Make The Road New York v. Chad F. Wolf

United States Court of Appeals

FOR THE DISTRICT OF COLUMBIA CIRCUIT

Argued March 6, 2020 Decided June 23, 2020

No. 19-5298

MAKE THE ROAD NEW YORK, ET AL.,

APPELLEES

v.

CHAD F. WOLF, ACTING SECRETARY OF THE DEPARTMENT OF

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

APPELLANTS

Appeal from the United States District Court

for the District of Columbia

(No. 1:19-cv-02369)

Scott G. Stewart, Deputy Assistant Attorney General, U.S.

Department of Justice, argued the cause for appellants. With

him on the briefs was Erez Reuveni, Assistant Director, U.S.

Department of Justice.

Michael M. Hethmon was on the brief for amicus curiae

Immigration Reform Law Institute in support of appellants.

Anand Balakrishnan argued the cause for appellees. With

him on the brief were Omar C. Jadwat, Michael Tan, Celso

Perez, Trina Realmuto, Kristin Macleod-Ball, Karolina J.

Walters, Stephen B. Kang, Julie Veroff, Arthur B. Spitzer, Scott

2

Michelman, Jonathan K. Youngwood, Susannah S. Geltman,

Joshua Polster, and Adrienne V. Baxley.

Xavier Becerra, Attorney General, Office of the Attorney

General for the State of California, Antonette Benita Cordero,

Laura Faer, Vilma Palma-Solana, Anthony Seferian, Deputy

Attorneys General, Office of the Attorney General for the State

of California, William Tong, Attorney General, Office of the

Attorney General for the State of Connecticut, Clare Kindall,

Solicitor General for the State of Connecticut, Clare E.

Connors, Attorney General, Office of the Attorney General for

the State of Hawaii, Kimberly Tsumoto Guidry, Solicitor

General for the State of Hawaii, Aaron M. Frey, Attorney

General, Office of the Attorney General for the State of Maine,

Laura E. Jensen, Assistant Attorney General, Office of the

Attorney General for the State of Maine, Philip J. Weiser,

Attorney General, Office of the Attorney General for the State

of Colorado, Eric R. Olson, Solicitor General for the State of

Colorado, Kathleen Jennings, Attorney General, Office of the

Attorney General for the State of Delaware, Christian Douglas

Wright, Director of Impact Litigation, Office of the Attorney

General for the State of Delaware, Kwame Raoul, Attorney

General, Office of the Attorney General for the State of Illinois,

Sarah A. Hunger, Deputy Solicitor General for the State of

Illinois, Maura Healey, Attorney General, Office of the

Attorney General for the Commonwealth of Massachusetts,

Robert E. Toone, Assistant Attorney General, Office of the

Attorney General for the Commonwealth of Massachusetts,

Keith Ellison, Attorney General, Office of the Attorney

General for the State of Minnesota, Kathryn Iverson Landrum,

Assistant Attorney General, Office of the Attorney General for

the State of Minnesota, Gurbir S. Grewal, Attorney General,

Office of the Attorney General for the State of New Jersey,

Glenn J. Moramarco, Assistant Attorney General, Office of the

Attorney General for the State of New Jersey, Brian E. Frosh,

3

Attorney General, Office of the Attorney General for the State

of Maryland, Adam D. Snyder, Deputy Chief of Litigation,

Office of the Attorney General for the State of Maryland, Dana

Nessel, Attorney General, Office of the Attorney General for

the State of Michigan, Fadwa A. Hammoud, Solicitor General

for the State of Michigan, Aaron D. Ford, Attorney General,

Office of the Attorney General for the State of Nevada, Heidi

Parry Stern, Solicitor General for the State of Nevada, Letitia

James, Attorney General, Office of the Attorney General for

the State of New York, Steven C. Wu, Deputy Solicitor General

for the State of New York, Josh Shapiro, Attorney General,

Office of the Attorney General for the Commonwealth of

Pennsylvania, Aimee D. Thomson, Deputy Attorney General,

Office of the Attorney General for the Commonwealth of

Pennsylvania, Thomas J. Donovan, Jr., Attorney General,

Office of the Attorney General for the State of Vermont,

Benjamin D. Battles, Solicitor General for the State of

Vermont, Hector Balderas, Attorney General, Office of the

Attorney General for the State of New Mexico, Tania Maestas,

Chief Deputy Attorney General, Brian E. McMath, Assistant

Attorney General, Office of the Attorney General for the State

of New Mexico, Ellen F. Rosenblum, Attorney General, Office

of the Attorney General for the State of Oregon, Jona

Maukonen, Assistant Attorney General, Office of the Attorney

General for the State of Oregon, Peter F. Neronha, Attorney

General, Office of the Attorney General for the State of Rhode

Island, Adam D. Roach, Special Assistant Attorney General,

Office of the Attorney General for the State of Rhode Island,

Robert W. Ferguson, Attorney General, Office of the Attorney

General for the State of Washington, Noah Guzzo Purcell,

Solicitor General for the State of Washington, Mark R.

Herring, Attorney General, Office of the Attorney General for

the Commonwealth of Virginia, Toby J. Heytens, Solicitor

General for the Commonwealth of Virginia, Karl A. Racine,

Attorney General, Office of the Attorney General for the

4

District of Columbia, and Loren L. AliKhan, Solicitor General

for the District of Columbia, were on the brief for amici curiae

The State of California, et al. in support of appellees.

Richard Caldarone, Paul J. Nathanson, and Kenneth L.

Wainstein were on the brief for amici curiae The Tahirih

Justice Center, et al. in support of appellees.

William J. Trunk and Megan D. Browder were on the brief

for amici curiae Former Homeland Security and Immigration

Officials in support of appellees.

Before: MILLETT and RAO, Circuit Judges, and EDWARDS,

Senior Circuit Judge.

Opinion for the Court filed by Circuit Judge MILLETT.

Dissenting opinion filed by Circuit Judge RAO.

MILLETT, Circuit Judge: Federal law commits to the “sole

and unreviewable discretion” of the Secretary of Homeland

Security the decision whether to subject certain individuals

present in the United States without documentation to

“expedited removal.” 8 U.S.C. § 1225(b)(1)(A)(iii)(I). In July

2019, the Secretary decided to expand the reach of the

expedited removal process to its statutory limit, sweeping in all

individuals without documentation who have resided in the

United States for less than two years.

Three organizations whose members are covered by that

expansion (“Associations”) filed suit, contending that the

Secretary’s decision violated the Administrative Procedure Act

(“APA”), 5 U.S.C. §§ 551 et seq., the Immigration and

Nationality Act (“INA”), 8 U.S.C. §§ 1225(a)–(b), 1362, the

Due Process Clause of the Fifth Amendment, U.S. CONST.

5

Amend. V, and the Suspension Clause, U.S. CONST., Art. I, § 9,

cl. 2. The district court granted a preliminary injunction

against the expansion based only on the APA claims, leaving

the INA and constitutional claims unaddressed.

We hold that the district court properly exercised

jurisdiction over the Associations’ case. But because Congress

committed the judgment whether to expand expedited removal

to the Secretary’s “sole and unreviewable discretion,” 8 U.S.C.

§ 1225(b)(1)(A)(iii)(I), the Secretary’s decision is not subject

to review under the APA’s standards for agency

decisionmaking. Nor is it subject to the APA’s notice-and-

comment rulemaking requirements. For those reasons, we

reverse the district court’s grant of a preliminary injunction and

remand for further proceedings consistent with this decision.

I

A

1

Congress created the process of “expedited removal” as

part of the Illegal Immigration Reform and Immigrant

Responsibility Act of 1996 (“IIRIRA”), Pub. L. No. 104-208,

§ 302, 110 Stat. 3009-546, 3009-579 (1996) (codified at 8

U.S.C. §§ 1225, 1252). Before IIRIRA, an individual in the

United States without proper documentation could be

considered “deportable,” 8 U.S.C. § 1251(a) (1995), if, among

other things, that person had “entered the United States without

inspection or at any time or place other than as designated by

the Attorney General[,]” see id. § 1251(a)(1)(B) (1995). A

determination of deportability entailed a hearing before a

special inquiry officer in which the individual had the right to

be represented, to examine the government’s evidence, and to

present evidence on his or her behalf. See id. § 1252(b) (1995).

6

An officer’s determination that an individual was deportable

was subject to judicial review. See id. § 1105a (1995).

Congress adopted IIRIRA’s expedited removal scheme

to substantially shorten and speed up the removal process.

Expedited removal may be applied to those “who [are] arriving

in the United States[,]” 8 U.S.C. § 1225(b)(1)(A)(i), as well as

to individuals who are not admitted or paroled and who have

“not affirmatively shown” to the immigration officer’s

satisfaction that they have been “physically present in the

United States continuously for the 2-year period immediately

prior to the date of the determination of inadmissibility[,]” id.

§ 1225(b)(1)(A)(iii)(II). IIRIRA leaves it to the Secretary to

designate which groups of individuals who fall within the two-

year statutory range will be subject to expedited removal, in a

provision we shall refer to as the “Designation Provision.” See

id. § 1225(b)(1)(A)(iii)(I) (“The Attorney General may apply

[expedited removal] to any or all aliens described in

[§ 1225(b)(1)(A)(iii)(II)].”) (emphasis added). Any such

decision about the scope of expedited removal’s operation

within statutory limits is expressly committed to the

Secretary’s “sole and unreviewable discretion,” and the

Secretary may modify such a decision “at any time.” Id.1

Expedited removal lives up to its name. Under IIRIRA, an

immigration officer may determine that an individual is

inadmissible because she does not have a valid entry document

or other suitable travel document, or because she has obtained

a visa through misrepresentation. See 8 U.S.C.

§ 1225(b)(1)(A)(i); see also id. § 1182(a)(6)(C), (7). If that

individual falls within the class of persons subject to expedited

1

IIRIRA confers this authority on the Attorney General, but that

power has since been transferred to the Secretary of Homeland

Security. See 8 U.S.C. § 1103(a); see also 6 U.S.C. § 251; Clark v.

Martinez, 543 U.S. 371, 374 n.1 (2005).

7

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. See 8 C.F.R.

§ 235.3(b)(7).

The process is scarcely more involved for individuals who

assert an intention to apply for asylum or a fear of persecution.

See 8 U.S.C. § 1225(b)(1)(A). Those persons are referred for

an interview with an immigration officer who decides whether

they have a “credible fear of persecution[.]” Id.

§ 1225(b)(1)(A)(ii), (B)(ii). The interviewing officer prepares

a written record of the credible-fear determination, including

the facts relied upon and the officer’s analysis. See id.

§ 1225(b)(1)(B)(iii)(II). If the officer finds no credible fear of

persecution, the individual’s only recourse is review by an

immigration judge. See id. § 1225(b)(1)(B)(iii)(III). That

highly expedited review is meant to conclude within 24 hours.

Id. The immigration judge’s review is final—no administrative

or judicial review follows. See id. § 1225(b)(1)(C); id.

§ 1252(a)(2)(A)(iii).

Because of the Executive Branch’s past concerns about

expedited removal’s administrability and accuracy in

application, the Secretary had long chosen to apply those

abrupt procedures only to narrow classes of individuals. See

Inspection and Expedited Removal of Aliens, 62 Fed. Reg.

10,312, 10,313 (March 6, 1997). In particular, the government

has expressed concerns that the “application of the expedited

removal provisions” to individuals “already in the United

States will involve more complex determinations of fact and

will be more difficult to manage[.]” Id. For that reason, the

Secretary initially opted to apply expedited removal only to

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“arriving” individuals, defined as those “who seek[] admission

to or transit through the United States * * * at a port-of-entry,”

or who are “interdicted in international or United States waters

and brought into the United States by any means[.]” Id. at

10,313, 10,330; see also id. at 10,313 (rejecting one

commenter’s suggestion that the definition of “arriving alien”

“be expanded to include aliens who have been present for less

than 24 hours” because of the “difficulty not only in

establishing that the alien entered without inspection, but also

in determining the exact time of the alien’s arrival”).

In 2002, the Secretary expanded expedited removal to all

unadmitted individuals who arrived by sea and who had been

continuously present in the United States for less than two

years. See Notice Designating Aliens Subject to Expedited

Removal Under Section 235(b)(1)(A)(iii) of the Immigration

and Nationality Act, 67 Fed. Reg. 68,924, 68,925–68,926

(Nov. 13, 2002).

In 2004, the Secretary again expanded expedited removal

to include all individuals, not paroled or admitted, who were

encountered within fourteen days of entry and within 100 air

miles of any United States international border. See

Designating Aliens for Expedited Removal, 69 Fed. Reg.

48,877, 48,879 (Aug. 11, 2004). With the exception of

expedited removal’s expansion to Cuban nationals, the 2004

designation remained in place for the next fifteen years. See

Designating Aliens for Expedited Removal, 84 Fed. Reg.

35,409 (July 23, 2019); see also Eliminating Exception to

Expedited Removal Authority for Cuban Nationals

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

Reg. 4902, 4904 (Jan. 17, 2017).

9

2

On January 25, 2017, President Trump directed the then-

Secretary of Homeland Security John Kelly to expand

expedited removal to its full statutory limits. See Exec. Order

No. 13,767, Border Security and Immigration Enforcement

Improvements, 82 Fed. Reg. 8793, 8796 (Jan. 30, 2017).

