Make the Road New York v. Markwayne Mullin, Secretary of the U.s. Department of Homeland Security

United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT
Argued December 9, 2025 Decided June 23, 2026
No. 25-5320
MAKE THE ROAD NEW YORK, ET AL.,
APPELLEES
v.
MARKWAYNE MULLIN, SECRETARY OF THE U.S. DEPARTMENT
OF HOMELAND SECURITY, IN HIS OFFICIAL CAPACITY, ET AL.,
APPELLANTS
Appeal from the United States District Court
for the District of Columbia
(No. 1:25-cv-00190)
Drew C. Ensign, Deputy Assistant Attorney General, U.S.
Department of Justice, argued the cause for appellants. With
him on the briefs were Brett A. Shumate, Assistant Attorney
General, Tyler J. Becker, Counsel to the Assistant Attorney
General, and Elissa Fudim, Joseph McCarter, and Caroline
McGuire, Attorneys.
Christopher J. Hajec and Matt A. Crapo were on the brief
for amicus curiae Federation for American Immigration
Reform in support of defendants-appellants.

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Anand Balakrishnan argued the cause for appellees. With
him on the brief were Morgan Russell, Hannah Steinberg,
Michael K.T. Tan, Cody Wofsy, Lucia Goin, Sidra Mahfooz,
Omar C. Jadwat, Lee Gelernt, Arthur B. Spitzer, and Aditi
Shah.
Rob Bonta, Attorney General, Office of the Attorney
General for the State of California, Vilma Palma-Solana,
Supervising Deputy Attorney General, Kristin K. Mayes,
Attorney General, Office of the Attorney General for the State
of Arizona, Kathleen Jennings, Attorney General, Office of the
Attorney General for the State of Delaware, Anne E. Lopez,
Attorney General, Office of the Attorney General for the State
of Hawai’i, Aaron M. Frey, Attorney General, Office of the
Attorney General for the State of Maine, Andrea Joy Campbell,
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, Philip J. Weiser, Attorney General, Office of the
Attorney General for the State of Colorado, William Tong,
Attorney General, Office of the Attorney General for the State
of Connecticut, Kwame Raoul, Attorney General, Office of the
Attorney General for the State of Illinois, Anthony G. Brown,
Attorney General, Office of the Attorney General for the State
of Maryland, Dana Nessel, Attorney General, Office of the
Attorney General for the State of Michigan, Aaron D. Ford,
Attorney General, Office of the Attorney General for the State
of Nevada, Matthew J. Platkin, Attorney General, Office of the
Attorney General for the State of New Jersey, Letitia James,
Attorney General, Office of the Attorney General for the State
of New York, Charity R. Clark, Attorney General, Office of
the Attorney General for the State of Vermont, Brian L.
Schwalb, Attorney General, Office of the Attorney General for
the District of Columbia, Raul Torrez, Attorney General,
Office of the Attorney General for the State of New Mexico,

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Dan Rayfield, Attorney General, Office of the Attorney
General for the State of Oregon, and Nicholas W. Brown,
Attorney General, Office of the Attorney General for the State
of Washington, were on the brief for amici curiae States of
California, et al. in support of appellees.
Before: WILKINS, RAO and WALKER, Circuit Judges.
Opinion for the Court filed by Circuit Judge WALKER, in
which WILKINS, J., joins as to Parts I, II and IV, and in which
RAO, J., joins as to Parts I–III, IV.B, and V.
Opinion concurring in the judgment by Circuit Judge RAO,
in which WALKER, J., joins as to Part II.A.
Opinion concurring in part and dissenting in part by
Circuit Judge WILKINS.
WALKER, Circuit Judge: Thirty years ago, Congress
created a new process for deporting illegal aliens. It is called
“expedited removal.” Unlike other statutorily required
procedures that can take years to complete, expedited removal
often takes just a few days.
At issue here is the provision allowing the Secretary of
Homeland Security to designate certain aliens already in the
country for expedited removal. Congress excluded many
people from that provision. Any aliens admitted or paroled are
excluded, even if they are here illegally. So too is anyone who
can prove he has lived here — legally or illegally — for at least
two straight years.
As for whether to designate other aliens for expedited
removal, Congress let the Executive decide. And for many
years, while some were designated, others were not. But that

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changed in January 2025 when the Executive expanded
expedited removal to the maximum extent allowed by
Congress.
The district court stayed the expansion, holding that it
likely violated due process.
Because it does not, we vacate the stay.
I. Background on Expedited Removal
A. Statutory Scheme
As its name suggests, “expedited removal” authorizes the
rapid removal of certain aliens. Subject to various limitations,
that generally includes two groups: first, those “arriving in the
United States,” 8 U.S.C. § 1225(b)(1)(A)(i); second, those
already in the United States who were not admitted or paroled
and who cannot show continuous physical presence for at least
two years, if the Secretary of Homeland Security so designates.
Id. § 1225(b)(1)(A)(iii).
The expedited-removal process begins with an inspection
by an immigration officer. If the officer finds the alien
inadmissible and no exception applies, the officer must order
removal without a hearing before an immigration judge and
without ordinary administrative review. Id.
§ 1225(b)(1)(A)(i). Before issuing a removal order, the officer
must advise the alien of the charges and allow a response in a
sworn statement. 8 C.F.R. § 235.3(b)(2)(i). Interpretive
assistance must be provided if needed. Id. The removal order
and related documents “must be reviewed and approved by [a]
supervisor” before becoming final. Id. § 235.3(b)(7).
A person may claim that expedited removal does not apply
to him. For example, he may claim U.S. citizenship, lawful

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permanent resident status, refugee or asylee status, admission
or parole, or sufficient continuous physical presence. 8 U.S.C.
§ 1225(b)(1)(A)(iii)(II), (1)(C); 8 C.F.R. § 235.3(b)(5). The
regulations allow the person to present evidence in support of
these claims. 8 C.F.R. § 235.3(b)(6)–(7).
The parties agree that — at least when the executive has
not exercised his discretion in a way that categorically bars
asylum — the statute provides for the following regime. See
Appellants’ Brief at 8–12; Appellees’ Brief at 4–6; cf. Huisha-
Huisha v. Mayorkas, 27 F.4th 718, 730–31 (D.C. Cir. 2022);
Refugee & Immigrant Center for Education & Legal Services
v. Mullin, 174 F.4th 81, 105–11 (D.C. Cir. 2026) (addressing
whether executive action may foreclose the statutory
opportunity to apply for asylum). If an alien expresses fear of
persecution or torture, or an intent to apply for asylum, the alien
is referred to a non-adversarial “credible fear” interview with
an asylum officer who decides whether there is a significant
possibility that the alien could establish eligibility for asylum
or related protection. 8 C.F.R. §§ 208.30(e), 235.3(b)(4); 8
U.S.C. § 1225(b)(1)(A)(ii).
Under that system, if the asylum officer finds no credible
fear, a supervisor reviews that decision. 8 C.F.R.
§ 235.3(b)(7). If the supervisor agrees, the alien may request
review by an immigration judge. 8 U.S.C.
§ 1225(b)(1)(B)(iii)(III). The judge reviews the issue de novo.
8 C.F.R. § 1003.42(c). If the judge also finds no credible fear,
the expedited removal order becomes final. Id.
§ 1003.42(f)(2).
If credible fear is found at any stage, the alien must be
detained for further consideration of the asylum application.
8 U.S.C. § 1225(b)(1)(B)(ii). United States Citizenship and
Immigration Services has “complete discretion” over how to

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proceed. 8 C.F.R. § 208.30(f). It may place the alien into
regular (non-expedited) removal proceedings before an
immigration judge or instead retain jurisdiction over the
asylum application. Id. If USCIS retains jurisdiction, it
follows the procedures set out in 8 C.F.R. § 208.9 to assess the
alien’s eligibility for asylum, withholding of removal, or
protection under the Convention Against Torture. See
8 U.S.C. §§ 1225(b)(1), 1158(a), 1231(b)(3); FARRA § 2242;
8 C.F.R. §§ 1208.16–18. Other forms of relief are available
only in regular removal proceedings.
Judicial review of individual expedited-removal orders is
narrow. See id. § 1252(a)(2)(A), (e). Through habeas corpus,
a court may consider only whether the petitioner is an alien,
whether an expedited-removal order was issued, and whether
the petitioner has lawful-permanent-resident, refugee, or asylee
status. Id. § 1252(e)(2); 28 U.S.C. § 2241(c) (conferring
jurisdiction). Courts may not review the underlying
determination of inadmissibility or the credible-fear
determination. 8 U.S.C. § 1252(e)(5).
Congress has also provided limited judicial review of the
expedited-removal system itself. Challenges to the lawfulness
of the statute, regulations, or certain written policies must be
brought in the United States District Court for the District of
Columbia and within the time limits set by statute. Id.
§ 1252(e)(3).
Detention during expedited removal is generally
mandatory. 8 U.S.C. § 1225(b)(1)(B)(iii)(IV); 8 C.F.R.
§ 235.3(b)(2)(iii). The process operates on a short timeline.
Decisions and removals often occur within days, and
sometimes sooner. Hartzler Dec. ¶ 13, Make the Road New
York v. Noem, No. 1:25-cv-90 (D.D.C. June 10, 2025), ECF
No. 50-13.

