering Eighth

Amendment violations. As the Court put it, “a narrow and oth-

erwise proper remedy for a constitutional violation” is not “in-

valid simply because it will have collateral effects.”43 The

Court also emphasized that the text of the PLRA “mean[t]” by

narrow tailoring “only that the scope of the order must be de-

termined with reference to the constitutional violations estab-

lished by the specific plaintiffs before the court.”44 Those

plaintiffs had established extensive violations — past, present,

and certainly impending — to many individuals.

Id. at 500–01.

Id. at 510–11, 517–22.

Id. at 531 (quoting 18 U.S.C. § 3626(a)(1)(A)).

Id.

Id. at 530.

The Court also said that because many “[p]risoners” would

later “become sick,” “[r]elief targeted only at present members

of the plaintiff classes” might “therefore fail to adequately pro-

tect future class members who w[ould] develop serious physi-

cal or mental illness.”45 The Court explained it could take those

individuals into account because even if they did “not yet have

a claim that they ha[d] been subjected to care that violate[d] the

Eighth Amendment,” they were “in no sense . . . remote by-

standers.”46

I’m not sure Brown’s “future class members” language

bears much weight here.47 For starters, it is probably dicta,

since the Court said both that the injunction was necessary in

order to grant complete relief to the present plaintiffs and that

in any event, the PLRA required only that the Court focus on

the constitutional violations “established by the specific plain-

tiffs before the court,” not the constitutional violations actually

suffered by those particular plaintiffs.48 And regardless, Brown

emphasized that it could take those individuals into account be-

cause they were “in no sense . . . remote bystanders.”49

Id. at 531–32.

Id. at 532.

Even if the majority’s reading were the most facially plausible, I

would hesitate to read Brown that way for two reasons. First, it

would be uncharitable to the Court. We would have to assume the

Court adopted an extraordinary and novel theory of class actions in

an off-hand comment. See also supra, at 7–11 (noting some con-

cerns with this theory of class actions). Second, if the Court meant

to announce this novel doctrine of class actions, it slipped past the

dissent. That’s telling. The dissent did not spare its criticism of the

majority’s understanding of class actions. See Brown, 563 U.S. at

552 (Scalia, J., dissenting).

Brown, 563 U.S. at 531 (majority opinion).

Id. at 532.

That is language the Court has used over and over again in

describing the bedrock requirement of Article III standing.50

So even if we were to squeeze everything we could out of

Brown, we cannot draw from it authority to create the worka-

round par excellence to the rule of TransUnion, CASA, and Ar-

ticle III.

* * *

I cannot subscribe to the majority’s theory of class-action-

cum-advisory-opinion. On the majority’s theory, as soon as

any one individual has standing to challenge a policy, he may

certify a class. That class may include every single person who

may ever have standing to challenge a given government pol-

icy — up to billions of people, many of whom may be born

decades from now. As soon as those individuals check the

standing box — even if it is not for a thousand years after “fi-

nal” judgment — they get adopted into the class and inherit a

judgment issued to their ancestors. The judgment then be-

comes res judicata for these newly added class members. Thus,

via the class device, our holdings, and the holdings of the 94

district courts, will settle, at least for anyone who could ever

have any interest in it, any potential legal dispute over a gov-

ernment policy for all time. And to think the Supreme Court

once balked at a class action of a mere “one and a half million

See, e.g., Bost v. Illinois State Board of Elections, 146 S. Ct. 513,

519–20 (2026) (holding that candidates have standing to challenge

“the rules that govern the counting of votes in [their] election[s]” be-

cause they “are not mere bystanders in their own elections” (quota-

tion omitted)); Diamond Alternative Energy, LLC v. EPA, 606 U.S.

100, 110 (2025) (“To demonstrate standing, . . . plaintiffs must show

that they . . . are not mere bystanders.”); Hollingsworth v. Perry, 570

U.S. 693, 707 (2013) (“Article III standing ‘is not to be placed in the

hands of “concerned bystanders”’” (quoting Diamond v. Charles,

476 U.S. 54, 62 (1986))).

plaintiffs.”51 That is a modest proposal compared to the birth-

right-for-billions bestowed by the majority.

At bottom, I do not see how the majority’s class action ac-

cords with the proper understanding of our role. “[C]lass ac-

tion or not,” Article III stays the same.52 And under Article III,

“[t]he Judiciary’s role is limited ‘to provid[ing] relief to claim-

ants . . . who have suffered, or will imminently suffer, actual

harm.”53 Either way, it does not countenance relief to those

who may, only after the passage of a few decades, suffer harm.