That directive, though, remained unimplemented for the

next two and a half years. Not until July 2019 did the then-

Acting Secretary Kevin McAleenan publish an announcement

in the Federal Register expanding expedited removal to its full

statutory limits so that it would reach all covered individuals

who had been in the United States for less than two continuous

years. See 84 Fed. Reg. at 35,413–35,414. The Secretary cited

as the basis for his decision the “increasing numbers” of

individuals who “have been detained after being apprehended

within the interior of the United States[.]” Id. at 35,411. The

Secretary also emphasized how fast such expedited removals

occur—on average, within 11.4 days. Id. Like prior

expansions, the July 2019 notice—which we will refer to as the

“Expansion Designation”—went into immediate effect. Id. at

35,413.

3

IIRIRA also adopted a web of jurisdictional provisions

governing review of both the Secretary’s designation decisions

and of removals. Three of them are at issue here.

First, 8 U.S.C. § 1252(a)(2)(A) is the jurisdictional

provision that governs the expedited removal program. It

provides that “no court shall have jurisdiction to review”

matters relating to expedited removal, including “procedures

and policies adopted by the [Secretary] to implement the

[expedited removal] provisions of section 1225(b)(1)[.]” 8

10

U.S.C. § 1252(a)(2)(A)(iv); see also id. § 1252(a)(2)(A)(i)–

(iii).

Second, Subsection 1252(a)(2)(A)’s bar on judicial review

of the expedited removal process is subject to enumerated

exceptions. See 8 U.S.C. § 1252(a)(2)(A)(i, ii, & iv); see also

id. § 1252(e). As relevant here, Congress expressly provided

that an action may be “instituted in the United States District

Court for the District of Columbia” to review whether “any

regulation issued to implement [Section 1225(b)] is

constitutional,” and whether “a regulation, or a written policy

directive, written policy guideline, or written procedure issued

by * * * [the Secretary] to implement” Section 1225(b) “is

otherwise in violation of law.” Id. § 1252(e)(3)(A).

Third, Subsection 1252(a)(2)(B) bars judicial review of

“any judgment regarding the granting of relief” under various

statutory provisions involving “[d]enials of discretionary

relief,” and “any other decision or action of the * * *

Secretary * * * the authority for which is specified under this

subchapter to be in the discretion of the * * * Secretary,” other

than a grant of asylum. See 8 U.S.C. § 1252(a)(2)(B). That bar

on judicial review does not apply to “constitutional claims or

questions of law raised upon a petition for review filed with an

appropriate court of appeals[.]” Id. § 1252(a)(2)(D).

B

In August 2019, shortly after the Secretary issued the

Expansion Designation, several organizations filed suit on

behalf of their individual members against the Secretary, the

Attorney General, and three other federal officials within the

Department of Homeland Security. The Associations are Make

the Road New York, La Union Del Pueblo Entero, and

WeCount!. Each one is a membership organization that

advocates on behalf of its members in immigrant communities

11

and that includes among its members individuals directly

covered by the new expedited removal designation.

The Associations asserted multiple claims, including

statutory claims under the APA and the INA, along with two

constitutional claims. Specifically, the Associations contend

that the Secretary violated the APA by failing both (i) to

engage in reasoned decisionmaking, and (ii) to promulgate the

Expansion Designation through notice-and-comment

rulemaking. The Associations also alleged violations of (i) the

INA, 8 U.S.C. §§ 1225(a)–(b), 1362, contending that the

expansion impermissibly deprived individuals of a meaningful

pre-removal process and restricted the participation of counsel;

(ii) the Due Process Clause of the Fifth Amendment, U.S.

CONST. Amend. V, for failure to provide meaningful process

prior to removal; and (iii) the Suspension Clause, U.S. CONST.

Art. I, § 9, cl. 2, because the designation deprived individuals

of the right to seek judicial review of a removal order. The

Associations requested, among other things, a declaration that

the Expansion Designation was contrary to law, vacatur of the

Expansion Designation, and an injunction barring its

application to the expanded group of individuals. J.A. 38–39.

Because the Expansion Designation took effect

immediately, the Associations promptly moved for a

preliminary injunction. After conducting a hearing, the district

court granted a preliminary injunction, determining that the

Associations were likely to succeed in establishing jurisdiction

and on the merits of their APA claims, and that the balance of

interests favored the Associations. Given those rulings, the

court found it unnecessary at that time to address the

Associations’ INA and constitutional claims.2

2

Because the district court only addressed the APA notice-and-

comment rulemaking and reasoned decisionmaking claims, see

12

Regarding jurisdiction, the district court held that it had

jurisdiction to consider the claims under 28 U.S.C. § 1331, and

that the jurisdiction-stripping provisions of 8 U.S.C.

§ 1252(a)(2)(A) by their express terms do not apply to

constitutional and statutory challenges to regulations, written

policy directives, and written policy guidelines issued by the

Secretary to implement expedited removal. See Make the

Road, 405 F. Supp. 3d at 28 (“[T]his court has little doubt that

[the Associations’] APA claims assailing DHS’s July 23rd

Notice qualify as challenges to ‘a regulation, or a written policy

directive, written policy guideline, or written procedure issued

by or under the authority of the Attorney General to implement’

section 1225(b).”) (quoting 8 U.S.C. § 1252(e)(3)(A)(ii)).

The district court also determined that the Associations

had standing to litigate on behalf of their members who are

subject to the Expansion Designation, pointing to three

declarations from the Associations’ members stating that they

were subject to and adversely affected by the new designation.

The court further found that depriving those individuals of the

more robust procedural protections afforded in regular removal

proceedings was a “recognized harm[.]” Make the Road, 405

F. Supp. 3d at 33. Nor was there anything “speculative about

a threatened injury if the one who makes the threat

Make the Road New York v. McAleenan, 405 F. Supp. 3d 1, 25 n.12

(D.D.C. 2019), and the parties did not address any other claims in

their briefing to this court, we do not address the pending

constitutional and INA claims for the first time on appeal. See

Liberty Property Trust v. Republic Properties Corp., 577 F.3d 335,

341 (D.C. Cir. 2009) (“Although we * * * have the discretion to

consider questions of law that were not passed upon by the District

Court, this court’s normal rule is to avoid such consideration.”)

(formatting modified); see also Washington Alliance of Tech.

Workers v. United States Dep’t of Homeland Sec., 892 F.3d 332, 346

(D.C. Cir. 2018) (similar).

13

simultaneously and unequivocally states that he intends to

inflict the threatened harm as soon as possible and without

further warning” on such individuals. Id. at 34.

The court next found that the APA provided a cause of

action to challenge the Expansion Designation, even though the

decision was statutorily committed to the Secretary’s “sole and

unreviewable discretion[.]” See Make the Road, 405 F. Supp.

3d at 39–43. In the district court’s view, it was “more likely

that Congress intended to confer [on] the agency the ultimate

authority to make the decision of who will be subject to

expedited removal under the statute, which is not the same

thing as giving the agency sole discretion to determine the

manner in which that decision will be made.” Id. at 39. In the

district court’s estimation, the Associations’ APA claims were

related to the process and not to the substance of the Expansion

Designation itself.

Moving to the merits, the district court concluded that the

Associations were likely to succeed on their notice-and-

comment rulemaking and arbitrary and capricious claims. The

court determined that the Expansion Designation was a

substantive rule, not a general statement of policy, and no good

cause existed to justify the failure to proceed through notice-

and-comment rulemaking. The court also ruled that the

Expansion Designation was not a product of reasoned

decisionmaking because the Secretary failed to weigh “the

considerable downsides of adopting a policy that, in many

respects, could significantly impact people’s everyday lives in

many substantial, tangible, and foreseeable ways.” Make the

Road, 405 F. Supp. 3d at 55.

Finally, the district court ruled that the balance of interests

favored issuing a preliminary injunction. The Associations’

members would be subject to irreparable harm when the

14

Expansion Designation subjected them to expedited removal.

And while the public had an interest in the efficient

administration of immigration laws, the public also “ha[d] a

significant interest in avoiding the erroneous application of a

policy that can result in the swift and largely unreviewable

deportation * * * of members of the public that have

established strong ties to their communities.” Make the Road,

405 F. Supp. 3d at 65.

Based on those determinations, the district court

preliminarily enjoined the Secretary from enforcing the

Expansion Designation against all newly covered individuals.

The Secretary filed a timely notice of appeal. See 8 U.S.C.

§ 1252(e)(3)(C). Upon the joint request of the parties, the

district court stayed further proceedings pending the

disposition of this statutorily expedited appeal. Id.

§ 1252(e)(3)(D).

II

The district court exercised federal question jurisdiction

over the APA claims under 28 U.S.C. § 1331. This court has

appellate jurisdiction under 28 U.S.C. § 1292(a)(1).

We review the issuance of a preliminary injunction for an

abuse of discretion. See, e.g., Atlas Air, Inc. v. International

Bhd. of Teamsters, 928 F.3d 1102, 1112 (D.C. Cir. 2019). The

district court’s underlying legal conclusions are reviewed de

novo, while its factual findings are reviewed for clear error. Id.

III

To obtain a preliminary injunction, the Associations must

establish that (1) they are likely to succeed on the merits of

their APA claims, (2) their members are likely to suffer

15

irreparable harm in the absence of preliminary relief, (3) the

balance of equities tips in their favor, and (4) an injunction is

in the public interest. See Winter v. Natural Res. Def. Council,

Inc., 555 U.S. 7, 20 (2008). As part of establishing a likelihood

of success on the merits, the Associations must first

demonstrate a likelihood of success in establishing jurisdiction.

See, e.g., Food & Water Watch, Inc. v. Vilsack, 808 F.3d 905,

913 (D.C. Cir. 2015).

We hold that the Associations established jurisdiction for

their APA claims. But they do not have a likelihood of success

on their APA notice-and-comment and reasoned

decisionmaking claims because the Secretary’s decision to

expand the scope of expedited removal within statutory limits

is committed to agency discretion by law.

A

On the question of jurisdiction, we decide this case against

the backdrop of “a familiar principle of statutory construction:

the presumption favoring judicial review of administrative

action.” Guerrero-Lasprilla v. Barr, 140 S. Ct. 1062, 1069

(2020) (quoting Kucana v. Holder, 558 U.S. 233, 251 (2010));

see id. (“Consider first” the presumption in favor of judicial

review.); SAS Inst., Inc. v. Iancu, 138 S. Ct. 1348, 1359 (2018)

(“[W]e begin with ‘the strong presumption in favor of judicial

review.”) (quoting Cuozzo Speed Techs., LLC v. Lee, 136 S. Ct.

2131, 2140 (2016)).3

3

See also NetCoalition v. SEC, 715 F.3d 342, 348 (D.C. Cir.

2013) (beginning analysis by “bear[ing] in mind the presumption

favoring judicial review of agency action”); El Paso Natural Gas Co.

v. United States, 632 F.3d 1272, 1276 (D.C. Cir. 2011) (“When

considering whether a statute bars judicial review, ‘[w]e begin with

the strong presumption that Congress intends judicial review of

16

That presumption means that, “when a statutory provision

‘is reasonably susceptible to divergent interpretation, we adopt

the reading that accords with traditional understandings and

basic principles: that executive determinations generally are

subject to judicial review.’” Guerrero-Lasprilla, 140 S. Ct. at

1069 (quoting Kucana, 558 U.S. at 251); see also HON. HARRY

T. EDWARDS & LINDA A. ELLIOTT, FEDERAL STANDARDS OF

REVIEW: REVIEW OF DISTRICT COURT DECISIONS AND AGENCY

ACTIONS, Part 2, Chapter XII, Section A (database updated

Feb. 2018) (“And, ‘[b]ecause the presumption favoring

interpretations of statutes to allow judicial review of

administrative action is well-settled,’ Congress is assumed to

‘legislate[] with knowledge of [it].’”) (quoting Kucana, 558

U.S. at 251–252).

That “well-settled” and “strong presumption” in favor of

judicial review is so embedded in the law that it applies even

when determining the scope of statutory provisions specifically

designed to limit judicial review. See Guerrero-Lasprilla, 140

S. Ct. at 1068; see also Kucana, 558 U.S. at 251–252;

American Clinical Lab. Ass’n v. Azar, 931 F.3d 1195, 1204

(D.C. Cir. 2019); El Paso Natural Gas Co. v. United States,

632 F.3d 1272, 1276 (D.C. Cir. 2011) (“Th[e] presumption

applies even where, as here, the statute expressly prohibits

administrative action.’”) (quoting Bowen v. Michigan Academy of

Family Physicians, 476 U.S. 667, 670 (1986)); cf. Shalala v. Illinois

Council on Long Term Care, Inc., 529 U.S. 1, 45–46 (2000)

(Thomas, J., concurring) (It is a “longstanding canon that judicial

review of executive action will not be cut off unless there is

persuasive reason to believe that such was the purpose of Congress,”

and noting that the Court had applied the presumption in the

immigration context, “notwithstanding the statute’s express

prohibition of judicial review”) (formatting modified).

17

judicial review—in other words, the presumption dictates that

such provisions must be read narrowly.”).