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B. History of Executive Branch Policies
Since the creation of expedited removal, the Executive has
implemented it through a series of Federal Register
designations. Those designations have defined which aliens
may be placed in expedited removal and under what conditions.
A designation in 1997 applied expedited removal to aliens
arriving at ports of entry and to those interdicted at sea.
Inspection and Expedited Removal of Aliens; Detention and
Removal of Aliens; Conduct of Removal Proceedings; Asylum
Procedures, 62 Fed. Reg. 10,312 (Mar. 6, 1997). The Attorney
General noted that the statute permitted future expansion and
that any such expansion would depend on enforcement needs
and available resources. Id. at 10,314.
A 2002 designation expanded expedited removal to certain
aliens who arrived in the United States by sea, were not
admitted or paroled, and could not show two years of
continuous physical presence. Notice Designating Aliens
Subject to Expedited Removal Under Section 235(b)(1)(A)(iii)
of the Immigration and Nationality Act, 67 Fed. Reg. 68,924
(Nov. 13, 2002).
In 2004, the Secretary of Homeland Security expanded the
application of expedited removal to all qualifying aliens
encountered within 100 miles of the border and within fourteen
days of entry. Designating Aliens for Expedited Removal, 69
Fed. Reg. 48,877 (Aug. 11, 2004). That designation did not
limit its application to certain methods of arrival as the previous
ones had. The Secretary explained that because he wanted to
focus enforcement resources, he was not expanding the
designation beyond those time and distance parameters. Id. at
48,879.

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In 2017, the Secretary extended existing expedited-
removal designations to Cuban nationals, who had previously
been exempt. Eliminating Exception To Expedited Removal
Authority for Cuban Nationals Encountered in the United
States or Arriving by Sea, 82 Fed. Reg. 4,902 (Jan. 17, 2017).
In July 2019, DHS issued a new designation. It authorized
expedited removal for certain aliens encountered anywhere in
the United States — not just within 100 miles of the
border — who had not been admitted or paroled and who did
not show two years of continuous physical presence.
Designating Aliens for Expedited Removal, 84 Fed. Reg.
35,409 (July 23, 2019). The 2019 designation was
preliminarily enjoined about two months after it was issued.
See Make the Road N.Y. v. McAleenan, 405 F. Supp. 3d 1, 72
(D.D.C. Sept. 27, 2019). This court reversed the preliminary
injunction. Make the Road N.Y. v. Wolf, 962 F.3d 612, 618
(D.C. Cir. 2020).
In March 2022, DHS rescinded the 2019 designation.
Rescission of the Notice of July 23, 2019, Designating Aliens
for Expedited Removal, 87 Fed. Reg. 16,022 (Mar. 21, 2022).
During the period it was in effect, it was reportedly applied to
twenty-one aliens. Aleaziz, The Biden Administration Has
Suspended a Trump-Era Policy That Put Immigrants at Risk of
Being Deported Without Due Process, BuzzFeed News (Oct.
14, 2021), reprinted in Steinberg Decl. ¶ 13, Make the Road
N.Y. v. Noem, No. 1:25-cv-90 (D.D.C. June 10, 2025), ECF No.
50-23, at 250–51.
All other prior expedited-removal designations remained
in effect after the rescission.

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II. The Facts of This Case
A. DHS’s 2025 Expansion of Expedited Removal
On January 21, 2025, Acting Secretary of Homeland
Security Benjamin Huffman issued a notice authorizing the use
of expedited removal nationwide for certain aliens who cannot
demonstrate continuous physical presence in the United States
for at least two years. Designating Aliens for Expedited
Removal, 90 Fed. Reg. 8,139 (Jan. 24, 2025).1
Under the 2025 Designation, DHS may place in expedited
removal, with limited exceptions, aliens who are inadmissible
because they lack valid documentation or entered via fraud or
willful misrepresentation, have not been admitted or paroled,
and have not affirmatively shown, to the satisfaction of an
immigration officer, that they have been continuously present
in the United States for the two years immediately preceding
the determination of inadmissibility. Id.; 8 U.S.C.
§ 1182(a)(6)(C) (fraud or misrepresentation), (a)(7)
(documentation requirement).
In practical terms, the Designation extended expedited
removal to all aliens eligible for expedited removal under the
statute who were not already covered by prior designations.
DHS thereby exercised its discretion to apply its expedited-
removal authority to the maximum extent allowed by law.
The notice stated that the Designation would “enhance
national security and public safety — while reducing
government costs — by facilitating prompt immigration
determinations.” Designating Aliens for Expedited Removal,
1 The notice rescinded the 2022 rescission of the 2019 designation.
Designating Aliens for Expedited Removal, 90 Fed. Reg. at 8,139.

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90 Fed. Reg. at 8,139. It also stated that the expanded use of
expedited removal would allow DHS to address more
effectively “the large volume of aliens who are present in the
United States unlawfully” and to ensure their prompt removal.
Id.
On January 23, 2025, Acting Secretary Huffman issued an
internal memorandum providing guidance on how to
implement the Designation. The Huffman Memorandum
directs immigration officers to take all steps necessary to
review an alien’s case and to evaluate whether the alien should
be placed in expedited removal. It instructs officers to consider
applying expedited removal to any alien who is “amenable” to
that process. Department of Homeland Security, Guidance
Regarding How to Exercise Enforcement Discretion (Jan. 23,
2025), perma.cc/X7EG-WKZ7.
In addition, the memorandum addresses how officers
should exercise enforcement discretion in implementing the
expanded authority. It encourages them to consider a range of
factors, including whether an individual is eligible for
expedited removal and whether the individual failed to apply
for asylum within the statutory deadline.
The memorandum thus functions as an operational
directive. It does not itself expand the statutory scope of
expedited removal. Instead, it guides officers in identifying
cases in which expedited-removal procedures may be
appropriate under the 2025 Designation and existing law.
B. This Case’s Procedural History
Make the Road New York filed this action challenging the
2025 Designation and the Huffman Memorandum. The
complaint asserted statutory and constitutional claims,

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including a claim that the Designation and Huffman
Memorandum violate the Due Process Clause. It alleged
standing on behalf of its members, asserting that some were
subject to expedited removal under the 2025 Designation.2
In June 2025, Make the Road moved to postpone the
effective date of the Designation and Huffman Memorandum
under 5 U.S.C. § 705.3 The district court granted the § 705 stay
in August 2025. Applying the framework of Mathews v.
Eldridge, it concluded that Make the Road was likely to
succeed on its due process claim because aliens subject to
expedited removal have a significant liberty interest in
remaining in the United States and face a substantial risk of
erroneous deprivation of this interest under the procedures
established by the Designation and Huffman Memorandum.
The district court identified three principal areas of risk:
1. The procedures for referring individuals who fear
removal for credible-fear interviews.
2. The credible-fear interviews themselves.
3. The procedures for determining whether an alien
has been continuously present in the United States
for two years.
The court concluded that the Government’s interest in
swift removals did not outweigh the value of additional
2 The complaint also named two individual plaintiffs, Mary and John
Doe. They alleged that they were placed in expedited-removal
proceedings and removed under the Designation and the Huffman
Memorandum.
3 The individual plaintiffs did not seek relief in that motion.