Next, asylum. As amended in the Illegal Immigration Re-

form and Immigrant Responsibility Act of 1996, the asylum

statute makes clear that the DHS Secretary or the Attorney

General “may grant” or deny “asylum” in that official’s discre-

tion.54 And of course, “because the President is the Executive

Branch,” the discretion ultimately rests with him.55 The

Wal-Mart, 564 U.S. at 342.

TransUnion, 594 U.S. at 431.

Bouaphakeo, 577 U.S. at 466 (Roberts, C.J., concurring) (quoting

Lewis v. Casey, 518 U.S. 343, 349 (1996)).

IIRIRA, § 604(a), 110 Stat. 3009–690–3009–691 (1996); 8 U.S.C.

§ 1158(b)(1)(A); see also INS v. Aguirre-Aguirre, 526 U.S. 415, 420

(1999).

Secretary of Labor v. KC Transport, Inc., No. 22-1071, 2026 WL

1042075, at *24 (D.C. Cir. 2026) (Walker, J., dissenting); see also

Trump v. United States, 603 U.S. 593, 610 (2024); Myers v. United

States, 272 U.S. 52, 133 (1926) (executive officials serve only as the

President’s “alter ego[s]”); Kendall v. United States ex rel. Stokes,

37 U.S. (12 Pet.) 524, 610 (1838) (explaining that “the discharge” of

discretionary duties by “officers in the executive department . . . is

majority does not dispute this.56 Instead, it relies on three other

theories offered by the plaintiffs: (A) The plaintiffs have a right

to file their asylum applications; (B) the plaintiffs have a right

to due consideration of their asylum applications; and (C) the

Executive’s exercise of discretion directly contravenes Con-

gress’s provision for additional asylum restrictions to be made

only by regulation. All three fail.

I start with the main theory the majority and the plaintiffs

press.57 Pointing “to the plain text of Section 1158(a)(1),” they

argue the plaintiffs have a “right to apply for asylum.”58 I do

not think that is the best way to interpret the text. And even if

it were, the plaintiffs’ claim would still fail.

Even if § 1158(a)(1) conferred a “right” to apply, I do not

think we should read it as conferring a right to file frivolous or

futile applications.

Our court has already rejected that reading — twice. In

Huisha-Huisha v. Mayorkas, we explained that “if the asylum

decision has already been made,” then “the statutorily man-

dated procedures that aliens use to apply for asylum . . . would

under the direction of the President”); Marbury v. Madison, 5 U.S.

(1 Cranch) 137, 165–66 (1803).

Maj. Op. 31–32 & n.2.

See Maj. Op. 29.

Maj. Op. 30; see also 8 U.S.C. § 1158(a)(1) (“Any alien who is

physically present in the United States or who arrives in the United

States . . . may apply for asylum . . . .”).

be futile.”59 Because of that, we held, the Executive could fore-

close those procedures. And the stay panel in this case also

held that the Executive could likely foreclose the asylum pro-

cedures as “futile” under the logic of Huisha-Huisha.60

That makes sense. Background principles of law show

that the right to raise a claim doesn’t include the right to raise

a frivolous claim. Under the Federal Rules of Civil Procedure,

for instance, plaintiffs may file complaints, other pleadings,

and motions. But there’s no right to file frivolous complaints,

pleadings, and motions.61 The rule for civil appeals is similar.

“[A]ny party” “may . . . file[]” a “notice of appeal” within a

certain number of days “after entry of the judgment.”62 But if

the “appeal is frivolous,” the appellant may suffer penalties.63

So too with criminal appeals. Defendants may appeal a con-

viction or sentence.64 And when they do, they generally have

a right to counsel.65 But there is no “right to bring a frivolous

appeal,” nor “concomitantly,” to have “counsel for bringing a

frivolous appeal.”66 Simply put, the rights to a criminal appeal

27 F.4th 718, 731 (D.C. Cir. 2022).

RAICES, supra, at 37 (Millett, J., concurring); see also id. at 55

(Katsas, J., concurring in part and dissenting in part).

Fed. R. Civ. P. 11(b)(2).

Fed. R. App. P. 4(a)(1)(B); see also id. 4(a)(1)(A).

Id. 38.

E.g., 18 U.S.C. § 3742(a) (“A defendant may file a notice of appeal

in the district court for review of an otherwise final sentence . . . .”).

See Halbert v. Michigan, 545 U.S. 605 (2005); Douglas v. Cali-

fornia, 372 U.S. 353 (1963).

Smith v. Robbins, 528 U.S. 259, 278 (2000).

and counsel during that appeal do “not include a right to present

frivolous arguments to the court.”67

The asylum statute’s text captures these background rules.