The Supreme Court has “‘consistently applied’ the

presumption of reviewability to immigration statutes,”

including the very statute at issue here, 8 U.S.C. § 1252(a), and

the very subsection on which the dissenting opinion relies. See

Guerrero-Lasprilla, 140 S. Ct. at 1069–1070; see also Kucana,

558 U.S. at 251–252 (also applying the presumption to

Subsection 1252(a)(2)(B)); cf. McNary v. Haitian Refugee

Ctr., Inc., 498 U.S. 479, 496 (1991) (applying presumption to

a predecessor INA provision).

That “well-settled” presumption can be overcome only by

“clear and convincing evidence” of congressional intent to

preclude judicial review. See, e.g., Kucana, 558 U.S. at 252

(quoting Reno v. Catholic Social Servs., Inc., 509 U.S. 43, 64

(1993)).

Foundational tenets of statutory construction likewise

apply with equal force in the jurisdictional context. That means

that, when interpreting a jurisdiction-stripping provision, we

start with the text, and then read those words in light of the

statutory structure and context. See Guerrero-Lasprilla, 140 S.

Ct. at 1070–1071; see also Kucana, 558 U.S. at 245 (same);

Oral Arg. Tr. 74:15–17 (Secretary agreeing that the provisions

are “not divorced,” and that the court must “read the entire

context of the statute”).

Applying those principles of statutory construction, we

hold that IIRIRA’s text and statutory structure expressly

preserve the district court’s jurisdiction under 28 U.S.C. § 1331

over the Associations’ APA challenges.

18

1

While the statutory provisions at issue are complex,

straightforward rules of statutory construction knit them

together and, at every turn, expressly preserve jurisdiction over

challenges like the Associations’ claims of legal or

constitutional error in the Secretary’s rules implementing

expedited removal.

First, the statute’s plain language says that there is

jurisdiction. In the midst of a statutory section that largely

limits and channels judicial relief directly into the federal

appellate courts or habeas corpus proceedings, Congress

specifically provided in the expedited removal context for more

traditional judicial review of “[c]hallenges on validity of the

system[.]” 8 U.S.C. § 1252(e)(3) (formatting modified). For

those claims, Congress authorized “[j]udicial review” by

means of “an action instituted in the United States District

Court for the District of Columbia[.]” Id. § 1252(e)(3)(A).4

4

Subsection 1252(e)(3)(A) provides in full:

(3) Challenges On Validity Of The System

(A) In general

Judicial review of determinations under section

1225(b) of this title and its implementation is available in

an action instituted in the United States District Court for

the District of Columbia, but shall be limited to

determinations of—

(i) whether such section, or any regulation issued to

implement such section, is constitutional; or

(ii) whether such a regulation, or a written policy

directive, written policy guideline, or written

procedure issued by or under the authority of the

19

That review specifically includes “determinations under

section 1225(b) of this title and its implementation[.]” 8 U.S.C.

§ 1252(e)(3)(A) (emphasis added). The natural meaning of the

singular “its” points directly to litigation over

Section 1225(b)’s implementation. See United States v.

Barnes, 295 F.3d 1354, 1364 (D.C. Cir. 2002).

“[S]ection 1225(b) of this title” is also the last antecedent to

which the word “its” refers. See Barnhart v. Thomas, 540 U.S.

20, 26 (2003) (Under the “rule of the last antecedent,” a clause

or phrase “should ordinarily be read as modifying only the

noun or phrase that it immediately follows[.]”).5

Second, a basic rule of statutory construction is to “[r]ead

on.” Arkansas Game & Fish Comm’n v. United States, 568

U.S. 23, 36 (2012); see Local Union 1261, Dist. 22, United

Mine Workers v. Federal Mine Safety & Health Review

Comm’n, 917 F.2d 42, 45 (D.C. Cir. 1990) (“If the first rule of

statutory construction is ‘Read,’ the second rule is ‘Read

On!’”). The ensuing provisions of Subsection 1252(e)(3)(A)

confirm that the Subsection’s opening paragraph means what it

says. Congress enumerated the judicial challenges the

provision allows, which include whether “any regulation

issued to implement such section[] is constitutional,” and

whether “a regulation, or a written policy directive, written

policy guideline, or written procedure issued by or under the

authority of the [Secretary] to implement [expedited removal]

Attorney General to implement such section, is not

consistent with applicable provisions of this

subchapter or is otherwise in violation of law.

8 U.S.C. § 1252(e).

5

There is no dispute that jurisdiction under this provision

extends as well to this court’s appellate review of a district court

decision. See 8 U.S.C. § 1252(e)(3)(C)–(D).

20

is not consistent with applicable provisions of [the INA] or is

otherwise in violation of law.” 8 U.S.C. § 1252(e)(3)(A)(ii).

Third, earlier in Section 1252, Congress underscored its

preservation of judicial review over legal challenges to the

rules implementing the expedited removal system by thrice

qualifying its limitations on judicial review “relating to

section 1225(b)(1)” by emphasizing that review is barred

“except as provided in subsection (e)[.]” 8 U.S.C.

§ 1252(a)(2)(A) (formatting modified); see also id.

§ 1252(a)(2)(A)(i, ii, & iv).

2

Notwithstanding Subsection 1252(e)(3)’s plain textual

coverage of the types of legal and constitutional claims leveled

by the Associations, the Secretary points back to the general

limitations on judicial review catalogued in

Subsection 1252(a)(2). That argument does not work.

The Secretary is correct that Subsection 1252(a)(2)

identifies three categories of “[m]atters not subject to judicial

review.” See 8 U.S.C. § 1252(a)(2)(A)–(C). Those include

matters relating to (A) expedited removal, (B) denials of

discretionary relief, and (C) orders against criminals (which the

Secretary agrees is not relevant here). Id. Reading the statute

as a whole, the Secretary’s argument against judicial review

runs aground on the statutory text.

(i) Subsection A

Subsection A is entitled “[r]eview relating to

section 1225(b)(1),” and so speaks specifically to and directly

governs jurisdiction over challenges to the expedited removal

scheme. 8 U.S.C. § 1252(a)(2)(A) (formatting modified). The

Secretary notes that Subsection A generally bars judicial

21

review of (i) “any individual determination or to entertain any

other cause or claim arising from or relating to the

implementation or operation of an order of [expedited]

removal”; (ii) “a decision by the [Secretary] to invoke the

provisions of such section”; (iii) “the application of [the

expedited removal] section to individual aliens, including the

[credible-fear determination]”; and (iv) “procedures and

policies adopted by the [Secretary] to implement the provisions

of section 1225(b)(1)[.]” Id. § 1252(a)(2)(A).6

Those provisions hurt rather than help the Secretary’s

argument. That is because, as noted earlier, romanettes (i), (ii),

6

Subsection A provides in full:

Notwithstanding any other provision of law (statutory

or nonstatutory), including section 2241 of title 28, or any

other habeas corpus provision, and sections 1361 and 1651

of such title, no court shall have jurisdiction to review—

(i) except as provided in subsection (e), any

individual determination or to entertain any other

cause or claim arising from or relating to the

implementation or operation of an order of removal

pursuant to section 1225(b)(1) of this title,

(ii) except as provided in subsection (e), a decision by

the Attorney General to invoke the provisions of such

section,

(iii) the application of such section to individual

aliens, including the determination made under

section 1225(b)(1)(B) of this title, or

(iv) except as provided in subsection (e), procedures

and policies adopted by the Attorney General to

22

and (iv) each expressly reserve jurisdiction “as provided in

subsection (e)” for constitutional and legal challenges to the

Secretary’s rules and procedures implementing the expedited

removal system. Those provisions textually embrace the

Secretary’s decision in the Expansion Designation “to invoke”

and “to implement” both in “procedure[] and polic[y]” the full

reach of authority conferred by Congress in the expedited

removal provision, 8 U.S.C. § 1252(a)(2)(A)(ii & iv). So the

statute’s plain text steers us right back to the grant of

jurisdiction in Subsection 1252(e)(3) over precisely the type of

legal claims that the Associations press.7

The Secretary resists that straightforward reading in two

ways.

First, the Secretary argues that Section 1252(e) only

allows the initiation of a lawsuit in district court in Washington,

D.C. by an individual during those few short days that the

person is in expedited removal proceedings (which almost

invariably is conducted somewhere outside of Washington,

D.C.). The Secretary points out that Section 1252(e) is titled

“[j]udicial review of orders under section 1225(b)(1)[.]”

Secretary Br. 22–23. But read as a whole, the text says

implement the provisions of section 1225(b)(1) of

this title.

8 U.S.C. § 1252(a)(2)(A).

7

Romanette (iii) applies specifically to a challenge to the

“application” of the expedited removal process to an “individual[.]”

Those individuals must funnel their challenges to their final orders

of removal into habeas corpus review rather than through

Section 1252(e). See 8 U.S.C. § 1252(a)(2)(A)(iii), (e)(2).

23

otherwise.8 While romanettes (i) and (iii) refer to claims

pressed by individuals to whom the expedited removal scheme

is being “appli[ed]” or an order of removal is being

“implement[ed],” the other two romanettes for which review

under Subsection 1252(e)(3) is specifically authorized are not

textually confined to claims arising from individual removal

actions. Compare 8 U.S.C. § 1252(a)(2)(A)(i & iii), with id.

§ 1252(a)(2)(A)(ii) (covering challenges to “a decision by the

[Secretary] to invoke the [expedited removal] provisions”), and

id. 1252(a)(2)(A)(iv) (encompassing claims related to the

“procedures and policies adopted by the [Secretary] to

implement the [expedited removal] provisions”). So Congress

included within Subsection 1252(e)(3) two categories of

claims that, by their terms, are not confined to individual

expedited-removal proceedings, including specifically the type

of legal challenge to the Expansion Designation rule advanced

here. Id. § 1252(e)(3)(A)(i and ii).

The dissenting opinion echoes this argument, contending

that “Section 1252(e) simply does not address

designations * * * rather it explicitly preserves judicial review

of policies only in the context of ‘determinations[.]’” Dissent

Op. at 15. But that reading forsakes the text of the statute,

which expressly permits review of “determinations under

section 1225(b) * * * and its implementation,” 8 U.S.C.

§ 1252(e)(3)(A) (emphasis added). And again in

Subsection 1252(a)(2)(A)(iv), the statute expressly assigns to

Subsection 1252(e)(3)’s jurisdiction claims that exclusively

8

Section headings “are tools available for the resolution of a

doubt about the meaning of a statute.” Florida Dep’t of Revenue v.

Piccadilly Cafeterias, Inc., 554 U.S. 33, 47 (2008) (quoting Porter

v. Nussle, 534 U.S. 516, 528 (2002)). But they “cannot substitute for

the operative text of the statute.” Id.; see also Pennsylvania Dep’t of

Corrections v. Yeskey, 524 U.S. 206, 212 (1998) (“[T]he title of a

statute * * * cannot limit the plain meaning of the text.”).

24

involve challenges to “procedures and policies adopted by the

[Secretary] to implement [the statute]” divorced from any

individual determination. Id. § 1252(a)(2)(A)(iv).

Second, the Secretary points to this court’s rejection of a

challenge to an expedited-removal rule in American

Immigration Lawyers Association v. Reno, 199 F.3d 1352

(D.C. Cir. 2000). That mixes apples and oranges. American

Immigration rejected third-party organizational standing by the

American Immigration Lawyers Association itself as a basis to

sue under Subsection 1252(e)(3). See id. at 1354. The case did

not address associational standing to prosecute a case on behalf

of individuals directly regulated and affected by the challenged

rule. Id. at 1357 (explaining that the Association alleged that

the challenged rule violated “not their rights or the rights of

their members, but the constitutional and statutory rights of

unnamed aliens who were or might be subject to the statute and

regulations”).

In fact, American Immigration specifically contemplated

that litigation could be brought by affected individuals

themselves. See 199 F.3d at 1359 (“From all we can gather,

Congress must have contemplated that lawsuits challenging

[actions] would be brought, if at all, by individual aliens who—

during the sixty-day period—were aggrieved by the statute’s

implementation.”).

That makes sense. Whether aggrieved individuals sue on

their own or band together through a representative association

does not change the nature of the lawsuit as seeking to remedy

the individual members’ injuries arising from the Expansion

Designation. That is because associational (sometimes called

“representational”) standing is derivative and reflective of

individual standing. See Warth v. Seldin, 422 U.S. 490, 511

(1975) (“[A]n association may have standing solely as the

25

representative of its members.”); see also American Legal

Found. v. FCC, 808 F.2d 84, 90 (D.C. Cir. 1987) (Associations

can “be described as ‘but the medium through which

individuals * * * seek to make more effective the expression of

their own views[.]’”) (quoting Telecommunications Research

& Action Ctr. v. Allnet Commc’n Servs., Inc., 806 F.2d 1093,

1095–1096 (D.C. Cir. 1986)).9

To sum up, Subsection 1252(e)(3) expressly provides for

jurisdiction over the very type of claim that the Associations

are bringing on behalf of their individual members.10

9

Associational standing is particularly common in situations

like this where proceeding as individuals would identify the plaintiffs

to the government as targets of the very enforcement actions they

challenge as unlawful.

10

The dissenting opinion proffers a lengthy analysis of the

differences between designations, orders, and determinations,

Dissent Op. at 14–16, that not even the Secretary advanced. The

dissenting opinion contends that Subsection 1252(e)(3) permits

review only of orders of removal and determinations, both of which

“are directed to individual aliens[.]” Dissent Op. at 14–15. The plain

statutory text says otherwise, specifically providing for review of

Section 1225(b)’s “implementation,” “regulation[s],” “written

policy directive[s], written policy guideline[s], or written

procedure[s].” 8 U.S.C. § 1252(e)(3)(A)(i & ii); see also H.R. REP.