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procedural safeguards. It also determined that equitable factors
favored relief.
By its terms, the order “postponed and stayed” without
qualification “the effective dates of implementation and
enforcement” of the 2025 Designation and the Huffman
Memorandum. Order, Make the Road N.Y. v. Noem, No. 1:25-
cv-190 (D.D.C. Aug. 29, 2025), ECF No. 65. The stay thus
applied on a nationwide basis. It was not limited to Make the
Road or its members.
The Government filed an emergency motion in this court
for an administrative stay and a stay pending appeal. The court
denied the motion for an administrative stay, granted in part the
motion for a stay pending appeal, and denied it in part. Order,
Make the Road N.Y. v. Noem, No. 25-5320, 2025 WL 3563313
at *1 (D.C. Cir. Nov. 22, 2025). Judge Rao dissented, stating
that the district court lacked authority to enter the § 705 stay.
Id. at *45 (Rao, J., dissenting).
III. Standard of Review and Summary of Analysis
“The factors to be considered in determining whether a
stay is warranted are: (1) the likelihood that the party seeking
the stay will prevail on the merits of the appeal; (2) the
likelihood that the moving party will be irreparably harmed
absent a stay; (3) the prospect that others will be harmed if the
court grants the stay; and (4) the public interest in granting the
stay.” Cuomo v. NRC, 772 F.2d 972, 974 (D.C. Cir. 1985).
In the nearly two decades since the Supreme Court decided
Winter v. NRDC, 555 U.S. 7 (2008), and Nken v. Holder, 556
U.S. 418 (2009), our circuit has not had occasion to decide
whether, as those opinions at least suggest, the party moving
for a preliminary injunction (Winter) or a stay (Nken) needs to

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show that the party is likely to succeed on the merits, and that
the party is irreparably harmed, and that the balance of equities
favors that party. In other words, we have not decided if the
movant’s failure to establish any one of the factors dooms the
motion or if instead we can apply a sliding-scale approach (as
we did before Winter and Nken).
Nor do we need to decide so today because Make the Road
has not satisfied the more movant-friendly, sliding-scale
standard. First, it is not likely to prevail on the merits. See
infra, Part V. Second, lawful “removal alone cannot constitute
the requisite irreparable injury.” Nken, 556 U.S. at 435. Third,
the Government is harmed by “an improper intrusion by a
federal court into the workings of a coordinate branch of the
Government.” INS v. Legalization Assistance Project, 510
U.S. 1301, 1305-06 (1993) (O’Connor J., in chambers). And
fourth, when removal is lawful, the public has an “interest in
prompt execution of removal orders.” Nken, 556 U.S. at 436.
Because the application of the second, third, and fourth
factors are well established in the context of alien removals, the
rest of this opinion focuses on the first factor — Make the
Road’s failure to show that it is likely to succeed on the merits.
IV. Jurisdiction, Standing, Timeliness, and the District
Court’s Authority to Issue a Stay
Before turning to whether Make the Road has shown that
the challenged agency actions likely violate due process, we
discuss four threshold issues: (A) jurisdiction; (B) standing;
(C) timeliness; and (D) the district court’s authority to issue a
stay. None of those issues blocked the district court from
proceeding as it did.

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A. Jurisdiction
First, jurisdiction. The district court had jurisdiction under
8 U.S.C. § 1252(e)(3).
Section 1252 tightly restricts judicial review of expedited
removal. It bars review of individual removal orders, subject
to narrow exceptions not relevant here. See 8 U.S.C.
§ 1252(a)(2)(A), (e)(2). And it commits the Secretary’s
decision whether to designate classes of aliens for expedited
removal to the Secretary’s “sole and unreviewable discretion.”
Id. § 1225(b)(1)(A)(iii)(I); see also id. § 1252(a)(2)(A)(ii);
Make the Road New York v. Wolf, 962 F.3d 612, 631–34 (D.C.
Cir. 2020) (“Make the Road I”) (holding that courts may not
second-guess the Secretary’s policy judgment).
But the statute does not eliminate all judicial review.
Instead, § 1252(e)(3) channels to the District Court of the
District of Columbia claims that the expedited-removal statute,
its implementing regulations, or any “written policy directive,
written policy guideline, or written procedure” is
unconstitutional, inconsistent with the INA, or otherwise
contrary to law. 8 U.S.C. § 1252(e)(3)(A).
Under Make the Road I, this suit falls within that preserved
category.4 The Plaintiffs challenge two “written policy
directive[s]”: the January 21, 2025 Designation Notice and the
January 23, 2025 Huffman Memorandum. And they challenge
4 Like Judge Rao, I am not persuaded by the court’s analysis in Make
the Road I, and I join Part II.A of her concurrence in the judgment.
But because Make the Road I is a binding precedent, I apply its
holding in today’s case.

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whether those directives comply with statutory and
constitutional limits. So the district court had jurisdiction.
That conclusion follows from the line this court has
already drawn between unreviewable designation decisions
and reviewable challenges to the written policies implementing
expedited removal.
Make the Road I held that the District Court for the District
of Columbia has jurisdiction over systemic challenges to
designation decisions or their implementing directives. As the
court explained, “Section 1252 . . . route[s] . . . legal and
constitutional challenges to two different fora”: individual
challenges to orders denying discretionary relief go to the
courts of appeals, while “challenges pertaining to the expedited
removal program must be filed in the District of Columbia
district court.” 962 F.3d at 630–31. Since the plaintiffs
brought their legal and constitutional challenges to the program
in the D.C. district court, under Make the Road I, their
challenges may proceed.5
5 In an amicus brief, the Federation for American Immigration
Reform suggests that Make the Road I’s jurisdictional analysis is
undermined by this court’s subsequent decision in iTech U.S., Inc. v.
Renaud, 5 F.4th 59 (D.C. Cir. 2021). But iTech addressed whether
the jurisdictional bar in § 1252(a)(2)(B)(ii) is limited to “[d]enials
of discretionary relief,” holding that it is not. Id. at 63. Make the
Road I, by contrast, addressed the distinct question whether that
generally worded jurisdictional bar blocks review of generally
applicable implementing directives in light of the specific review
scheme Congress established in § 1252(e)(3). Because iTech neither
involved expedited removal nor considered the interaction between
§ 1252(a)(2)(B) and § 1252(e)(3), it does not displace Make the Road
I’s conclusion that Congress preserved judicial review of such
directives.

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To be sure, Make the Road I acknowledged that the
Secretary’s policy choice concerning “whether to expand
expedited removal” is unreviewable. Id. at 618. But that is
irrelevant. All Make the Road I meant is that no one may
challenge the Secretary’s decision if it “falls within statutory
and constitutional bounds.” Id. at 635. So, plaintiffs cannot
challenge the designation decision, because that represents a
policy choice to expand expedited removal. Id. at 631–34. But
they can challenge the written directives effectuating that
choice for constitutional and statutory defects — just as they
have done here. Id. at 625–26.6
B. Standing
To demonstrate associational standing, Make the Road
must show, among other things, that at least one of its members
has “standing to sue in [his] own right.” Hunt v. Washington
State Apple Advertising Commission, 432 U.S. 333, 343
(1977). It has done so.7
6 Nor does a written directive cease to be a “written policy directive”
under § 1252(e)(3)(A) merely because it also announces a
designation decision. It is both — and the former is subject to
judicial review.
7 The parties disagree about whether any member of Make the Road
has standing to challenge DHS’s continuous-presence requirements.
So our discussion of standing focuses only on that. Make the Road
satisfies the other requirements for associational standing to
challenge DHS’s continuous-presence procedures and has
associational standing to challenge DHS’s credible-fear procedures.
See Hunt v. Washington State Apple Advertising Commission, 432
U.S. 333, 343 (1977) (association has standing when “(a) its
members would otherwise have standing to sue in their own right;
(b) the interests it seeks to protect are germane to the organization’s

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Make the Road challenges a unitary set of agency actions:
the Designation and the Huffman Memorandum. It claims that
those DHS directives injure its members who have a credible
fear of persecution abroad by denying them the adequate
credible-fear interviews that due process requires. It has
therefore alleged (1) an injury (2) traceable to the directives and
(3) redressable by vacatur of the directives.
DHS does not dispute Make the Road’s standing on those
grounds. But it says Make the Road can only challenge the
directives’ alleged denial of adequate credible-fear
interviews — not the directives’ alleged denial of an adequate
chance to show that the alien has lived in the country for two
straight years.
But that confuses Make the Road’s legal claim with its
legal arguments. After establishing standing to seek vacatur of
the directives based on its members’ credible-fear injuries,
Make the Road may advance any legal argument to show that
the directives are unlawful. In this case, one of those arguments
is that the directives violate due process by denying adequate
credible-fear interviews. Another of those arguments is that
the directives violate due process by denying others an
adequate opportunity to establish two years of continuous
presence in the United States.
To be clear, Make the Road cannot ask the court for a
remedy that would redress only other people’s injuries. Here,
regardless of what due-process argument is made, Make the
Road’s requested remedy — vacatur of the directives — would
redress the (alleged) injury to its members caused when those
purpose; and (c) neither the claim asserted nor the relief requested
requires the participation of individual members in the lawsuit”).