Section 1158(d)(4) requires the Attorney General to notify al-

iens applying for asylum “of the consequences . . . of know-

ingly filing a frivolous application for asylum.” And para-

graph (6) of that subsection — entitled “Frivolous applica-

tions”68 — prescribes consequences for aliens who have

“knowingly made a frivolous application.”69 So § 1158 seems

to assume individuals lack authority to file frivolous applica-

tions. And so it prescribes punishment for doing so (at least

with a certain mens rea) — just like the Federal Rules of Civil

Procedure do for submitting frivolous pleadings.70

Even if the asylum statute doesn’t by itself preclude the

plaintiffs’ right-to-apply theory, that theory relies on a right “to

nothing but procedure.”71 So it is “inadequate even to support

standing.”72

Id. at 272; see also Griffin v. Illinois, 351 U.S. 12, 24 (1956)

(Frankfurter, J., concurring in the judgment) (granting the right to

counsel in criminal appeals but emphasizing that a State may “protect

itself so that frivolous appeals are not subsidized and public moneys

not needlessly spent”).

IIRIRA, § 604(a), 110 Stat. 3009–694.

8 U.S.C. § 1158(d)(6).

See Fed. R. Civ. P. 11(b), (c).

Town of Castle Rock, Colorado v. Gonzales, 545 U.S. 748, 764

(2005).

Id.

The deprivation of the procedural “right” to apply is not

itself a cognizable Article III injury. Because Congress cannot

“enact an injury into existence,” even if we were to read the

statute to grant a right to apply, the plaintiffs would still need

to prove that the harm of being deprived of the right to apply is

the type of “harm traditionally recognized as providing a basis

for a lawsuit in American courts.”73 But I am not aware of any

traditional claim of tortious interference with futile filings.

To be sure, “‘procedural rights’ are special.”74 So some

procedural-standing cases recognize standing for the depriva-

tion of procedural rights. But the Court’s procedural-standing

cases require a plaintiff to show he has “been accorded a pro-

cedural right to protect his concrete interests.”75 Only then can

he “assert that right without meeting all the normal standards

for redressability and immediacy.”76

Even then, procedural rights aren’t amulets one waves

around to make Article III disappear. All that happens in pro-

cedural-standing cases is that the normal standards get

TransUnion, 594 U.S. at 424, 426 (quotation omitted).

Lujan, 504 U.S. at 572 n.7.

Id. (emphasis added).

Id. By “immediacy,” Lujan is best read to mean imminence. See

id. (explaining that an individual “has standing to challenge” an

“agency’s failure to prepare an environmental impact statement” be-

fore licensing a “dam,” even if “the dam will not be completed for

many years”). But in these contexts, imminence and causation may

overlap. See Alliance for Hippocratic Medicine, 602 U.S. at 385 n.2.

And of course, redressability and causation are often — though not

always — “flip sides of the same coin.” Id. at 380–81 & n.1; see also

Murthy v. Missouri, 603 U.S. 43, 73–74 & n.11 (2024); United States

v. Texas, 599 U.S. 670, 676 (2023).

“somewhat relaxed.”77 Or as the Court put it recently, “we tol-

erate uncertainty over whether observing certain procedures

would have led to . . . a different substantive outcome.”78

But here, to find standing, we would need to “tolerate”

more than mere “uncertainty over whether observing certain

procedures would” change the “substantive outcome.”79 We

would need to find standing despite complete certainty that ob-

serving the procedures would change nothing. The substantive

result is pre-determined because the Executive has denied all

the applications. So on even the most “relaxed” approach to

causation and redressability, the plaintiffs lack standing to seek

relief permitting them to file applications that have already

been denied.80

That brings us to the second theory. The majority says the

Executive cannot “categorical[ly]” and “ex ante” deny asylum

without “consideration of what the would-be applicant may

face if removed.”81 The logic of this position seems to be that

the alien is entitled to meaningful consideration of his individ-

ual application.

One might wonder what source of law permits us to sub-

ject the Executive to this novel “meaningful consideration”

Gutierrez v. Saenz, 606 U.S. 305, 321 (2025) (Barrett, J., concur-

ring in part and concurring in the judgment); Lujan, 504 U.S. at 572

n.7.

Department of Education v. Brown, 600 U.S. 551, 565 (2023).

Id.

Gutierrez, 606 U.S. at 321 (Barrett, J., concurring in part and dis-

senting in part).