NO. 828, 104th Cong., 2d Sess. 219 (1996) (explaining that

“procedures and policies to implement [8 U.S.C. § 1225(b)(1)]” are

reviewable under Section 1252(e), while “[i]ndividual

determinations under [8 U.S.C. § 1225(b)(1)] may only be reviewed

under new [Subsections § 1252(e)(1)–(2)]”). That difference is

borne out in the statutory text. Subsection 1252(e)(2), which is titled

“[h]abeas corpus proceedings[,]” permits “[j]udicial review of any

determination under section 1225(b)(1) of this title[.]” 8 U.S.C.

§ 1252(e)(2) (formatting modified). By contrast,

Subsection 1252(e)(3) sweeps more broadly, permitting “[j]udicial

26

(ii) Subsection B

The Secretary next points to Subsection B of Section 1252

as foreclosing jurisdiction over the Associations’ legal

challenges. But that provision addresses what Congress

labeled “[d]enials of discretionary relief[.]” 8 U.S.C.

§ 1252(a)(2)(B) (formatting modified). The Secretary’s

decision to exercise his conferred statutory powers to expand

the scope of expedited removal, id. § 1225(b)(1)(A)(iii)(I), is a

general rulemaking governing the removal procedures to be

applied in a certain context, not a denial of discretionary relief.

The plain text of Subsection B bears its title out. That

provision is divided into Clause (i) and Clause (ii), which

specify the decisions not subject to judicial review. See 8

U.S.C. § 1252(a)(2)(B)(i & ii). Clause (i) provides an

enumerated list of discretionary forms of individual relief from

removal or exclusion that are generally immune from judicial

review. Id. § 1252(a)(2)(B)(i). Those include individual

waivers of inadmissibility that were based on certain criminal

offenses, id. § 1182(h), or based on fraud or misrepresentation,

id. § 1182(i); cancellation of removal, id. § 1229b; permission

for voluntary departure, id. § 1229c; and adjustment of status,

id. § 1255. See id. § 1252(a)(2)(B)(i); see also Kucana, 558

U.S. at 247–248. Clause (i) makes no mention of

administrative decisions generally implementing the

review of determinations under section 1225(b) of this title and its

implementation[.]” Id. § 1252(e)(3) (emphasis added) (formatting

modified). Congress knew how to limit judicial review to

“determinations” under the statute if it wished but chose not to do so

in Section 1252(e)(3). See Russello v. United States, 464 U.S. 16, 23

(1983) (“[W]here Congress includes particular language in one

section of a statute but omits it in another section of the same Act, it

is generally presumed that Congress acts intentionally and purposely

in the disparate inclusion or exclusion.”).

27

expedited-removal procedure or anything of that nature.

(Understandably, as that subject is already specifically and

exhaustively covered by Subsection A.)

The Secretary relies on Clause (ii), which removes

jurisdiction over “any other decision or action of the Attorney

General or the Secretary of Homeland Security the authority

for which is specified under this subchapter to be in the

discretion of the Attorney General or the Secretary of

Homeland Security[.]” 8 U.S.C. § 1252(a)(2)(B)(ii).

The problem for the Secretary is that the Supreme Court

has instructed that Clause (ii)’s reference to “any other decision

or action” is a “catchall provision,” the meaning of which is

“instruct[ed]” by “[t]he [C]lause (i) enumeration.” Kucana,

558 U.S. at 246–247. In Kucana, the government argued to the

Supreme Court that Clause (ii) pertains only to those

“substantive decisions * * * made by the Executive in the

immigration context as a matter of grace, things that involve

whether aliens can stay in the country or not.” Id.

Based on the statutory structure, the Supreme Court held

that those “[o]ther decisions specified by statute ‘to be in the

discretion of the Attorney General,’ and therefore shielded

from court oversight by § 1252(a)(2)(B)(ii), are of a like kind”

as those identified in Clause (i). Kucana, 558 U.S. at 248. The

Court’s recitation of the type of decisions covered by

Clause (ii) proves the point. The Court interpreted Clause (ii)’s

reach as capturing decisions under Ҥ 1157(c)(1) (discretion to

admit refugees ‘determined to be of special humanitarian

concern to the United States’); § 1181(b) (discretion to waive

requirement of documentation for readmission; [and]

§ 1182(a)(3)(D)(iii) (discretion to waive, in certain cases,

inadmissibility of aliens who have affiliated with a totalitarian

party).” Kucana, 558 U.S. at 248.

28

That reading is bolstered by the reference at the end of

Clause (ii). After specifying that those types of discretionary

decisions are nonreviewable, the provision explicitly carves out

from the jurisdictional bar another type of discretionary

substantive relief from removal for individuals—asylum

claims. See 8 U.S.C. § 1252(a)(2)(B)(ii) (excluding “the

granting of relief under section 1158(a) of this title” from the

prohibition on judicial review).

The Supreme Court repeated that understanding of

Subsection B’s scope recently in Nasrallah v. Barr,

No. 18-1432, 2020 WL 2814299, at *8 & n.5 (U.S. June 1,

2020). There, the Court again described Subsection B as

barring judicial review of “challenges to orders denying

discretionary relief, including cancellation of removal,

voluntary departure, adjustment of status, certain

inadmissibility waivers, and other determinations ‘made

discretionary by statute.’” Id. at *8 (emphasis added) (quoting

Kucana, 558 U.S. at 248). The Court then specifically

distinguished the procedures for “expedited removal

proceedings,” which the Court noted are governed by

Subsection A and Section 1252(e). Id. at *8 n.5; see also

Kucana, 558 U.S. at 248 (stating that Subsection B applies not

to discretionary judgments about removal procedures, but to

individualized discretionary judgments regarding relief from

removal that, if overturned on judicial review, would “direct

the Executive to afford the alien substantive relief” from

removal); Zhu v. Gonzales, 411 F.3d 292, 293–294 (D.C. Cir.

2005) (applying the ban on judicial review in Clause (ii) to the

Attorney General’s decision, in response to individual

applications, not to exercise his discretion to waive work

certification requirements).

In short, the statutory text, confirmed by the Supreme

Court’s holding in Kucana and reaffirmed in Nasrallah,

29

focuses Clause (ii)’s bar on individualized forms of

discretionary relief from removal or exclusion, which is not the

type of generally applicable rulemaking governing removal

procedures undertaken by the Secretary in this case.11

A wider view of Section 1252 affords still more relevant

perspective on the Secretary’s argument. Even where it

applies, Subsection B’s jurisdictional bar does not apply to

challenges based on “constitutional claims or questions of

law.” 8 U.S.C. § 1252(a)(2)(D). Instead, the statute allows

such claims to be “raised upon a petition for review filed with

an appropriate court of appeals[.]” Id.; see also Guerrero-

Lasprilla, 140 S. Ct. at 1068–1069.12 That tells us two things.

11

The dissenting opinion asserts that Kucana stands for the

proposition that all decisions statutorily committed to the Secretary’s

discretion fall within Subsection B’s ambit. See Dissent Op. at 10–

11. But Kucana teaches two things—not just one. First, decisions

made discretionary by regulation do not fall within Subsection B’s

jurisdictional bar. See Kucana, 558 U.S. at 237. Second, Clause (i)

“is instructive in determining the meaning of [Clause] (ii)[.]” Id. at

247. We draw on that second teaching in interpreting Clause (ii)’s

reach here. The dissenting opinion also points to the government’s

brief in Kucana, which identified the Designation Provision as

“explicitly grant[ing] the Attorney General * * * ‘discretion’ to

make a certain decision.” See 558 U.S. at 247 n.14 (referring

generally to Respondent’s Br. 19–20 n.11, Kucana v. Holder,

No. 08-911, 2009 WL 2028903 (July 13, 2009)). The Designation

Provision certainly does confer expansive discretion on the

Secretary. But that footnote served only to distinguish statutory from

regulatory conferrals of discretion, which is not an issue in this case.

Kucana, 558 U.S. at 247 & n.14.

12

The dissenting opinion claims that we “mistakenly rel[y]” on

Subsection D. Dissent Op. at 17. Not so. As directed by the

Supreme Court, we just look to Subsection D as part of the relevant

30

First, whatever Subsection B’s jurisdictional bar covers, it

is not the type of challenges to the Secretary’s regulations,

orders, policies, and directives specifically implementing the

expedited removal scheme for which Section 1252(e)

expressly grants jurisdiction—and that are brought by the

Associations here. What IIRIRA does in Section 1252 is route

those legal and constitutional challenges to two different fora.

Those involving orders denying discretionary relief in

individual cases are covered by Subsection B and are routed to

federal courts of appeals across the United States. See 8 U.S.C.

§ 1252(a)(2)(D); see also Nasrallah, 2020 WL 2814299, at *8

n.5 (treating separately Subsection B’s area of application and

the statutory provisions that govern in the expedited removal

context, including Section 1252(e)). And those challenges

pertaining to the expedited removal program must be filed in

the District of Columbia district court. See id. § 1252(e)(3).13

Second, what pervades Subsection 1252(a)(2) is

Congress’s commitment to preserving the jurisdiction of

federal courts to review constitutional and legal challenges to

the decisions otherwise covered by its general bars on judicial

review. See Guerrero-Lasprilla, 140 S. Ct. at 1072–1073

(discussing Congress’s calibration of the statute to allow for

legal and constitutional challenges in the wake of INS v. St.

Cyr, 533 U.S. 289 (2001)). The Secretary’s and dissenting

opinion’s proposed interpretation of the statute, by contrast,

statutory context. See Guerrero-Lasprilla, 140 S. Ct. at 1070–1071;

see also Kucana, 558 U.S. at 245 (same).

13

It is well established “that the specific governs the general.”

RadLAX Gateway Hotel, LLC v. Amalgamated Bank, 566 U.S. 639,

645 (2012) (quoting Morales v. Trans World Airlines, Inc., 504 U.S.

374, 384 (1992)).

31

would broadly preclude such review in the expedited removal

context.

B

While establishing jurisdiction gets the Associations

through the courthouse door, it does not keep them there. They

also need a cause of action to prosecute. That is where the

Associations’ APA notice-and-comment and reasoned

decisionmaking claims founder.

1

The APA’s judicial review provisions, 5 U.S.C. §§ 701–

706, “provide ‘a limited cause of action for parties adversely

affected by agency action.’” Oryszak v. Sullivan, 576 F.3d 522,

525 (D.C. Cir. 2009) (quoting Trudeau v. FTC, 456 F.3d 178,

185 (D.C. Cir. 2006)); see also Chrysler Corp. v. Brown, 441

U.S. 281, 317 n.47 (1979) (“Jurisdiction to review agency

action under the APA is found in 28 U.S.C. § 1331.”).

But that cause of action is not available where, among

other things, “agency action is committed to agency discretion

by law.” 5 U.S.C. § 701(a)(2); see Department of Commerce

v. New York, 139 S. Ct. 2551, 2567 (2019); Oryszak, 576 F.3d

at 525 (“Because the APA does not apply to agency action

committed to agency discretion by law, a plaintiff who

challenges such an action cannot state a claim under the

APA.”).

The APA exception for actions committed to agency

discretion by law is read “quite narrowly, restricting it to those

rare circumstances where the relevant statute is drawn so that a

court would have no meaningful standard against which to

judge the agency’s exercise of discretion.” Department of

Commerce, 139 S. Ct. at 2568 (quoting Weyerhaeuser Co. v.

32

United States Fish & Wildlife Serv., 139 S. Ct. 361, 370

(2018)).

But rare does not mean never. The Designation Provision,

which empowers the Secretary to decide the extent to which

expedited removal will operate within statutory bounds, 8

U.S.C. § 1225(b)(1)(A)(iii)(I), falls squarely within

Section 701(a)(2)’s restrictive mold.

The Designation Provision allows the extension of

expedited removal procedures “as designated by” the

Secretary” “to any or all” individuals who have not been

admitted or paroled into the United States and who cannot

demonstrate that they have been continuously present in the

United States for two years. 8 U.S.C. § 1225(b)(1)(A)(iii)(I);

see id. § 1225(b)(1)(A)(iii)(II). Critically, “[s]uch designation

shall be in the sole and unreviewable discretion of the

[Secretary] and may be modified at any time.” Id.

§ 1225(b)(1)(A)(iii)(I).

There could hardly be a more definitive expression of

congressional intent to leave the decision about the scope of

expedited removal, within statutory bounds, to the Secretary’s

independent judgment. The “forceful phrase ‘sole and

unreviewable discretion,’” by its exceptional terms, heralds

Congress’s judgment to commit the decision exclusively to

agency discretion. See Bourdon v. United States Dep’t of

Homeland Sec., 940 F.3d 537, 542 (11th Cir. 2019). For

example, in Webster v. Doe, 486 U.S. 592 (1988), the Supreme

Court stressed that an agency’s power to terminate an

employee whenever the official “shall deem such termination

necessary or advisable” “fairly exudes deference[.]” Id. at 600;

see also Drake v. Federal Aviation Admin., 291 F.3d 59, 72

(D.C. Cir. 2002) (statute that permits an official to act

33

whenever she “is of the opinion” affords “virtually unbridled

discretion”).