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directives (allegedly) prevent their members from receiving
adequate credible-fear interviews.
This court confirmed that principle in Ascendium
Education Solutions, Inc. v. Cardona, 78 F.4th 470 (D.C. Cir.
2023). There, the plaintiffs challenged an agency rule and
sought vacatur. Id. at 474. We held that when a plaintiff has
standing to seek vacatur of a rule, it “has standing to bring any
claims that could lead to the Rule’s vacatur.” Id. at 478. That
is so “even if” some of the challenged provisions of that rule
“are not directly linked to Petitioners’ injuries.” Id. (quoting
Mozilla Corp. v. FCC, 940 F.3d 1, 46–47 (D.C. Cir. 2019)).
Because vacating the directives would redress its
members’ injuries, Make the Road may advance any legal
theory that would justify vacating those directives.
C. Timeliness
Next, timeliness. Because the suit was filed within 60 days
of the challenged written directives, it is timely.
A challenge under § 1252(e)(3) “must be filed no later
than 60 days after the date the challenged section, regulation,
directive, guideline, or procedure . . . is first implemented.” 8
U.S.C. § 1252(e)(3)(B). This requirement is jurisdictional.
M.M.V. v. Garland, 1 F.4th 1100, 1109 (D.C. Cir. 2021). In
calculating compliance with the time requirement, courts must
look to when “the challenged” directive or procedure was “first
implemented.” Id. at 1108.
Here, the suit was timely. The Plaintiffs challenge two
written directives: the Designation and the Huffman
Memorandum. The Designation was implemented on January
21, 2025; the Huffman Memorandum was implemented on

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January 23, 2025. The Plaintiffs filed suit on January 22, 2025
and timely amended on March 22, 2025. That is within 60 days
of both directives. So the suit was timely.
The Government and its amicus respond that the Plaintiffs’
suit is untimely because the procedures invoked by the 2025
directives were first implemented years ago — in 2002 for
aliens arriving by sea, in 2004 for aliens near land borders, and
in 2019 for all other aliens eligible under the statute. On that
view, the January 2025 directives are not independently
reviewable. They are mere transmission devices for pre-
existing procedures, and challenges to those procedures are
time-barred.
That is wrong. Section 1252(e)(3) contemplates review of
a specific written instrument — “a regulation,” “a written
policy directive, written policy guideline, or written
procedure.” 8 U.S.C. § 1252(e)(3)(A)(ii). Judicial review
attaches to these discrete legal instruments, not to abstract
policies divorced from particular documents. Cf. Biden v.
Texas, 597 U.S. 785, 809 (2022) (explaining that the APA does
not contemplate review of “an abstract decision apart from
specific agency action”). The January 2025 Designation
Notice and Huffman Memorandum are specific written
directives. They are the legal instruments the Plaintiffs ask the
court to set aside. They are the objects of this lawsuit. And
they were first implemented in January 2025.
The Government’s argument assumes that a written
directive invoking pre-existing procedures is not itself a
“written policy directive” subject to review — or that
challenges to such a directive collapse into challenges to the
underlying procedures. But the statute draws no such
distinction. A directive does not cease to be a reviewable
written instrument merely because it incorporates procedures

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used elsewhere. Each written directive is a distinct legal
instrument, and each is subject to its own 60-day window.
Moreover, the Government’s contrary reading would gut
§ 1252(e)(3). If a directive invoking pre-existing procedures
inherits those procedures’ timeliness bar, then any expansion
of expedited removal could be insulated from judicial review.
The Government would need only to employ pre-existing
procedures, regardless of their original scope or context. A
procedure designed for and tested only on aliens arriving by
sea could later be applied to millions of long-term residents in
the interior. Yet, no court could hear a challenge. That would
allow the Government to dodge the judicial review
contemplated by Congress in § 1252(e)(3).8
Think about it from another angle. The January 2025
directives applied expedited removal to a new population under
new circumstances. The question in this case is whether those
new applications comport with due process — i.e., whether
procedures adequate for arriving aliens are adequate for long-
term interior residents. That question could not have even been
raised until the directives existed. So it is hard to understand
how we could hold that the Plaintiffs failed to raise in a timely
8 Even setting aside the structural problem, the 2019 designation
provides no barrier. That designation was formally rescinded in
2022. See Rescission of the Notice of July 23, 2019, Designating
Aliens for Expedited Removal, 87 Fed. Reg. 16,022 (Mar. 21, 2022).
Once rescinded, it had no continuing legal effect. The 2025
Designation Notice is a new written directive creating new legal
obligations. Agencies cannot immunize directives from review by
rescinding them when challenged and reinstating them later, outside
the 60-day window.

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fashion a challenge that was impossible to raise because the
directive to be challenged did not exist.9
This reading is consistent with M.M.V. v. Garland, 1 F.4th
1100 (D.C. Cir. 2021). The plaintiffs there argued that the 60-
day clock should run from when the challenged policy was
applied to them specifically — i.e., when agents first took
actions, authorized by the policy, at the particular facility
where they were held. Id. at 1109. This court rejected that
position as a misreading of 8 U.S.C. § 1252(e)(3)(B).
The court held that the limitations period runs from when
“the agreement became effective” or “when CBP agents began
conducting interviews” of anyone covered by the policy — not
from when the policy was “first applied to specific facilities or
[specific] aliens.” Id.
Unlike the unsuccessful plaintiffs in M.M.V., the Plaintiffs
here do not rely on when the challenged policies were applied
to them personally. Instead, they contend that the clock runs
from when the written directives they challenge — the 2025
9 The Government suggests that the mode of arrival or length of
presence is constitutionally irrelevant — that procedures adequate
for aliens arriving by sea are equally adequate for long-term residents
in the interior. Perhaps so. But that is an argument about whether
the Plaintiffs’ due-process claim succeeds, not about whether they
may bring it. The timeliness question is whether the Plaintiffs
challenged the directives within 60 days of their implementation.
They did. Cf. Corner Post, Inc. v. Board of Governors of Federal
Reserve System, 144 S. Ct. 2440, 2451 (2024) (“we have ‘reject[ed]’
the possibility that a ‘limitations period commences at a time when
the [plaintiff] could not yet file suit’ as ‘inconsistent with basic
limitations principles’”) (quoting Bay Area Laundry and Dry
Cleaning Pension Trust Fund v. Ferbar Corp. of California, 522
U.S. 192, 200 (1997)).

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Designation Notice and the Huffman Memorandum — first
took legal effect. That is the implementation-based trigger
M.M.V. identified.
D. The District Court’s Authority to Issue a Stay
We reach our final threshold issue: whether the district
court had authority to issue a stay. It did. First, 5 U.S.C. § 705
authorized the district court to issue a stay. And second, the
limit on injunctive relief in 8 U.S.C. § 1252(f)(1) did not stand
in the way.
Start with the district court’s authority to issue the stay in
the first place.
The source of that authority came from the Administrative
Procedure Act. The APA authorizes courts to “hold unlawful
and set aside agency action” that is “contrary to constitutional
right.” 5 U.S.C. § 706(2)(B). Constitutional challenges to
agency action are therefore resolved within the APA’s judicial-
review framework. See Webster v. Doe, 486 U.S. 592, 599,
602-04 (1988) (even when “committed to agency discretion,”
constitutional claims may proceed “under the APA” because
the Constitution provides a “law to apply”); id. at 607 n.*
(Scalia, J., dissenting) (“Chapter 7 (originally enacted as § 10
of the APA) is an umbrella statute governing judicial review of
all federal agency action. While a right to judicial review of
agency action may be created by a separate statutory or
constitutional provision, once created it becomes subject to the
judicial review provisions of the APA unless specifically
excluded, see 5 U.S.C. § 559.”). And 5 U.S.C. § 705 has been

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understood to authorize courts to issue stays when they are
engaged in judicial review under the APA.10
The due-process challenge sought vacatur of agency action
as unconstitutional. So it was properly reviewed under the
standard set forth in § 706(2)(B).
True, the district court claimed it did “not reach Make the
Road’s APA claims.” Make the Road New York v. Noem, No.
25-cv-190, 2025 WL 2494908, at *9 n.14 (D.D.C. Aug. 29,
2025). But it meant only the Plaintiffs’ claims that the agency
actions were unreasonable, were unreasonably explained, or
violated notice-and-comment requirements. The court went on
to evaluate the due-process claim and to grant a § 705 stay
based on its assessment of that claim’s merits.
That said, the APA does not always supply the governing
framework for judicial review of agency action. It provides the
default structure for such review, including a general cause of
action (§ 702), default forms of proceeding (§ 703), authority
for interim relief pending review (§ 705), and standards of
review (§ 706). Congress may displace that framework by
creating a special statutory review scheme. When such a
scheme exists, § 703 directs courts to use the specified form of
proceeding rather than the APA’s default route. But the APA’s
provisions remain applicable except to the extent a later statute
“expressly” supersedes them. 5 U.S.C. § 559.
This Court applies that principle strictly. A statute
displaces APA procedures only when Congress creates
procedures “so clearly different from those required by the
APA that it must have intended to displace the norm.” Citizens
for Responsibility & Ethics in Washington v. FEC, 993 F.3d
10 See, e.g., West Virginia v. EPA, 577 U.S. 1126, 1126 (2016).