Maj. Op. 32.

requirement in exercising his discretion over asylum applica-

tions. The majority points to § 1158(d), which provides,

among other things, that “[t]he Attorney General shall establish

a procedure for the consideration of asylum applications.”82

Nothing in § 1158(d) suggests we can glean some meta-

principle about meaningful, individualized consideration out of

its bare text. Section 1158(d) contains anodyne provisions, like

that “[t]he Attorney General may require applicants to submit

fingerprints and a photograph”83 or that “[a]n applicant for asy-

lum is not entitled to employment authorization.”84 And if we

were to glean a principle out of § 1158(d)’s discrete provisions,

§ 1158(d)(7) would seem to suggest the opposite of what the

majority proposes: “Nothing in this subsection shall be con-

strued to create any substantive or procedural right or ben-

efit that is legally enforceable by any party against the

United States or its agencies or officers or any other person.”85

The majority also points to the expedited-removal provi-

sion, § 1225(b), which it understands to guarantee procedures

for considering asylum applications for those otherwise subject

to expedited removal. Section 1225(b) says that an immigra-

tion officer in an expedited-removal proceeding “shall refer”

an alien who “indicates either an intention to apply for asy-

lum . . . or a fear of persecution . . . for an interview by an asy-

lum officer.”86 Then, for the aliens referred, “[a]n asylum of-

ficer shall conduct interviews.”87 “If the officer determines at

8 U.S.C. § 1158(d)(1).

Id.

Id. § 1158(d)(2).

Id. § 1158(d)(7) (emphases added).

Id. § 1225(b)(1)(A)(ii).

Id. § 1225(b)(1)(B)(i).

the time of the interview that an alien has a credible fear of

persecution . . . , the alien shall be detained for further consid-

eration of the application for asylum.”88 Moreover, § 1225(b)

defines “credible fear of persecution” by reference to “eligibil-

ity for asylum under” the asylum statute.89 What an oddity it

would be, the majority might suggest, that aliens initially fun-

neled into expedited-removal proceedings are entitled to indi-

vidualized consideration of asylum claims, but other aliens are

not.

I find much about that argument appealing, but for three

reasons, I am not persuaded.

First, I don’t think my reading creates much of an oddity

because the “credible fear” interviews in § 1225(b) serve more

purposes than protecting asylum. Those interviews also ensure

that individuals subject to § 1225(b) get a chance to press with-

holding-of-removal claims.90 And today this court unani-

mously holds that those claims must remain open. So on my

reading (like the majority’s), § 1225(b) credible-fear inter-

views still matter.

Second, even if you think the provisions in § 1225(b) re-

ally are about only asylum, then an oddity remains no matter

what. The majority does not contest that the President may

deny all asylum applications. If a President decides to do that,

all § 1225(b) does is confer upon individuals the special privi-

lege of being forced to languish in a detention facility while

Id. § 1225(b)(1)(B)(ii).

Id. § 1225(b)(1)(B)(v).

See 8 C.F.R. § 208.30(e)(2); see also DHS v. Thuraissigiam, 591

U.S. 103, 110 n.5 (2020); cf. Aguirre-Aguirre, 526 U.S. at 419 (not-

ing that withholding and asylum “serve similar purposes”).

their individual asylum applications get inevitably denied.91

That is pretty odd.

To be sure, the Congress that wrote § 1225(b) may well

have expected that the Executive would usually-or-always be

amenable to granting some asylum applications. And that pre-

diction has almost always been correct. But by giving the Ex-

ecutive discretion to deny asylum claims, Congress chose not

to require what it predicted.92 And when the Executive exer-

cises that discretion in a way Congress may not have predicted,

the majority’s interpretation creates quite the oddity — pro-

longed detention while detainees seek relief that will never be

granted.

In short, the expedited-removal scheme creates oddities ei-

ther way, whether under my interpretation or under the major-

ity’s.

Third and finally, whatever oddity remains isn’t that sug-

gestive. As noted, the oddity will emerge only in unusual cir-

cumstances. It emerges only when Presidents categorically

foreclose asylum. So even granting for the moment that there

is an odd discrepancy between the asylum statute (§ 1158) and

the expedited-removal provisions (§ 1225(b)) when the Exec-

utive categorically forecloses asylum, it doesn’t bear much

weight. Sections 1158 and 1225(b) almost never give rise to

that discrepancy. Yes, it has arisen here. But a rare oddity

arising from the Executive’s discretion in one case doesn’t

mean we must subject the Executive’s discretion to novel re-

strictions in all cases — especially when an oddity arises under

either interpretation of the statute.

See 8 U.S.C. § 1225(b)(1)(B)(iii)(IV).

Thuraissigiam, 591 U.S. at 110 n.4 (“even if an applicant” is eligi-

ble, “an actual grant of asylum is discretionary”).

Now for the third and final theory the majority proffers.