Congress’s addition of the phrase “and unreviewable

discretion” to “sole” doubles down on the confinement of the

judgment to one decisionmaker, and one decisionmaker alone.

The natural meaning of the statutory text is that, unless the

Secretary crosses the statute’s bounds (which is not argued in

this appeal), no second opinions are allowed.

Tripling down, Congress teamed “sole and unreviewable

discretion” with the additional authority to modify that

unreviewable decision “at any time.” 8 U.S.C.

§ 1225(b)(1)(A)(iii)(I). That statutory language confines the

judgment to the Secretary’s hands and, in so doing, inescapably

seeks to withdraw the decision from APA review.

Of course, a statute’s grant of “broad discretion to an

agency does not render the agency’s decisions completely

nonreviewable under the ‘committed to agency discretion by

law’ exception” unless the court also determines that the

“statutory scheme[,] taken together with other relevant

materials, provides absolutely no guidance as to how that

discretion is to be exercised.” Robbins v. Reagan, 780 F.2d 37,

45 (D.C. Cir. 1985) (per curiam). If no standards for judging

the agency action “are discernable, meaningful judicial review

is impossible, and agency action is shielded from the scrutiny

of the courts,” Drake, 291 F.3d at 70, “at least [as] long as the

agency’s action does not otherwise infringe some

constitutional right or protection,” id. at 72.

The Designation Provision checks that box as well. It

provides no discernible standards by which a court could

evaluate the Secretary’s judgment. In the hunt for applicable

guidance, we consider “both the nature of the administrative

action at issue and the language and structure of the statute that

34

supplies the applicable legal standards for reviewing that

action.” Secretary of Labor v. Twentymile Coal Co., 456 F.3d

151, 156 (D.C. Cir. 2006) (quoting Drake, 291 F.3d at 70).

With respect to the nature of the agency action, the

Associations are correct that the designation is not the type of

judgment that, as a matter of tradition, is presumptively

committed to agency discretion. Certain actions, like refusals

to initiate enforcement proceedings, criminal charging

decisions, and the allocation of funds from a lump-sum

appropriation, have long been regarded as committed to agency

discretion. See Twentymile, 456 F.3d at 156 & n.6. The

designation decision does not fall within one of those almost-

automatically-unreviewable categories.

But that does not move the ball far in the Associations’

favor. It means only that a “presumption of [APA]

reviewability” attaches. Sierra Club v. Jackson, 648 F.3d 848,

856 (D.C. Cir. 2011).

So the question becomes whether the language or structure

of the statute provides substantive legal standards for a court to

apply. The Designation Provision does not. The Provision

states only that the Secretary “may” apply expedited removal

“to any or all [eligible] aliens” under the statute. See 8 U.S.C.

§ 1225(b)(1)(A)(iii)(I). The individuals statutorily subject to

expedited removal are those “who ha[ve] not been admitted or

paroled into the United States, and who ha[ve] not

affirmatively shown, to the satisfaction of an immigration

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

States continuously for the 2-year period immediately prior to

the date of the determination of inadmissibility[.]” Id.

§ 1225(b)(1)(A)(iii)(II). The Associations do not allege that

the Secretary’s expansion of the designation exceeded those

statutory bounds.

35

That is it. Neither the statutory text nor structure provides

any other legal standards constraining the Secretary’s

discretionary judgment. The statute says only that the

Secretary is authorized to designate the groups that fall within

statutory bounds in his “sole and unreviewable discretion” and

may modify such designation “at any time.” See 8 U.S.C.

§ 1225(b)(1)(A)(iii)(I). In looking for judicially administrable

standards by which to judge the Secretary’s decision, that

language is an empty vessel.

The Associations insist that “[t]he INA is not ‘drawn so

that it furnishes no meaningful standard.’” See Associations’

Response Br. 36 (quoting Department of Commerce, 139 S. Ct.

at 2568). But they do not back that up by identifying any such

meaningful standard. Instead, they reason that “[t]he expedited

removal statute delineates a process by which officers decide

whether expedited removal applies and whether noncitizens

should receive further proceedings on their claims for

protection or regarding lawful status.” Id. As a result, the

Associations claim the Secretary was “required to consider the

ability to administer these standards accurately and fairly when

applying expedited removal to the new class of noncitizens.”

Id.

That argument misses the mark. The standards identified

by the Associations apply to the screening process laid out in a

different part of Section 1225(b). See 8 U.S.C.

§ 1225(b)(1)(A)(i)–(ii). The Secretary’s designation authority,

however, derives from a separate statutory provision. See id.

§ 1225(b)(1)(A)(iii). And Congress deliberately chose in the

Designation Provision to commit such enforcement and

resource judgments to the Secretary’s “sole and unreviewable

discretion[.]” Id. § 1225(b)(1)(A)(iii)(I).

36

At bottom, while the Associations want the court to

substantively superintend the Secretary’s designation judgment

even when the Secretary stays within statutory bounds, the

search for governing standards comes up empty. That

judgment is committed to agency discretion by law and, under

Section 701 of the APA, there is no cause of action to evaluate

the merits of the Secretary’s judgment under APA standards.14

2

While there is no APA cause of action for substantive

review of the Secretary’s designation, the Associations

separately argue that the Secretary was obligated to make the

designation through the formal APA notice-and-comment

rulemaking process. The Associations are correct in one

respect: Even when a decision is committed to agency

discretion by law, and so is immune from substantive review,

the agency’s decision may still be subject to notice-and-

comment rulemaking. See Lincoln v. Vigil, 508 U.S. 182, 195

(1993); see also American Med. Ass’n v. Reno, 57 F.3d 1129,

1134 (D.C. Cir. 1995) (“[W]e note that under the APA the

ultimate availability of substantive judicial review is distinct

from the question of whether the basic rulemaking strictures of

notice and comment and reasoned explanation apply.”). But

14

Because there is no argument before us that the Secretary’s

designation decision exceeded the bounds of statutory authority

granted by the INA and because the district court did not address the

Associations’ statutory claims under the INA and constitutional

claims in granting a preliminary injunction, see Make the Road, 405

F. Supp. 3d at 25 n.12, we do not address whether there would be a

cause of action under the APA or otherwise if the Secretary expanded

expedited removal beyond the statute’s bounds or otherwise violated

the INA, or if the Secretary’s actions were unconstitutional.

37

here, the statute renders the formal notice-and-comment

rulemaking regime inapplicable.

For starters, a central purpose of notice-and-comment

rulemaking is to subject agency decisionmaking to public input

and to obligate the agency to consider and respond to the

material comments and concerns that are voiced. See Perez v.

Mortgage Bankers Ass’n, 575 U.S. 92, 96 (2015) (“An agency

must consider and respond to significant comments received

during the period for public comment.”); see also Lilliputian

Sys., Inc. v. Pipeline & Hazardous Materials Safety Admin.,

741 F.3d 1309, 1312 (D.C. Cir. 2014) (“An agency’s failure to

respond to relevant and significant public comments generally

‘demonstrates that the agency’s decision was not based on a

consideration of the relevant factors.’”) (quoting Thompson v.

Clark, 741 F.2d 401, 409 (D.C. Cir. 1984)).

But the Designation Provision is explicit that the Secretary

is under no duty to consider the views of others in expanding

or contracting the scope of the designation. That decision is in

the Secretary’s “sole” discretion. 8 U.S.C.

§ 1225(b)(1)(A)(iii)(I). That means that the Secretary alone

has the power to make the designation entirely independent of

the views of others.

On top of that, “part of the purpose of notice and comment

rulemaking is to ensure the parties develop a record for judicial

review.” American Clinical Lab., 931 F.3d at 1206; see also

International Union, United Mine Workers v. Mine Safety &

Health Admin., 407 F.3d 1250, 1259 (D.C. Cir. 2005)

(“[Rulemaking n]otice requirements are designed * * * to give

affected parties an opportunity to develop evidence in the

record to support their objections to the rule and thereby

enhance the quality of judicial review.”).

38

Yet there is no need to create a record for judicial review

where there is no cause of action for substantive judicial review

of the designation decision. The decision is in the Secretary’s

“unreviewable discretion.” 8 U.S.C. § 1225(b)(1)(A)(iii)(I).

Finally, the Secretary is permitted to modify the

designation “at any time,” 8 U.S.C. § 1225(b)(1)(A)(iii)(I),

which in this context necessarily means without taking the time

to first go through the usually lengthy notice-and-comment

rulemaking process. The power to modify “at any time” and in

his “sole discretion” also means that the Secretary would be

free to ignore the comments that the notice-and-comment

process produces. Under those circumstances, the notice-and-

comment procedure would be an empty, yet time-consuming,

exercise—all form and no substance. Where Congress leaves

the notice-and-comment process no work to do and expressly

authorizes the Executive Branch to exercise its unreviewable

discretion “at any time,” the APA does not require an agency

to undertake the process for its own sake.

One last point. The dissenting opinion discusses, at length,

whether the district court possessed authority to issue an

injunction and whether nationwide injunctions are appropriate.

It seems rather obvious that, having held that there is no APA

cause of action for the Associations to pursue in this appeal, we

need not address whether an injunctive remedy would be

available if there were a cause of action.

Of course, to the extent the dissenting opinion implies

some jurisdictionally troublesome lack of redressability,

Dissent Op. at 18, then we must dispel that concern. Which is

easily done.

Section 1252(f) prohibits only injunctions against “the

operation of the provisions of part IV of this subchapter” as

amended by IIRIRA. 8 U.S.C. § 1252(f). It does not proscribe

39

issuance of a declaratory judgment, which the Associations

sought here, see J.A. 38–39. The Supreme Court has

specifically held that Section 1252(f) does not bar declaratory

relief. Nielsen v. Preap, 139 S. Ct. 954, 962 (2019). So, like

the Supreme Court, we “need not resolve whether we would

have jurisdiction” to enter an injunction to establish Article III

redressability because the district court “had jurisdiction to

entertain the plaintiffs’ request for declaratory relief[.]” Id.;

see also Alli v. Decker, 650 F.3d 1007, 1013 (3d Cir. 2011)

(“[I]t is apparent that the jurisdictional limitations in

[Section 1252(f)] do not encompass declaratory relief.”);

Rodriguez v. Hayes, 591 F.3d 1105, 1119 (9th Cir. 2010)

(holding that Section 1252(f) covers only injunctive relief);

Arevalo v. Aschroft, 344 F.3d 1, 7 (1st Cir. 2003) (same).

IV

We hold that the district court properly exercised

jurisdiction under 8 U.S.C. § 1252(e) over the Associations’

claims, but that there is no cause of action under the APA to

scrutinize the Secretary’s designation decision so long as it

falls within statutory and constitutional bounds. We therefore

reverse the district court’s grant of a preliminary injunction and

remand for further proceedings consistent with this opinion.

So ordered.

RAO, Circuit Judge, dissenting: Citing national security

and resource allocation concerns, the Secretary of Homeland

Security designated additional aliens for expedited removal

from our borders. See 84 Fed. Reg. 35,409 (July 23, 2019)

(“Expansion Designation”). Although no alien has been

removed under the new designation, several immigrant rights

organizations (“plaintiffs”) brought a preenforcement

challenge to the Secretary’s policy. The district court granted a

nationwide preliminary injunction halting enforcement of the

Expansion Designation. While the majority reverses the district

court’s preliminary injunction on the merits, I would dismiss

plaintiffs’ claims at the threshold. The Immigration and

Nationality Act (“INA”) expressly bars the courts from

reviewing the Secretary’s discretionary decisions regarding

expedited removal. One of the few checks on the independent

judiciary comes from Congress’s ability to set the jurisdiction

of the inferior federal courts. Because the majority exercises

jurisdiction over a claim that Congress explicitly withholds

from our review, I respectfully dissent.

I.

Although the majority begins with the statutory

presumption of reviewability, I begin from a different starting

point, the constitutional power of Congress to strip lower

federal courts of jurisdiction over a class of cases. The

Constitution vests Congress with the power “[t]o constitute

Tribunals inferior to the supreme Court,” U.S. CONST. art. I,

§ 8, cl. 9, a power that naturally “includes [the] lesser power to

‘limit the jurisdiction of those Courts,’” Patchak v. Zinke, 138

S. Ct. 897, 906 (2018) (quoting United States v. Hudson, 11

U.S. (7 Cranch) 32, 33 (1812)). See also Sheldon v. Sill, 49 U.S.

441, 449 (1850); John Harrison, The Power of Congress to

Limit the Jurisdiction of Federal Courts and the Text of Article

III, 64 U. Chi. L. Rev. 203, 209 (1997) (“Congress may give

[inferior federal courts] all the jurisdiction the Constitution

2

permits, or none at all, or anything in between, as far as Article

III is concerned.”).

Under our Constitution, inferior federal courts have no

power except that which is specifically granted by Congress.

“[O]nly Congress may determine a lower federal court’s

subject-matter jurisdiction.” Bowles v. Russell, 551 U.S. 205,

211 (2007) (quotation omitted); Hudson, 11 U.S. (7 Cranch) at

33 (“All … Courts created by the general Government possess

no jurisdiction but what is given them by the power that creates

them.”). In consequence, Congress may withhold inferior

federal court jurisdiction “in the exact degrees and character

which to Congress may seem proper for the public good.” Cary

v. Curtis, 44 U.S. 236, 245 (1845). Indeed, “[t]o deny this

position would be to elevate the judicial over the legislative

branch of the government, and to give to the former powers

limited by its own discretion merely.” Id. Congress’s power to

confer or to withhold inferior federal court jurisdiction is a vital

element of the Constitution’s structure of separated and limited

powers. See Patchak, 138 S. Ct. at 907 (citing Steel Co. v.