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880, 889–90 (D.C. Cir. 2021) (quoting Asiana Airlines v. FAA,
134 F.3d 393, 397 (D.C. Cir. 1998)).
Section 1252(e)(3) creates a special statutory review
proceeding, but it does not displace the APA’s procedural
framework. It designates a forum: the District Court for the
District of Columbia. It defines reviewable claims:
constitutional and legal challenges to written implementing
directives. And it sets a limitations period: 60 days. But it
prescribes no special procedures for conducting that review,
and it does not disable any provision of the APA. So, under
§ 559 and § 703, the APA’s procedural provisions apply.
Section 705 is one of the provisions that applies. It
authorizes a reviewing court to “postpone the effective date of
an agency action” or “preserve status or rights pending
conclusion of the review proceedings.” 5 U.S.C. § 705. Its
trigger is not an APA cause of action. Its trigger is judicial
review of agency action. Once a court is properly engaged in
such review, § 705 is available unless Congress has expressly
disabled it.
Congress knows how to disable § 705 when it wishes. It
has done so in other statutes. See, e.g., 16 U.S.C.
§ 1855(f)(1)(A) (Magnuson-Stevens Act) (“section 705 of
[title 5] is not applicable”). Section 1252(e)(3) contains no
comparable language. Given the precision with which § 1252
elsewhere restricts judicial remedies, that omission is
significant.
The district court therefore had statutory authority under
§ 705 to stay the effective dates of the challenged directives
pending resolution of Plaintiffs’ constitutional claim.

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In response, the Government argues that 8 U.S.C.
§ 1252(f)(1) strips lower courts of authority to issue a § 705
stay. That is wrong.
Section 1252(f)(1) provides:
Regardless of the nature of the action or claim . . . no
court (other than the Supreme Court) shall have
jurisdiction or authority to enjoin or restrain the
operation of [specified immigration provisions]
other than with respect to the application of such
provisions to an individual alien against whom
proceedings . . . have been initiated.11
Section 1252(f)(1) does not bar stays issued under § 705
because there is a difference between “stay” and “enjoin or
restrain.” For starters, Nken held that “enjoin” does not mean
“stay.” Nken, 556 U.S. at 428. So the only question is whether
“restrain” means “stay.”
Neither “enjoin” nor “restrain” means “stay.” That’s
because an order enjoining or restraining is a judicial command
that coerces a party’s behavior — which a stay does not do. To
see why, consider each word in turn.
First, “enjoin.” To “enjoin” means to “command” or
“positively direct” an action, or to “require a person to . . .
abstain or desist from some act.” Garland v. Aleman Gonzalez,
596 U.S. 543, 548 (2022) (cleaned up). Or as the Court put it
in Nken, an injunction “directs the conduct of a party” and
“does so with the backing of [the court’s] full coercive
powers.” Nken, 556 U.S. at 428.
11 8 U.S.C. § 1252(f)(1).

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Second, “restrain.” It is of a piece with “enjoin.” To
“restrain” means to “check, hold back, or prevent (a person or
thing) from some course of action.” Aleman Gonzalez, 596
U.S. at 549.
Reading “restrain” narrowly to cover only formally
coercive relief makes sense of precedent both from the
Supreme Court and our court. The Supreme Court’s lead
opinion in Nielsen v. Preap set aside concerns about
§ 1252(f)(1) as a potential bar to jurisdiction, reasoning that
even if the provision were jurisdictional, it would not foreclose
declaratory relief. 586 U.S. 392, 402 (2019). This court
followed that understanding in Make the Road I, observing that
§ 1252(f)(1) “does not proscribe issuance of a declaratory
judgment.” 962 F.3d at 635.
If the term “restrain” could cover relief that does not
formally coerce — but only functionally checks — government
action, those holdings would make no sense. In a functional
sense, a declaratory judgment blocks the Government from
taking certain action. In fact, it may do so quite directly, since
28 U.S.C. § 2202 permits those who get a declaratory judgment
to go to court to get an injunction to enforce it.12 Thus, the
most sensible principle to draw from the holdings of these cases
is that § 1252(f)(1) doesn’t bar remedies that might restrict
government action in a functional sense; it restricts courts from
issuing only those remedies that are formally coercive.
Third and finally, “stay.” Unlike “enjoin” or “restrain,” a
“stay” does not order parties to do anything. Instead, it operates
on the legal status of the challenged agency action. As the
Court explained in Nken, a stay “achieves [its] result by
12 See Samuel L. Bray, The Myth of the Mild Declaratory Judgment,
63 Duke L.J. 1091, 1111 (2014).

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temporarily suspending the source of authority to act . . . not by
directing an actor’s conduct.” Nken, 556 U.S. at 428–29.
The Government seems to accept that § 1252(f)(1) does
not bar vacatur — the permanent elimination of an agency rule.
But that makes the Government’s § 1252(f)(1) argument all the
more baffling. A stay is just the preliminary form of
vacatur — much like a preliminary injunction is the
preliminary form of a permanent injunction.13 So if
§ 1252(f)(1) doesn’t bar vacatur, § 1252(f)(1) doesn’t bar a
stay.
The statute’s structure confirms that conclusion. Section
1252(e)(3) ensures judicial review of systemic expedited-
removal implementation. If § 1252(f)(1) barred stays, agencies
could implement challenged policies immediately and proceed
with removals while litigation proceeds.14 By the time review
concluded, the challenged directive might be rescinded and
replaced, beginning the cycle anew and frustrating the
13 See Samuel L. Bray, The Purpose of the Preliminary Injunction,
78 Vand. L. Rev. 809, 816 (2025) (explaining that a preliminary
injunction is “temporary” in the sense that “it does not persist after
the judgment”); Christopher D. Moore, So-Called “Administrative
Stays” in Trump 2.0, 104 Tex. L. Rev. Online 1, 9–10 (2025)
(explaining the parallel between stays and vacatur). Justice
Kavanaugh recently confirmed this understanding, explaining that
“in cases under the Administrative Procedure Act, plaintiffs may ask
a court to preliminarily ‘set aside’ a new agency rule,” citing both
§ 706(2) and the Court’s 2016 stay of the Clean Power Plan. Trump
v. CASA, Inc., 606 U.S. 831, 869 (2025) (Kavanaugh, J., concurring).
14 Stays are the main candidate for preliminary relief because
§ 1252(f)(1) bars preliminary injunctions.

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meaningful judicial review Congress authorized in
§ 1252(e)(3).15
15 The Government argues that our reading fails to explain why
§ 1252(f)(1) — the provision that matters here — says “enjoin or
restrain” when § 1252(f)(2) — the provision that follows it — says
just “enjoin.” But the phrase “enjoin or restrain” is a familiar legal
doublet — a conventional pairing of terms for emphasis and breadth,
not an invitation to parse each word for independent meaning.
Federal Rule of Civil Procedure 65(c) uses the same language,
referring to a party “enjoined or restrained” by preliminary
injunction or temporary restraining order. And the Supreme Court
has long employed the same formulation in its decrees. See Missouri
v. Iowa, 48 U.S. 660, 679 (1849); Nebraska v. Wyoming & Colorado,
534 U.S. 40, 50 (2001). The effect of a doublet is why no one has
invoked the surplusage canon to hold that the term “capricious”
imposes some novel requirements not contained in the term
“arbitrary.” On the contrary, “arbitrary and capricious,” like “aid and
abet,” or “enjoin or restrain,” are all common legal doublets. As
such, they are not vulnerable to surplusage arguments.
Even setting aside the doublet point, the terms are not obviously
surplusage. “Restrain” may capture forms of coercive relief that
“enjoin” might not — such as mandamus, which compels official
action. Both terms describe coercive commands to parties, but they
may reach slightly different forms of such commands. Section
1252(f)(2), which addresses individual removal orders, uses only
“enjoin” rather than “enjoin or restrain.” That difference is
consistent with this reading. In the individual context, the relevant
relief is prohibitory — stopping a particular removal — so “enjoin”
alone suffices. In the systemic context of (f)(1), both terms cover the
full range of coercive relief a challenger might seek. The variation
confirms that Congress chose its terms with care, not that “restrain”
in (f)(1) reaches non-coercive relief like § 705 stays.
And even to the extent that the two terms might yet be
characterized as a “redundant surplusage,” the Supreme Court has
observed that “redundancies are common in statutory