The majority suggests that the Executive’s categorical, ex ante

denial of asylum, and accompanying refusal to take applica-

tions, violates two discrete provisions of the INA: (1) 8 U.S.C.

§ 1158(b)(2)(C) and (2) 8 U.S.C. § 1158(d)(5)(B). That is

wrong.

Section 1158(b)(2)(C) allows the Attorney General to pre-

scribe additional conditions on asylum eligibility by regulation.

The majority argues this undermines the Executive’s categori-

cal and ex ante exercise of his asylum discretion. I disagree.

That’s because eligibility is just Step 1. At Step 2, the Ex-

ecutive gets to decide whether to grant or deny asylum to who-

ever is eligible according to his discretion. As the Supreme

Court has explained, “even if an applicant” is eligible for asy-

lum, “an actual grant of asylum is discretionary.”93 Put another

way, eligibility “does no more than establish that the alien may

be granted asylum in the discretion of” the Executive Branch.94

So any restriction on the Executive’s power to create rules con-

cerning who is eligible for asylum (the Step 1 inquiry) says

nothing about the Executive’s discretion to decide whether to

grant asylum to anyone (the Step 2 inquiry).

Id.

INS v. Cardozo-Fonseca, 480 U.S. 421, 428 n.5 (1987) (cleaned

up).

The majority also points to § 1158(d)(5)(B), which author-

izes “[t]he Attorney General” to “provide by regulation for any

other conditions or limitations on the consideration of an appli-

cation for asylum.” But the President’s decision to bar the fil-

ing of applications by Proclamation doesn’t contravene that

provision. Section 1158(d)(5)(B) kicks in only after applica-

tions have been filed. It says nothing about the President’s abil-

ity to foreclose applications from the get-go.95

Start with how § 1158(d) operates. Paragraph (1) provides

that “[t]he Attorney General shall establish a procedure for the

consideration of asylum applications filed under” § 1158(a).96

Then, paragraph (5) deals with what procedures should govern

the process for considering those applications that have been

filed. Subparagraph (A) spells some out: “The procedure es-

tablished under paragraph (1) shall provide,” for example, “that

in the absence of exceptional circumstances, the initial inter-

view or hearing on the asylum application shall commence not

later than 45 days after the date an application is filed.”97 Sub-

paragraph (B), then, authorizes the Attorney General to provide

for additional measures by regulation.

That shows that the Proclamation and Guidance, by fore-

closing acceptance of applications in the first place, do not con-

travene § 1158(d)(5)(B). The procedures related to considera-

tion of applications are inapplicable if there are no asylum ap-

plications to consider. If no applications have been filed, for

The majority also points to two regulations. But they also depend

on applications having been filed. See 8 C.F.R. § 208.9(a); id.

§ 1003.10(b).

8 U.S.C. § 1158(d)(1).

Id. § 1158(d)(5)(A)(ii).

example, there is no “initial interview or hearing on the” (non-

existent) “asylum application” to be had within “45 days after

the date” that the (non-existent) “application” was “filed.”98

Nor is there any “final administrative adjudication of the” (non-

existent) “asylum application” that must take place “within 180

days after the date” the (non-existent) “application” was

“filed.”99 So, sure, (d)(5)(B) might impliedly restrict the Pres-

ident’s ability by proclamation to provide new rules governing

the consideration of the applications that have already been

filed. Maybe the President, for instance, cannot provide by

proclamation that all hearings on an asylum application must

take place in English. But (d)(5)(B) says nothing about

whether the President needs to accept applications in the first

place.

* * *

“A major objective of IIRIRA was to protect the Execu-

tive’s discretion from undue interference by the courts.”100

“Whether or not” an individual is “granted asylum is a matter

which Congress has left” to the Executive’s discretion.101

We should not interfere with that discretion. “[A]n influx

of meritless” asylum claims can “strain detention capacity and

degrade detention conditions; cause the release of many inad-

missible aliens into States and localities that must shoulder the

resulting costs; divert Department resources from protecting

Id.

Id. § 1158(d)(5)(A)(iii).

100

Thuraissigiam, 591 U.S. at 112 (cleaned up).

101

Cardozo-Fonseca, 480 U.S. at 450.

the border; and aggravate the humanitarian crisis created by

human smugglers.”102

Our court has already said twice that the Executive — and

our country — need not suffer an influx of frivolous asylum

claims when the Executive has already exercised his discretion

to deny all of them. We were right both times.

III

Finally, I turn to the availability of class-wide injunctive

relief.

For reasons I will explain below, the President has an in-

herent, generalized authority to expel aliens. In Youngstown

terms, the President’s authority to expel aliens is a Category 2

authority: The President may expel aliens without statutory au-

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