Citizens for a Better Env’t, 523 U.S. 83, 101 (1998)).1

1

Congress, of course, cannot “violate other constitutional

provisions” in the exercise of its control over jurisdiction. Patchak,

138 S. Ct. at 906. Neither plaintiffs nor the majority suggest that the

INA’s denial of jurisdiction over this non-habeas preenforcement

challenge would transgress a constitutional boundary. Nor could

they, given Congress’s broad power over immigration and

longstanding limits on judicial review. See Jennings v. Rodriguez,

138 S. Ct. 830, 856 (2018) (Thomas, J., concurring in part and

concurring in the judgment) (“[I]n the context of deportation …

limits on the courts’ jurisdiction have existed for almost as long as

federal immigration laws, and … this Court has repeatedly affirmed

the constitutionality of those limits.”); see also Zadvydas v. Davis,

3

Congress’s constitutional power over inferior federal

jurisdiction means any presumption of reviewability must give

way to “clear and convincing evidence of congressional intent

to preclude judicial review.” Guerrero-Lasprilla v. Barr, 140

S. Ct. 1062, 1069 (2020) (quotation marks omitted); Kucana v.

Holder, 558 U.S. 233, 252 (2010). Despite this fundamental

precept, the majority begins its analysis with the presumption

of reviewability and then interprets each separate jurisdiction

stripping provision in light of that presumption. Maj. Op. 15–

17. Yet the presumption, originally a creature of the

Administrative Procedure Act, does not operate to place a

thumb on the scale when interpreting jurisdiction stripping

provisions. For example, in Kucana v. Holder, the Supreme

Court looked to the presumption only after an extensive

discussion of the text and structure of the INA, and to dispel

“[a]ny lingering doubt about the proper interpretation.” 558

U.S. at 251. And as the majority notes, the presumption applies

only when a statute is “reasonably susceptible to divergent

interpretation.” Maj. Op. 16 (quoting Guerrero-Lasprilla, 140

S. Ct. at 1069). The majority does not cite a single case in

which a court employs the presumption at the outset to evade a

clear jurisdiction stripping provision. Maj. Op. 15–17.2 The

533 U.S. 678, 687 (2001) (noting these longstanding limits on

review).

2

The cases cited by the majority provide no support for applying the

presumption to statutory text that explicitly strips jurisdiction. The

majority’s reliance upon Guerrero-Lasprilla is particularly

misleading. Maj. Op. 15. Interpreting the INA’s jurisdictional

provisions, the Court first “consider[ed] the statute’s language.”

Guerrero-Lasprilla, 140 S. Ct. at 1068. Only after concluding that

nothing in the “language of the statute” stripped jurisdiction, did the

Court refer to the presumption. Far from considering the presumption

at the outset or as part of its textual analysis, the Court used it “first”

only in a series of rebuttals against the government’s

counterarguments. Id. at 1069–70. See also SAS Inst., Inc. v. Iancu,

4

Supreme Court employs the presumption in the immigration

context only after examining the text and structure of a

jurisdiction stripping statute and finding an ambiguity, or

sometimes in response to litigants’ counterarguments. See, e.g.,

McNary v. Haitian Refugee Ctr., Inc., 498 U.S. 479, 494–96

(1991) (analyzing first the text of the INA and only employing

the presumption to rebut the petitioner’s argument); see also

Guerrero-Lasprilla, 140 S. Ct. at 1069 (same).

In the non-habeas INA context, this court, like the

Supreme Court, either leaves the presumption of reviewability

as a final consideration or declines to apply it at all. See, e.g.,

Nasrallah v. Barr, No. 18-1432, 2020 WL 2814299, at *8 &

n.5 (U.S. June 1, 2020) (interpreting INA jurisdiction stripping

provision with no mention of the presumption); Kucana, 558

U.S. at 251–52 (looking to the presumption only to resolve

“lingering doubt”); Zhu v. Gonzales, 411 F.3d 292, 294 (D.C.

Cir. 2005) (holding that section 1252(a)(2)(B) stripped

jurisdiction without mentioning the presumption). Whatever

the merits of applying the APA’s presumption of reviewability

to a discretionary immigration policy determination, it can be

employed only as a tiebreaker, a last resort in the face of

ambiguous text. Although the majority places great weight

upon the presumption of reviewability, it has no application

138 S. Ct. 1348, 1359 (2018) (applying a precedent holding that an

administrative no-appeal provision in the America Invents Act does

not preclude judicial review); NetCoalition v. SEC, 715 F.3d 342,

348 (D.C. Cir. 2013) (noting in review of a jurisdiction stripping

provision, “[w]e begin, as we must, with the text of the statute” and

when “[t]he language is not ambiguous … this court simply is not at

liberty to displace, or to improve upon, the jurisdictional choices of

Congress”) (quotation marks omitted); El Paso Natural Gas Co. v.

United States, 632 F.3d 1272, 1276 (D.C. Cir. 2011) (holding that a

statute stripped jurisdiction because it is “not ‘reasonably susceptible

to divergent interpretation’”) (quoting Kucana, 558 U.S. at 251).

5

here, where the statute’s plain meaning is not ambiguous and

not susceptible to divergent interpretations. As discussed

below, Congress could hardly have been clearer in

systematically leaving expedited removal designations to the

Secretary’s discretion and then removing discretionary

decisions from judicial review. The majority ignores a

fundamental constitutional limit on the courts in favor of a

presumption of recent mint and uncertain grounding.3

While courts should not shy from exercising jurisdiction

properly conferred, we cannot decide cases explicitly withheld

from our decision. The Supreme Court has explained that we

must interpret jurisdiction stripping statutes to mean what they

say. Cheng Fan Kwok v. INS, 392 U.S. 206, 212 (1968) (“[A]

jurisdictional statute … must be construed both with precision

and with fidelity to the terms by which Congress has expressed

its wishes.”); Bruner v. United States, 343 U.S. 112, 116 (1952)

(“[W]hen [the] terms [of a jurisdiction stripping statute] are

unambiguous we may not speculate on probabilities of

intention.”) (quoting Merchants’ Ins. Co. v. Ritchie, 72 U.S.

541, 545 (1866)). In the immigration context no less than other

areas, “[j]udicial review provisions … are jurisdictional in

nature and must be construed with strict fidelity to their terms.”

Stone v. INS, 514 U.S. 386, 405 (1995); see also Kokkonen v.

3

The presumption of reviewability is rooted in the Administrative

Procedure Act rather than the Constitution. See Abbott Labs. v.

Gardner, 387 U.S. 136, 140 (1967). It has since drifted into the

jurisdictional setting. See, e.g., Guerrero-Lasprilla, 140 S. Ct. at

1077–78 (Thomas, J., dissenting). The Supreme Court, however, has

long held the presumption in favor of review must yield when it

conflicts with Congress’s plenary power over jurisdiction and the

political branches’ power over immigration. See Heikkila v. Barber,

345 U.S. 229, 234 (1953) (noting that the APA presumption of

reviewability does not displace Congress’s plenary power over

jurisdiction and the political branches’ control over aliens).

6

Guardian Life Ins. Co. of Am., 511 U.S. 375, 377 (1994)

(federal jurisdiction “is not to be expanded by judicial decree”).

A narrow reading of jurisdiction stripping provisions runs the

danger that inferior federal courts will arrogate to themselves a

power withheld by Congress.4 With these principles in mind, I

evaluate whether this court has jurisdiction over plaintiffs’

challenge to the Expansion Designation.

II.

In 1996, “Congress amended the INA aggressively to

expedite removal of aliens lacking a legal basis to remain in the

United States.” Kucana, 558 U.S. at 249. These amendments

to the INA established a category of aliens eligible for an

expedited removal process that substantially shortens the time

between the apprehension and deportation of an illegally

present alien. See Illegal Immigration Reform and Immigrant

Responsibility Act of 1996 (“IIRIRA”), Pub. L. No. 104-208,

§ 302, 110 Stat. 3009-546, 3009-579 (1996) (codified at 8

U.S.C. § 1225). The statutory class includes aliens who entered

the United States unlawfully and have been physically present

in the country for less than a continuous two-year period. 8

U.S.C. § 1225(b)(1)(A)(iii)(II). Section 1225(b) entrusts the

Secretary of Homeland Security with the “sole and

unreviewable” discretion to designate which aliens within the

4

The Supreme Court has long admonished that lower courts should

exercise only the jurisdiction conferred by Congress. Kline v. Burke

Const. Co., 260 U.S. 226, 234 (1922) (“The Constitution simply

gives to the inferior courts the capacity to take jurisdiction in the

enumerated cases, but it requires an act of Congress to confer it. And

the jurisdiction having been conferred may, at the will of Congress,

be taken away in whole or in part.”) (citations omitted); cf. Turner v.

Bank of N. Am., 4 U.S. (4 Dall.) 8, 10 (1799) (“[T]he fair presumption

is … that a cause is without [an inferior federal court’s] jurisdiction,

until the contrary appears.”).

7

statutory class will be subject to expedited removal

proceedings. Id. § 1225(b)(1)(A)(iii)(I). In section 1252, also

added by IIRIRA, Congress reinforced the Secretary’s

authority by stripping the courts of jurisdiction to review

discretionary policies and various other decisions relating to

the expedited removal provisions, subject only to limited

exceptions. See id. §§ 1252(a)(2)(A), (B).

Following the Supreme Court’s approach in Kucana, 558

U.S. 233, which also interpreted section 1252’s jurisdiction

stripping provisions, I look to the text and structure of the INA

and conclude that Congress withdrew judicial review over

plaintiffs’ challenge to the Expansion Designation. First,

section 1252(a)(2)(B) withdraws jurisdiction to review any

decision committed to the Secretary’s discretion by the INA.

See 8 U.S.C. § 1252(a)(2)(B)(ii). Because the Expansion

Designation was committed to the Secretary’s “sole and

unreviewable discretion,” we have no jurisdiction to review it.

See id. § 1225(b)(1)(A)(iii)(I). Second, section 1252(a)(2)(A)

precludes challenges to the Secretary’s policies implementing

expedited removal, unless the challenge is brought in the

context of an individual determination. See id.

§§ 1252(a)(2)(A), 1252(e)(3)(A). Because the Expansion

Designation is a policy implementing expedited removal and

no individual determination has been made here, we have no

jurisdiction under section 1252(a)(2)(A). Finally, there is no

longstanding tradition of judicial review of expedited removal

designations. Contrary to the majority’s strained reading,

Congress stripped jurisdiction from the federal courts to

consider this preenforcement challenge to the Expansion

Designation.

8

A.

While the INA is complex, it unambiguously strips the

federal courts of jurisdiction to review the Secretary’s

Expansion Designation. See Kucana, 558 U.S. at 243–45

(looking first to the INA’s text). Quite simply, Congress left

expedited removal to the Secretary’s discretion and then barred

discretionary decisions from judicial review.

Under the INA, expedited removal designations are

committed to the Secretary’s “sole and unreviewable

discretion.” 8 U.S.C. § 1225(b)(1)(A)(iii)(I). Since the

inclusion of the expedited removal provision, the Secretary has

designated various subgroups of aliens for expedited removal.

See Maj. Op. 7–9. The Expansion Designation under review is

a further exercise of this discretionary authority to extend

expedited removal to inadmissible aliens within “the full

remaining scope of [the Department’s] statutory authority”

subject to “limited exceptions.” 84 Fed. Reg. at 35,409.

Section 1252(a)(2)(B) explicitly shields a wide range of

discretionary decisions from judicial review, namely “any

other decision or action of … the Secretary of Homeland

Security the authority for which is specified under this

subchapter[5] to be in the discretion of … the Secretary.” 8

U.S.C. § 1252(a)(2)(B)(ii). The phrase “any other” “suggests a

broad meaning.” Ali v. Fed. Bureau of Prisons, 552 U.S. 214,

218–19 (2008) (quotation marks omitted). The term “any

other” is so broad the Court has found it displaces “the rule of

ejusdem generis” because such “expansive language offers no

indication whatever that Congress intended [a] limiting

construction” of the class of covered subjects. Harrison v. PPG

5

“[T]his subchapter” refers to 8 U.S.C. §§ 1151–1381. The

expedited removal provision is codified at 8 U.S.C. § 1225.

9

Indus., Inc., 446 U.S. 578, 588–89 (1980). By including the

sweeping phrase “any other,” the statute removes power to

review any discretionary decision assigned to the Secretary by

the INA. See 8 U.S.C. § 1252(a)(2)(B)(ii). As the majority

recognizes, Maj. Op. 32–33, expedited removal designations

are explicitly assigned to the Secretary’s “sole and

unreviewable discretion.” 8 U.S.C. § 1225(b)(1)(A)(iii)(I).

Reading section 1252(a)(2)(B) and the expedited removal

provision together provides a clear statutory directive

withdrawing judicial review over the Secretary’s Expansion

Designation.