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In short, the statutory scheme fits together:
• Section 1252(e)(3) authorizes judicial review of
systemic expedited-removal implementation.
• Sections 559 and 703 supply the APA’s procedural
framework for conducting that review.
• Section 705 provides authority to preserve the legal
status quo while review proceeds, by temporarily
suspending the operative force of the challenged
action.
• Section 1252(f)(1) limits coercive
relief — assuring that officials carrying out the
statute’s operation cannot be commanded or
restrained by judicial decree.16
Under that structure, the district court acted within its
authority. It exercised jurisdiction to review the legality of
written directives and issued a stay under § 705 to suspend the
directives’ legal force pending review — all without formally
coercing any party’s behavior. Nothing in § 1252(f)(1)
drafting — sometimes in a congressional effort to be doubly sure,
sometimes because of congressional inadvertence or lack of
foresight, or sometimes simply because of the shortcomings of
human communication.” Barton v. Barr, 590 U.S. 222, 239 (2020).
16 The statute bars relief that would “enjoin or restrain the operation
of” the specified provisions. 8 U.S.C. § 1252(f)(1). The Supreme
Court has explained that laws ordinarily “work” or “function”
“through the actions of officials or other persons who implement
them.” Aleman Gonzalez, 596 U.S. at 549. The statutory language
thus contemplates restraint of officials’ conduct — coercive
commands directed at the persons implementing the law — not
determinations about the legal status of agency directives.

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prohibits that stay because § 1252(f)(1) bars only judicial
commands that coerce a party’s behavior — orders that “enjoin
or restrain,” not orders that “stay.”
V. Due Process
The 2025 Designation and Huffman Memorandum do not
violate the Due Process Clause.
Here, we (A) explain the standard that governs Make the
Road’s due-process claim. Then, we (B) hold that under that
standard, Make the Road is not likely to succeed on that claim.
A. Mullane Sets the Standard for Due Process
The district court evaluated Make the Road’s due-process
claim under Mathews v. Eldridge, 424 U.S. 319 (1976). But
even assuming for the sake of argument that the affected aliens
have due-process rights, the due-process claim should be
evaluated under the less demanding standard in Mullane v.
Central Hanover Bank & Trust Co., 339 U.S. 306 (1950).
Recent Supreme Court precedent favors application of
Mullane instead of Mathews. In Trump v. J.G.G., 145 S. Ct.
1003 (2025), and A.A.R.P. v. Trump, 145 S. Ct. 1364 (2025),
the Court applied Mullane to decide what process was due to
aliens facing removal under the Alien Enemies Act. J.G.G.,
145 S. Ct. at 1006; A.A.R.P., 145 S. Ct. at 1368. Neither case
mentioned Mathews.
The distinction between Mullane and Mathews matters.
Mathews invites courts to balance private interests against
governmental interests and to prescribe “additional . . .
procedural safeguards” when the balance tips toward the
individual. 424 U.S. at 335. Mullane, by contrast, does not ask
whether additional procedures might reduce the risk of error.

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Rather, Mullane asks only whether notice was “reasonably
calculated, under all the circumstances, to apprise interested
parties of the pendency of the action and afford them an
opportunity to present their objections.” 339 U.S. at 314; see
Dusenbery v. United States, 534 U.S. 161, 167–68 (2002)
(rejecting argument that due process requires the most effective
notice practicable and holding that Mullane requires only
notice “reasonably calculated” to inform).
The district court’s opinion illustrates the difference.
Applying Mathews, the court prescribed (1) revised forms,
(2) expanded access to counsel, and (3) additional time. But
Mullane does not ask what procedures would be better. It asks
whether the provided procedures are adequate.
In the removal context, A.A.R.P. explained what adequacy
requires: notice “reasonably calculated, under all the
circumstances, to apprise interested parties” and “sufficient
time and information to reasonably be able to contact counsel,
file a petition, and pursue appropriate relief.” 145 S. Ct. at
1367–68 (quoting Mullane, 339 U.S. at 314). The question in
this case is whether the expedited-removal process satisfies that
standard.
B. Make the Road Has Not Shown a Due Process Violation
Make the Road has not shown that the expedited-removal
process denies its members notice and an opportunity to be
heard.
Start with notice. The expedited-removal process provides
notice that the individual is being placed in removal
proceedings and is subject to removal for
inadmissibility — specifically, for lacking valid entry
documents or for fraud. See 8 U.S.C. § 1225(b)(1)(A)(i); 8

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C.F.R. § 235.3(b)(2)(i). The sample notice in the record reads
in bold at the top “Notice and Order of Expedited Removal.”
It includes a section titled “DETERMINATION OF
INADMISSIBILITY,” which includes checkboxes for an
immigration officer to record which provisions of 8 U.S.C.
§ 1182(a)(6)(C) and (7) the applicant failed. A section below
is titled “ORDER OF REMOVAL UNDER SECTION
235(b)(1) OF THE ACT.” That section informs the alien that
he is “found to be inadmissible as charged and ordered
removed from the United States.” So it provides notice.
The individual then has an “opportunity to respond.”
8 C.F.R. § 235.3(b)(2)(i). This “opportunity” includes “a
reasonable time” for the alien to present his objections.17 See
A.A.R.P., 145 S. Ct. at 1367–68; Mullane, 339 U.S. at 314; see
also Kwong Hai Chew v. Colding, 344 U.S. 590, 598–99
(1953) (interpreting a regulation governing exclusion
proceedings as consistent with constitutional due process
requirements). He may raise any basis for contesting removal.
The statute places the burden on the alien to “affirmatively
show[]” continuous presence. 8 U.S.C.
§ 1225(b)(1)(A)(iii)(II).
There is no evidence that the Designation or Huffman
Memorandum secretly restricts the right to notice and an
opportunity to respond, that they command officers to withhold
information, that they prohibit aliens from raising continuous
presence or any other defense, or that they limit the time or
opportunity afforded to aliens after a removal order issues. If
17 What counts as “reasonable” for due process purposes varies with
the circumstances. A.A.R.P., 145 S. Ct. at 1367–68. But unlike the
as-applied challenge in A.A.R.P., Make the Road’s facial challenge
to the Designation and Huffman Memorandum does not turn on the
facts of a particular removal.

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any of those things are happening, they are not the result of the
Designation or Huffman Memorandum. Those directives are
silent on these matters — and a directive’s silence cannot
command, authorize, or structurally ensure a constitutional
violation.
With its due-process claim, Make the Road challenges
only the “written policy directive[s]” and the procedures they
incorporate. Because Make the Road has not shown that those
directives and procedures violate due process, its claim fails.
1. Make the Road’s Continuous Presence Argument
What does Make the Road say in response?
It first argues that DHS has failed to provide proper notice
and an opportunity to be heard because it thinks DHS must
proactively tell aliens that they can defeat expedited removal if
they prove two years of continuous presence. The district court
and the motions panel majority shared that concern and faulted
DHS for using forms that neither ask about continuous
presence nor inform aliens why that information would be
relevant.
We disagree. Make the Road has identified no
authority — and we are aware of none — holding that due
process requires the government to instruct individuals on
available defenses or exemptions. The constitutional
requirement is notice of the action the government is taking and
the grounds for it, plus an opportunity to respond. See Mullane,
339 U.S. at 314; Loudermill, 470 U.S. at 546. It is not a
requirement that the government explain how the individual
might prevail.

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The distinction is well established in the context of
criminal law, where the stakes are even higher. In criminal
proceedings, the government must provide notice of the
charges, but it has no obligation to advise the defendant of
available defenses. See Fed. R. Crim. P. 7(c)(1) (indictment
must contain “a plain, concise, and definite written statement
of the essential facts constituting the offense charged”).
Prosecutors must not suppress evidence favorable to the
accused, see Brady v. Maryland, 373 U.S. 83, 87–88 (1963),
but they are not required to affirmatively instruct the defendant
on favorable law. If due process imposes no such requirement
in criminal proceedings, it follows a fortiori that it imposes no
such requirement in the removal context, where fewer
procedural protections apply. See Bugajewitz v. Adams, 228
U.S. 585, 591 (1913) (holding that deportation is not a
punishment and does not trigger criminal procedural
protections).
Make the Road argues that A.A.R.P. counsels otherwise.
Again, we disagree. In A.A.R.P., the detainees were not given
constitutionally adequate notice that they were subject to
removal under the Alien Enemies Act and lacked “sufficient
time and information” to “actually seek habeas relief” before
removal. 145 S. Ct. at 1367–68. The Court required notice of
the Government’s asserted authority and procedures sufficient
to permit detainees to pursue habeas in a meaningful way. Id.
at 1368. The Court did not hold that the government must
provide the detainees with an objective on-the-one-hand-on-
the-other-hand memo about whether Tren de Aragua was an
arm of the Maduro regime, walk them through a corpus
linguistics of “invasion” as it was understood in 1798, or
explain the XYZ Affair and the Quasi-War with France to
provide historical context for the Act. The holding was about
notice of the action and a realistic opportunity to seek
relief — not notice of every conceivable counterargument.

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Make the Road’s contrary reasoning would require
immigration officers to provide what amounts to legal advice.
If due process requires the government to inform individuals of
the two-year continuous-presence rule, it presumably also
requires informing them of every other basis for contesting
expedited removal. Make the Road offers no limiting principle
and identifies no authority for so expansive a requirement.
Make the Road’s remaining arguments turn to procedures
that precede the removal order. It argues that (1) its members
must receive “advance notice” that expedited removal will be
applied so they can “contest that removal” by establishing two
years’ presence, (2) they should not bear the burden of doing
so, (3) a “requirement” must exist “guarantee[ing]” time to
gather evidence and seek assistance, and (4) a neutral officer
must review continuous presence.
Properly understood, these arguments simply restate Make
the Road’s broader premise that due process requires the
Government to affirmatively facilitate the assertion of potential
defenses to expedited removal. But even accepting Make the
Road’s factual criticisms at face value, they do not establish the
kind of constitutional defect identified in A.A.R.P. — a regime
that failed to provide notice of the Government’s asserted
authority and a realistic opportunity to seek relief. Here, aliens
are informed that DHS is placing them in expedited removal.
And they may contest their amenability to that process,
including by asserting continuous presence. The Fifth
Amendment does not require the government to provide
advance legal instruction, to reallocate statutory burdens, or to
guarantee optimal conditions for evidence-gathering before the
threshold determination Congress authorized.
Finally, consider the relief Congress has made available.
The district courts have federal habeas corpus jurisdiction

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under 28 U.S.C. § 2241. Cf. I.M. v. CBP, 67 F.4th 436, 439
(D.C. Cir. 2023) (28 U.S.C. § 1252(e)(2) “requires an alien to
rely on another jurisdiction-conferring statute to bring habeas
proceedings,” and “the only grant of habeas jurisdiction that we
or the parties could identify is 28 U.S.C. § 2241”). With
8 U.S.C. § 1252, Congress put limits on habeas relief. And
Make the Road has not shown that the challenged directives
prevent aliens from pursuing the limited relief that Congress
has allowed.
To be sure, the record contains evidence that some aliens
have been erroneously subjected to expedited removal despite
having been present for more than two years. Is that because
they were denied an opportunity to prove continuous presence?
If so, that’s illegal. But the cause there would be individual
officers’ failure to follow the law — not defects in the written
directives under review or the procedures they incorporate.
The distinction matters because of how Congress
structured judicial review of expedited removal. Under
8 U.S.C. § 1252(e)(3), courts may review whether “a
regulation, or a written policy directive, written policy
guideline, or written procedure” is “not consistent with
applicable provisions of this subchapter or is otherwise in
violation of law.” Id. § 1252(e)(3)(A)(ii). The object of review
is the written instrument — not the conduct of individual
officers who may fail to comply with it. And if there is any
remedy for officer-level noncompliance, it is not invalidation
of the directive itself. Cf. Buchanan v. Barr, 71 F.4th 1003,
1016 (D.C. Cir. 2023) (Walker, J., concurring).

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37
2. Make the Road’s Credible-Fear Argument
Make the Road has also failed to show that the credible-
fear process denies adequate notice or a meaningful
opportunity to pursue relief based on fear of persecution.
Make the Road does not dispute that this statutory
structure, if followed, provides a meaningful opportunity to
pursue asylum-based relief. Its challenge is to implementation,
not design. The district court agreed that implementation is
flawed, pointing to three problems: first, a 15% failure-to-refer
rate for aliens expressing fear; second, insufficient time to
consult counsel; and third, the absence of a neutral adjudicator
at the initial screening. None establishes that the written
directives are unlawful.
First, the district court found that roughly 15% of aliens
who expressed fear were not referred for credible-fear
interviews. That bears little weight. The question is not
whether some officials fail to implement a directive properly;
it is whether the “written policy directive” itself is unlawful. 8
U.S.C. § 1252(e)(3)(A)(ii).
Here, the directives are not unlawful. The statute
commands referral: the officer “shall refer the alien for an
interview.” 8 U.S.C. § 1225(b)(1)(A)(ii). The Designation
does not override that command by, for example, instructing
officers to skip referrals, or by authorizing departures from the
statutory mandate. And, again, the potential failure of some
officials to implement the directives properly doesn’t somehow
mean the directives themselves are unlawful. Cf. Trump v.
American Federation of Government Employees, 145 S. Ct.
2635, 2635 (2025) (Sotomayor, J., concurring in the grant of
stay) (explaining that an “Executive Order direct[ing] agencies
to plan reorganizations and reductions in force ‘consistent with

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38
applicable law’” was not unlawful even though the plans to
implement that Executive Order might not be “consistent with
the constraints of law”); Buchanan, 71 F.4th at 1016 (D.C. Cir.
2023) (Walker, J., concurring).
Second, the district court thought that aliens have
insufficient time to consult counsel before credible-fear
interviews. But neither the Designation nor the Huffman
Memorandum limits that time or restricts access to counsel.
And Make the Road has identified nothing in them that takes
away what the governing statute and regulations promise — an
opportunity for consultation if it can occur “at no expense to
the Government” and will not unreasonably delay the highly
expedited process. 8 U.S.C. § 1225(b)(1)(B)(iv); see also 8
C.F.R. § 208.30(d); cf. Make the Road New York v. Wolf, 962
F.3d 612, 619 (D.C. Cir. 2020) (“Expedited removal lives up
to its name.”).
At most, the district court’s findings show that Congress’s
expedited screening system operates quickly and with practical
constraints — features the statute itself contemplates. They do
not show that the challenged directives deprive aliens of a
meaningful opportunity to be heard.
Third, the district court criticized the absence of a neutral
adjudicator at the initial screening. But due process does not
require a neutral adjudicator at every stage of a multi-step
administrative process — as many regulated industries know
all too well. What it requires is an opportunity to be heard “at
a meaningful time and in a meaningful manner.” Armstrong v.
Manzo, 380 U.S. 545, 552 (1965). When initial decisions are
made by agency officers but subject to de novo review by
neutral adjudicators, due process is satisfied. Concrete Pipe &
Products of California, Inc. v. Construction Laborers Pension
Trust for Southern California, 508 U.S. 602, 618 (1993).

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39
Therefore, Make the Road has not shown a due-process
violation. Congress assigned credible-fear interviews to
asylum officers, and de novo review of negative determinations
to immigration judges. 8 U.S.C. § 1225(b)(1)(B)(iii)(III); 8
C.F.R. § 1003.42(c). The availability of immigration-judge
review provides the neutral check needed to satisfy due
process.
The district court also erred to the extent it held that the
lack of review of initial referral decisions violates due process.
The statute already provides that an immigration officer “shall
refer [an] alien for an interview by an asylum officer” if the
alien “indicates either an intention to apply for asylum . . . or a
fear of persecution.” 8 U.S.C. § 1225(b)(1)(A)(ii). That is a
ministerial duty that nothing in the Designation or Huffman
Memorandum prevents the immigration officer from
performing.
* * *
Although Make the Road clears the four threshold
procedural hurdles, it falters when it reaches the merits. It has
not shown that the written directives fail to comply with
constitutional due process. And Make the Road’s evidence of
implementation problems — referral errors, rushed interviews,
communication barriers — does not establish that the
Designation and Huffman Memorandum are themselves “not
consistent with applicable provisions of [the INA] or . . .
otherwise in violation of law.” 8 U.S.C. § 1252(e)(3)(A)(ii).
We therefore vacate the district court’s § 705 stay.
So ordered.