Moreover, this interpretation is consistent with the

Supreme Court’s analysis of section 1252(a)(2)(B). In Kucana,

the Court held that the term “any other decision” “barred court

review of discretionary decisions only when Congress itself set

out the [Secretary’s] discretionary authority in the statute.” 558

U.S. at 247 (interpreting 8 U.S.C. § 1252(a)(2)(B)). The Court

defined the type of decisions protected by this “catchall

provision” to broadly include “those made discretionary by

statute” rather than those made discretionary by regulation. Id.

at 246–48. The Expansion Designation unmistakeably fits

within this class because the INA, rather than a regulation,

confers upon the Secretary the “sole and unreviewable

discretion” to designate aliens for expedited removal.

Similarly, in Zhu v. Gonzales, this court enforced section

1252(a)(2)(B)’s jurisdiction stripping provision according to

its terms. 411 F.3d at 294–95. We held it was a discretionary

decision for purposes of section 1252(a)(2)(B) when the

Attorney General6 used his authority to waive certain

6

The Attorney General’s INA authority over the “detention and

removal program” was transferred to the Secretary of Homeland

10

requirements he “deems … to be in the national interest.” Id. at

293 (quoting 8 U.S.C. § 1153(b)(2)(B)(i)). We first noted that

a provision need not specifically use the term “discretion” to

bring a decision within the jurisdictional bar of section

1252(a)(2)(B). Id. at 294–95. It was enough that the statute

entrusted the decision to the Attorney General’s “expertise and

judgment unfettered by any statutory standard whatsoever.” Id.

at 295.7 Here the INA is even more explicit and places the

designation of expedited removal in the “sole and unreviewable

discretion” of the Secretary. The majority’s interpretation

cannot be reconciled with our decision in Zhu.

Moreover, the Court in Kucana clarified that discretionary

decisions such as the Expansion Designation would not be

subject to judicial review. The Court construed the “character

of the decisions” insulated from judicial review by section

1252(a)(2)(B) to include “substantive decisions … made by the

Executive in the immigration context as a matter of grace,

things that involve whether aliens can stay in the country or

not.” Kucana, 558 U.S. at 247 (internal quotation marks

omitted).8 The Secretary’s designation authority over

Security under the Homeland Security Act of 2002. See 6 U.S.C.

§§ 251, 557.

7

After determining “§ 1252(a)(2)(B)(ii) precludes judicial review,”

the Zhu court explained it need not reach the government’s argument

that the Attorney General’s decision was “committed to agency

discretion by law” under the APA. 411 F.3d at 294.

8

In determining that the INA included numerous “decisions falling

within § 1252(a)(2)(B)’s compass,” the Court cited the respondent’s

identification of “over thirty provisions in the relevant subchapter of

the INA” that “explicitly grant the Attorney General … ‘discretion’

to make a certain decision.” Kucana, 558 U.S. at 247 n.14 (quoting

Brief for Respondent 19–20 & n.11). One of the “thirty provisions”

was the expedited removal designation provision at issue here, 8

11

expedited removal involves precisely this type of substantive

discretionary policy. Kucana therefore undermines the

majority’s interpretation of section 1252(a)(2)(B) to cover only

“individualized forms of discretionary relief from removal or

exclusion” and not broader policy decisions such as the

Expansion Designation. Maj. Op. 29. The text plainly bars

judicial review of more than individual claims because it bars

review of “any other decision or action” of the Secretary

“regardless of whether the judgment, decision, or action is

made in removal proceedings.” 8 U.S.C. § 1252(a)(2)(B).

The majority also asserts that the Expansion Designation

is not “of a like kind” as the other decisions covered by section

1252(a)(2)(B), Maj. Op. 27, but the Court expressly defined the

“genre” of decisions shielded from review as “those made

discretionary by legislation.” Kucana, 558 U.S. at 246–47. No

party disputes that the text of the INA, not a regulation, entrusts

the Secretary with discretion over designating aliens for

expedited removal. Therefore, consistent with Kucana,

plaintiffs’ challenge to the Expansion Designation is barred by

section 1252(a)(2)(B).

Finally, the majority’s reliance upon Nasrallah v. Barr,

2020 WL 2814299, is misplaced. Maj. Op. 28, 30. The Court

explicitly stated that its decision “has no effect” on the

jurisdiction stripping provisions of sections 1252(a)(2)(A) and

(B). See Nasrallah, 2020 WL 2814299, at 8 & n.5.9

U.S.C. § 1225(b)(1)(A)(iii)(I). Brief for Respondent 19–20 n.11,

Kucana v. Holder, 2009 WL 2028903 (U.S. 2009).

9

Contrary to the majority’s assertion, Maj. Op. 28, Nasrallah did not

interpret section 1252(a)(2)(B) to apply only to “orders,” a reading

that would ignore the statute’s text, which explicitly applies to “any

other [discretionary] decision or action.” 8 U.S.C. § 1252(a)(2)(B).

The Court addressed section 1252(a)(2)(B) to answer a potential

12

B.

The structure and context of the INA’s jurisdictional

provisions also confirm that the Secretary’s Expansion

Designation is barred from judicial review. Cf. Kucana, 558

U.S. at 245 (looking to statutory context in interpreting section

1252(a)(2)(B)). Section 1252(a)(2) includes two jurisdiction

stripping provisions that are relevant here. As I have already

explained, the Secretary’s Expansion Designation plainly falls

within section 1252(a)(2)(B) because it is a discretionary

policy. The majority maintains, however, that the Expansion

Designation fits only within section 1252(a)(2)(A), which

applies to expedited removal decisions, and that jurisdiction is

preserved through one of the exceptions found in section

1252(e). Maj. Op. 18–25. Yet as the majority’s analysis proves,

the Expansion Designation is both a discretionary action and

an action that pertains to expedited removal, and therefore fits

within both sections 1252(a)(2)(A) and (B). Because both

provisions begin with the clause “Notwithstanding any other

provision of law,” 8 U.S.C. §§ 1252(a)(2)(A), (B), jurisdiction

can be ousted by either provision, but jurisdiction can be

preserved only by finding an exception to both provisions.

This interpretation is directly supported by the Supreme

Court’s recent decision in Nasrallah, which maintains that each

of section 1252(a)(2)’s jurisdiction stripping provisions can

serve as an independent ground to bar jurisdiction. See 2020

WL 2814299, at *8 & n.5 (noting that even if a claim is not

“slippery slope” argument: “If factual challenges to [Convention

Against Torture] orders may be reviewed, what other orders will now

be subject to factual challenges in the courts of appeals?” Nasrallah,

2020 WL 2814299, at *8. In addressing orders, the Court did not

thereby eliminate section 1252(a)(2)(B)’s application to other

discretionary decisions or actions, such as the Expansion

Designation.

13

barred under section 1252(a)(2)(C), it can be independently

barred under sections 1252(a)(2)(A) or (B)). Nasrallah

reinforces that even if jurisdiction over the expedited removal

designation is not precluded by section 1252(a)(2)(A), it is still

independently precluded by section 1252(a)(2)(B).

Thus, even assuming the majority is correct that an

exception to section 1252(a)(2)(A) preserves jurisdiction over

the Expansion Designation, the majority fails to explain how

section 1252(a)(2)(B) does not bar jurisdiction, since it applies

“notwithstanding” anything in section 1252(a)(2)(A). The best

reading of the statute must harmonize the application of both

of these provisions to the Secretary’s Expansion Designation,

because “there can be no justification for needlessly rendering

[these two provisions] in conflict if they can be interpreted

harmoniously.” Antonin Scalia & Bryan A. Garner, READING

LAW: THE INTERPRETATION OF LEGAL TEXTS 180 (2012). The

plain meaning of sections 1252(a)(2)(A) and (B) readily allows

such harmonization because both sections prohibit judicial

review of the Secretary’s designation policies regarding

expedited removal.

Although the jurisdictional ouster in section 1252(a)(2)(B)

is sufficient to bar judicial review of plaintiffs’ claims, it

provides useful context to explain how jurisdiction over the

Expansion Designation is also barred by section 1252(a)(2)(A),

which states that “no court shall have jurisdiction to review …

except as provided in subsection (e), procedures and policies

adopted by the [Secretary] to implement the provisions of

section 1225(b)(1).” 8 U.S.C. § 1252(a)(2)(A)(iv). The

Expansion Designation is a policy adopted by the Secretary to

implement the expedited removal provision, section

1225(b)(1). Therefore, we have no jurisdiction to review the

Designation, unless an exception can be found in section

14

1252(e). Contrary to the majority’s arguments, section 1252(e)

does not save jurisdiction here.

Section 1252(e) covers “Judicial review of orders under

section 1225(b)(1).” Id. § 1252(e). In section 1225(b)(1),

Congress created three classes of decisions: orders of removal,

determinations, and designations. See id. § 1225(b)(1). Orders

of removal and determinations are directed to individual aliens,

while designations apply broadly to “any or all aliens”

designated by the Secretary for expedited removal. Id.

§ 1225(b)(1)(A)(iii)(I). Moreover, the power to enter

determinations and orders of removal is placed in immigration

officers while designations are entrusted exclusively to the

Secretary’s discretion.10 Both section 1252(a)(2)(A) and

section 1252(e) treat these three types of decisions differently.

10

Section 1225(b) authorizes immigration officers to make several

“determination[s],” all of which are made in the context of an

individual alien. For example, immigration officers can “determine[]

that an alien … is inadmissible” and can also “determine[]” whether

“an alien has a credible fear of persecution.” 8 U.S.C.

§§ 1225(b)(1)(A)(i), (b)(1)(B)(ii). Immigration officers may also

enter “orders” of removal to an individual alien. See, e.g., 8 U.S.C.

§ 1225(b)(1)(B)(iii)(I) (“[T]he officer shall order the alien

removed.”). Finally, the Secretary is authorized to make two

“designations”: the expedited removal designation, id.

§ 1225(b)(1)(A)(iii)(I), and the designation of where asylum

interviews will take place, id. § 1225(b)(1)(B)(i). “Designations”

thus differ from “orders” and “determinations” in two ways. First,

they apply broadly rather than in the context of an individual alien.

Second, they are assigned to the Secretary rather than an immigration

officer. Contrary to the majority’s implication, Maj. Op. 25 n.10,

when properly presented with a case concerning the scope of a

statute, judges have an obligation to read the words of that statute,

with or without assistance from the Executive Branch.

15

As relevant here, the Expansion Designation fits within

section 1252(a)(2)(A)(iv), which precludes review of

“procedures and policies” implementing expedited removal,

except as preserved by section 1252(e). Section 1252(e)

expressly addresses orders and determinations. It constrains

review of orders, id. § 1252(e)(5), and grants review of certain

aspects of determinations, id. § 1252(e)(2), (3). Yet section

1252(e) nowhere authorizes judicial review of an expedited

removal “designation.” Instead, it allows courts to review a

“written policy directive,” which arguably would include the

Expansion Designation, but clarifies that such review is

authorized solely in the context of individual “determinations

under section 1225(b) … and its implementation.” Id.

§ 1252(e)(3)(A). Thus, an expedited removal “determination”

is a necessary condition to obtain judicial review of a policy

regarding expedited removal.

Section 1252(e) simply does not address designations,

which are discretionary policies of the Secretary; rather it

explicitly preserves judicial review of policies only in the

context of “determinations,” a term with a specific meaning

under section 1225(b). See supra n.10. Contrary to the

majority, the term “its implementation” cannot be read

expansively to include the Secretary’s “designations,” because

these are a separate category of decisions regarding expedited

removal.11 It would be inconsistent with the text and structure

11

The majority reads section 1252(e)’s authorization of challenges

to “determinations under section 1225(b) … and its implementation”

to allow for a preenforcement challenge to designations in the

absence of an individual determination. This reading, however,

renders the term “determinations” surplusage. Section 1252(e)

allows a court to overturn an individual determination only on the

ground that a written policy or procedure is contrary to law; it does

not allow an alien to challenge the factual or legal conclusions

underpinning the determination. The “determination” is thus the

16

of the statute for Congress to permit preenforcement challenges

to policies such as the Expansion Designation in a subpart that

allows limited review only of individual determinations.

Because section 1252(e) does not revive jurisdiction for

preenforcement challenges to designation policies, the

Expansion Designation cannot be reviewed under the plain

meaning of section 1252(a)(2)(A), which bars judicial review

of policies implementing expedited removal. See 8 U.S.C.

§ 1252(a)(2)(A)(iv).

Thus, both sections 1252(a)(2)(A) and (B) bar judicial

review of this suit.12 Congress coherently and systematically

removed jurisdiction to review the Secretary’s Expansion

Designation in the absence of any affected individual. As this

court has previously explained, the structure of section 1252

necessary procedural vehicle to challenge policies implementing the

INA. If an alien or group could rely on the phrase “its

implementation” to bring a challenge absent an individual

determination, the term “determinations under section 1225(b)”

would be superfluous. 8 U.S.C. § 1252(e)(3)(A); see also Am.

Immigration Lawyers Ass’n (AILA) v. Reno, 199 F.3d 1352, 1359–

60 (D.C. Cir. 2000).

12

The majority’s attempt to use the general-specific canon of

interpretation, Maj. Op. 30 n.13, fails because the canon applies only

when statutory provisions conflict. See READING LAW 183 (general-

specific canon applies only “when the attribution of no permissible

meaning can eliminate the conflict”). Here the provisions read

together create no conflict, but instead consistently strip the courts of

jurisdiction over plaintiffs’ preenforcement suit. Moreover, it is

hardly clear that one provision here is general and the other specific.

Compare 8 U.S.C. § 1252(a)(2)(A) (addressing expedited removal),

with id. § 1252(a)(2)(B) (addressing discretionary decisions). The

Expansion Designation is both an expedited removal policy and a

discretionary policy, a fact the majority’s reading cannot square.

17

demonstrates that “Congress meant to allow actions only by

aliens who have been subjected to the summary procedures

contained in § 1225(b) and its implementing regulations.” Am.

Immigration Lawyers Ass’n (AILA) v. Reno, 199 F.3d 1352,

1359 (D.C. Cir. 2000).

In addition, the majority mistakenly relies on section

1252(a)(2)(D).13 Maj. Op. 29–30. This section allows review

of certain constitutional and legal claims “raised upon a

petition for review filed with an appropriate court of appeals.”

8 U.S.C. § 1252(a)(2)(D). But it has no applicability to

expedited removal designations, which can be reviewed, if at

all, only in an action brought in federal district court pursuant

to the procedures set forth in section 1252(e). See 8 U.S.C.

§ 1252(a)(2)(A). To the extent the majority suggests the

structure of section 1252(a)(2) evinces a commitment to

preserve review, the Supreme Court has reached precisely the

opposite conclusion: “[M]any provisions of IIRIRA are aimed

at protecting the Executive’s discretion from the courts—

indeed, that can fairly be said to be the theme of the

legislation.” Reno v. Am.-Arab Anti-Discrimination Comm.,

525 U.S. 471, 486–87 (1999) (citing, inter alia, 8 U.S.C.

§§ 1252(a)(2)(A), (B)).

Reading on in the statute, section 1252(f) further confirms

that courts cannot engage in preenforcement review of the legal

13

Congress added section 1252(a)(2)(D) to provide an “adequate

substitute for habeas.” Guerrero-Lasprilla, 140 S. Ct. at 1071–72

(internal quotation marks omitted). Contrary to the majority’s

assertion, Maj. Op. 29–30, this provision tells us little about this case

because “[i]mmigration law has long drawn a distinction between …

declaratory and injunctive relief … and habeas relief.” Jennings, 138

S. Ct. at 858 (Thomas, J., concurring in part and concurring in the

judgment) (citing INS v. St. Cyr, 533 U.S. 289, 309–10 (2001)); see

also Heikkila, 345 U.S. at 230.

18

validity of an expedited removal designation. 8 U.S.C.

§ 1252(f)(1). Section 1252(f) allows for injunctive relief only

“with respect to the application of such provisions to an

individual alien against whom proceedings under such part

have been initiated.” Id. Yet no individual proceedings have

been initiated against any member of the plaintiff

organizations. Cf. AILA, 199 F.3d at 1359 (noting that section

1252(f) bolsters the conclusion that “Congress must have

contemplated that lawsuits challenging its enactment would be

brought, if at all, by individual aliens who … were aggrieved

by the statute’s implementation”).

Congress cannot confer jurisdiction on the courts to issue

a merely advisory opinion; but that would be the consequence

of reading section 1252(e)(3)(A) to confer jurisdiction over

plaintiffs’ suit. Even if the court found the Expansion

Designation to be unlawful, it is precluded from providing any

injunctive relief. See 8 U.S.C. § 1252(f)(1); cf. AILA, 199 F.3d

at 1359–60 (“Congress meant to allow litigation challenging

the new system by, and only by, aliens against whom the new

procedures had been applied.”).

The text and structure of the INA’s jurisdiction stripping

provisions demonstrate that we lack the authority to review

plaintiffs’ claims regarding the Expansion Designation.

C.

Reading the INA’s jurisdictional bars to bar jurisdiction is

further supported by the fact that there is no “longstanding

exercise of judicial review” of expedited removal designations.

Kucana, 558 U.S. at 237. Twenty years ago, this court upheld

the expedited removal system generally against constitutional

challenge. See AILA, 199 F.3d 1352. Since that time, no court

has examined the merits of the Secretary’s expedited removal

designations. See 82 Fed. Reg. 4,902 (Jan. 17, 2017); 69 Fed.

19

Reg. 48,877 (Aug. 11, 2004); 67 Fed. Reg. 68,924 (Nov. 13,

2002). Moreover, the Expansion Designation is not like the

individual immigration determinations courts generally

review. Instead, it is more like an enforcement policy, because

the agency must balance different factors, including ordering

its immigration priorities, contending with limited resources,

and fulfilling statutory requirements. Cf. Heckler v. Chaney,

470 U.S. 821, 831–32 (1985).

In the Expansion Designation, the Secretary made clear he

was exercising his discretion pursuant to his statutory authority

under the INA and “issuing the New Designation to use more

effectively and efficiently [the agency’s] limited resources to

fulfill its mission to enforce the immigration laws and ensure

the security of the Nation’s borders.” 84 Fed. Reg. at 35,411.

Exercises of enforcement discretion are not ordinarily subject

to judicial review. See, e.g., Ass’n of Irritated Residents v. EPA,

494 F.3d 1027, 1032 (D.C. Cir. 2007) (“These [enforcement]

judgments—arising from considerations of resource allocation,

agency priorities, and costs of alternatives—are well within the

agency’s expertise and discretion.”); Brock v. Cathedral Bluffs

Shale Oil Co., 796 F.2d 533, 538 (D.C. Cir. 1986) (Scalia, J.)

(“[T]he statement here in question pertains to an agency’s

exercise of its enforcement discretion—an area in which the

courts have traditionally been most reluctant to interfere.”).

The INA leaves expedited removal designations to the

“sole and unreviewable discretion” of the Secretary and he may

modify them “at any time.” 8 U.S.C. § 1225(b)(1)(A)(iii)(I).

Congress clearly placed designations within the class of

discretionary enforcement policies not traditionally subject to

judicial review. Cf. Kucana, 558 U.S. at 237. Such an explicit

conferral of discretion “reflects a congressional recognition”

that the Secretary “can make necessary adjustments for

unforeseen developments and changing requirements” without

20

judicial interference. Lincoln v. Vigil, 508 U.S. 182, 193 (1993)

(internal quotation marks omitted). This historical lack of

judicial review reinforces the plain meaning of the text and

structure of the INA to preclude review of the Secretary’s

Expansion Designation. See Kucana, 558 U.S. at 251–52.

***

The majority concludes that plaintiffs’ claims are not

barred and are properly reviewed under (apparently) either

general federal question jurisdiction or jurisdiction conferred

directly by the INA. Maj. Op. 18 (citing 28 U.S.C. § 1331), 39

(citing 8 U.S.C. § 1252(e)). Yet the INA strips jurisdiction over

discretionary decisions as well as policies to implement

expedited removal absent an individual “determination.” These

provisions separately and independently preclude judicial

review of the Expansion Designation and apply

“notwithstanding any other provision of law.” See 8 U.S.C.

§§ 1252(a)(2)(A), (B). This means the INA’s jurisdictional

ousters apply notwithstanding general federal question

jurisdiction under section 1331. See Patchak, 138 S. Ct. at 905.

In sum, neither the INA nor section 1331 allow us to exercise

jurisdiction over plaintiffs’ suit.

III.

Even on the majority’s view that the district court had

jurisdiction over plaintiffs’ suit, the INA categorically

prohibits injunctive relief absent proceedings against an

individual alien. The anti-injunction provision states in full:

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

21

of part IV of this subchapter,[14] as amended by

the [IIRIRA], 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). This provision speaks in the broadest

possible terms and unambiguously prohibits the

preenforcement injunction the district court entered here.

The expedited removal provision allows the Secretary in

his “sole and unreviewable discretion” to designate classes of

aliens up to the statutory maximum for expedited removal “at

any time.” Id. § 1225(b)(1)(A)(iii)(I). The Secretary is

entrusted with carrying this provision into operation. See id. By

enjoining the Secretary’s Expansion Designation, the district

court “enjoin[ed] … the operation” of the expedited removal

provision. See Nken v. Holder, 556 U.S. 418, 431–32 (2009)

(noting the anti-injunction provision demonstrates

congressional “concern[] about the possibility that courts

would enjoin application of particular provisions of the INA”).

The anti-injunction provision carves out a single exception

for “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). Here, the exception has not

been triggered because expedited removal proceedings have

not “been initiated” against any member of the plaintiff

organizations, nor indeed, against any individual. Thus, no

court “other than the Supreme Court” has jurisdiction to enjoin

the operation of the Expansion Designation. Id.; see American-

Arab Anti-Discrimination Comm., 525 U.S. at 481–82 (the

14

“[P]art IV of this subchapter” refers to 8 U.S.C. §§ 1221–1231.

The expedited removal provision is codified as 8 U.S.C. § 1225.

22

anti-injunction provision “is nothing more or less than a limit

on injunctive relief”); Padilla v. ICE, 953 F.3d 1134, 1150 (9th

Cir. 2020) (“Congress intended [the anti-injunction provision]

to prohibit injunctive relief with respect to organizational

plaintiffs.”). The anti-injunction provision thus runs in parallel

to the jurisdiction stripping provisions, which allow judicial

review only in the context of concrete individual

“determinations.” See 8 U.S.C. §§ 1252(a)(2)(A), 1252(e)(3).

The district court reached an opposite conclusion by

relying on a dubious distinction between enjoining the statute

and enjoining the Secretary from carrying the statute into

operation. See Make the Rd. New York v. McAleenan, 405 F.

Supp. 3d 1, 68 n.37 (D.D.C. 2019). If the anti-injunction

provision applies only to injunctions restraining the statutory

text, it is a nullity, indeed an absurdity, because injunctions run

against an officer, not statutory text. The anti-injunction

provision prohibits injunctions restraining “the operation of the

provisions of part IV of this subchapter.” 8 U.S.C. § 1252(f)(1).

Of course the Expansion Designation is not part of the statute;

however, designations are the mechanism by which the

Secretary carries his expedited removal authority into

“operation.” By enjoining the Secretary from issuing the

Expansion Designation, the district court “enjoin[ed] or

restrain[ed] the operation of” the expedited removal

designation provision in violation of the INA.15 The district

15

The Sixth Circuit rejected a similar argument that “the district

court was not enjoining or restraining the statutes” under section

1252(f)(1) as “implausible on its face” because “[t]he district court

… created out of thin air a requirement … that does not exist in the

statute; and adopted standards that the government must meet.”

Hamama v. Adducci, 912 F.3d 869, 879–80 (6th Cir. 2018). So too

here. “If these limitations on what the government can and cannot do

under the … provision are not ‘restraints,’ it is not at all clear what

would qualify as a restraint” under section 1252(f). Id.

23

court thus not only lacked jurisdiction over the case, it also

lacked jurisdiction to enter this injunctive remedy.16

***

Although I generally agree with the majority’s conclusion

that the expedited removal designation is committed to agency

discretion by law, we have an antecedent duty to ensure

jurisdiction. Here, the INA unambiguously withholds

jurisdiction over plaintiffs’ suit to enjoin the Expansion

Designation. Courts must respect limits on their jurisdiction,

particularly in areas such as immigration that implicate power

traditionally wielded by the political branches. See Fiallo v.

Bell, 430 U.S. 787, 792 (1977) (“[T]he power to expel or

exclude aliens [is] a fundamental sovereign attribute exercised

by the Government’s political departments largely immune

from judicial control.”) (quotation marks omitted); Heikkila,

345 U.S. at 233–34 (noting the “peculiarly political nature of

the legislative power over aliens”). Decisions of the Supreme

Court and this circuit have consistently read the INA’s

jurisdiction stripping provisions to mean what they say.

16

The district court’s entry of nationwide relief is particularly

egregious in light of the INA’s anti-injunction provision, which

explicitly limits relief to an alien “against whom proceedings … have

been initiated.” 8 U.S.C. § 1252(f)(1). While the legality of

nationwide injunctions is in doubt under both the Constitution and

federal statutes, see Trump v. Hawaii, 138 S. Ct. 2392, 2424–29

(2018) (Thomas, J., concurring), it is especially problematic here

given the INA’s unambiguous foreclosure of any injunctive relief

outside a proceeding against an individual alien. Rather than limiting

relief to individual affected aliens, as required by the statute, the

district court upended the Secretary’s discretion through a “cosmic”

injunction extending across the land. DHS v. New York, 140 S. Ct.

599, 600 (2020) (Gorsuch, J., concurring in the grant of stay).

24

In light of these precedents, the majority manages to “knit”

together an argument to preserve jurisdiction only by glossing

over the plain meaning of the INA and relying on the

presumption of judicial review. Maj. Op. 18. Yet because

Congress possesses plenary authority over the jurisdiction of

the lower federal courts, the presumption of reviewability must

yield to a clear statement removing jurisdiction. “[W]hat the

Congress gives, the Congress may take away.” Knapp Medical

Center v. Hargan, 875 F.3d 1125, 1128 (D.C. Cir. 2017). With

respect to expedited removal, Congress was crystal clear in

conferring designations to the Secretary’s discretion and

barring our review over preenforcement challenges. By

disregarding the INA’s multi-layered jurisdictional bar, the

majority encroaches upon Congress’s plenary power over

jurisdiction and upon the political branches’ authority over

immigration. We witness yet another marker on the road to

government by injunction. I respectfully dissent.