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RAO, Circuit Judge, concurring in the judgment: When
reforming immigration law in 1996, Congress created a
procedure for quickly removing certain unlawfully present
aliens from the United States. Congress also gave the Executive
“sole and unreviewable discretion” to decide which aliens
would be subject to expedited removal and explicitly barred
courts from reviewing those decisions. Make the Road
challenged the Executive’s policy decision to expand the reach
of expedited removal. The district court concluded that it had
jurisdiction and issued a universal stay of the expedited
removal policy.
This lawsuit should have been dismissed at the threshold
because Congress left expedited removal policies to the
Executive’s discretion, barred judicial review, and foreclosed
universal remedies. While I respectfully disagree with my
colleagues’ decision to reach the merits, I agree with Judge
Walker that the expedited removal policy is consistent with due
process and that the district court’s stay must be vacated. After
over a year of litigation, the government finally may proceed
with its expedited removal policy.
I.
The Secretary of Homeland Security may designate certain
aliens for expedited removal from the United States.1 8 U.S.C.
§ 1225(b)(1)(A)(iii). This process “substantially shorten[s] and
speed[s] up the removal” of aliens not lawfully admitted to this
country. Make the Rd. N.Y. v. Wolf (“Make the Road I”), 962
F.3d 612, 618 (D.C. Cir. 2020). Two provisions of the Illegal
Immigration Reform and Immigrant Responsibility Act
(“IIRIRA”) are central to this case. First, the Secretary’s
1 Federal law assigns expedited removal designation decisions to the
Attorney General, but this authority has been transferred to the
Secretary of Homeland Security. See 6 U.S.C. §§ 251(2), 557; 8
C.F.R. § 235.3(b)(1)(ii).

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2
decision to designate eligible aliens for expedited removal is
explicitly committed to the Secretary’s “sole and unreviewable
discretion.” 8 U.S.C. § 1225(b)(1)(A)(iii)(I). Because
designation decisions are committed to agency discretion by
law, they cannot be reviewed under the APA. See Make the
Road I, 962 F.3d at 631–34 (holding that designation decisions
are “withdraw[n] … from APA review” under 5 U.S.C.
§ 701(a)(2)). Second, lower courts are stripped of “jurisdiction
or authority to enjoin or restrain the operation of” the expedited
removal provisions, except with respect to individual
proceedings, which are not at issue here. 8 U.S.C. § 1252(f)(1).
In January 2025, the Secretary published a designation
decision expanding expedited removal “to the fullest extent
authorized by statute.” Designating Aliens for Expedited
Removal, 90 Fed. Reg. 8139, 8139 (Jan. 24, 2025)
(“Designation”). Expedited removal previously applied to a
relatively narrow category of aliens, but the Designation
authorized expedited removal of all unlawfully present aliens
who have not shown two years of continuous physical
presence. Id.; see 8 U.S.C. § 1225(b)(1)(A)(iii) (authorizing the
designation of such aliens). The Secretary also issued guidance
directing immigration officers to implement the Designation.
Department of Homeland Security, Guidance Regarding How
to Exercise Enforcement Discretion (Jan. 23, 2025) (“Huffman
Memorandum”).
Make the Road challenged the Designation and Huffman
Memorandum, asserting claims under the APA and the Due
Process Clause of the Fifth Amendment. When Make the Road
moved for interim relief, it did not seek a preliminary
injunction, which all agree would be barred by section
1252(f)(1). See Garland v. Aleman Gonzalez, 142 S. Ct. 2057,
2063–65 (2022). Instead, Make the Road moved for a stay of
agency action under the APA’s interim relief provision, 5

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3
U.S.C. § 705. The district court granted Make the Road’s
motion and “stayed” the “implementation and enforcement” of
the Designation and Huffman Memorandum under section 705.
J.A. 1 (order accompanying opinion). The court declined to
address the government’s argument that IIRIRA commits the
Designation to the Secretary’s discretion and therefore it is not
reviewable under the APA. Instead, the district court
characterized Make the Road’s due process claim as an
equitable claim brought directly under the Constitution, not
under the APA. Make the Rd. N.Y. v. Noem (“Make the Road
II”), 805 F. Supp. 3d 139, 158 n.14 (D.D.C. 2025).
A motions panel denied in substantial part the
government’s request for a stay, over my dissent. See Make the
Rd. N.Y. v. Noem (“Make the Road III”), No. 25-5320, 2025
WL 3563313, at *37 (D.C. Cir. Nov. 22, 2025); id. at *37–45
(Rao, J., dissenting).
II.
I concur in the majority’s due process analysis.2 But
IIRIRA forecloses this lawsuit at the jurisdictional threshold
2 I also agree with the majority’s conclusion that Make the Road’s
lawsuit is timely, but for a different reason. Make the Road’s due
process claim must “be filed no later than 60 days after the date the
challenged … procedure … [was] first implemented.” 8 U.S.C.
§ 1252(e)(3)(B). Under M.M.V. v. Garland, 1 F.4th 1100 (D.C. Cir.
2021), a due process challenge to longstanding expedited removal
procedures would be time barred because those procedures are “first
implemented” when first promulgated or applied anywhere, not
when first applied to the particular aliens bringing a legal challenge
after an expanded designation. See Make the Road III, 2025 WL
3563313, at *39–40 (Rao, J., dissenting). The government disclosed
only in its merits briefing that it had implemented new procedures
for expedited removal following the Designation. Because the new
procedures pertain to Make the Road’s due process claim, those

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4
and prohibits the universal stay ordered by the district court.
Moreover, the APA does not provide authority for the stay
because designation decisions are committed to the Secretary’s
discretion by law and therefore are not reviewable under the
APA. When Congress limits judicial review and remedies,
courts must carefully heed those limits to avoid encroaching on
the proper province of the political branches.
A.
Our circuit has held that district courts have jurisdiction
over preenforcement challenges to designation decisions and
expedited removal policies implementing those decisions.
Make the Road I, 962 F.3d at 624–26; see also Majority Op.
14–15. This conclusion, however, is inconsistent with the text
and structure of IIRIRA. I again highlight the lack of
jurisdiction because this error lies at the inception of this and
many other cases. See Make the Road I, 962 F.3d at 639–45
(Rao, J., dissenting) (explaining why courts lack jurisdiction
over preenforcement suits challenging expedited removal
designations).
Congress’s power to limit federal court jurisdiction is one
of the few checks on the Judiciary. Accordingly, a “statute
affecting federal jurisdiction must be construed both with
precision and with fidelity to [its] terms.” Kucana v. Holder,
558 U.S. 233, 252 (2010) (cleaned up). That principle applies
with particular force here given that “many 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
procedures started a new 60-day clock. Make the Road’s due process
challenge is timely because of the new procedures used to implement
the Designation, not simply because the Designation expanded the
class of aliens subject to expedited removal.

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5
the legislation.” Reno v. American-Arab Anti-Discrimination
Comm., 525 U.S. 471, 486 (1999).
IIRIRA doubly strips jurisdiction to review the
Designation. First, courts lack jurisdiction to review
“any … decision or action … the authority for which is
specified … to be in the [Secretary’s] discretion.” 8 U.S.C.
§ 1252(a)(2)(B)(ii). This covers expedited removal
designations, which Congress expressly committed to the “sole
and unreviewable discretion” of the Secretary. Id.
§ 1225(b)(1)(A)(iii)(I); see Make the Road I, 962 F.3d at 639–
41 (Rao, J., dissenting).
Second, courts generally lack jurisdiction to review
policies and procedures implementing expedited removal. See
8 U.S.C. § 1252(a)(2)(A)(iv). Congress conferred authority on
the Secretary to set expedited removal policies and stripped
courts of jurisdiction to consider challenges to those policies.
See id. §§ 1225(b)(1)(A), 1252(a)(2)(A)(iv). By contrast,
Congress preserved judicial review of challenges to written
policies and procedures “solely in the context of individual
‘determinations under section 1225(b).’”3 Make the Road I,
962 F.3d at 642–43 & nn.10–11 (Rao, J., dissenting) (quoting
8 U.S.C. § 1252(e)(3)(A)). IIRIRA preserved judicial review
3 This limitation on judicial review follows from reading sections
1252(a) and (e) together. Section 1252(a)(2)(A) bars judicial review
of designation decisions, individual determinations related to
removal eligibility, and the implementation of removal orders,
except as provided by section 1252(e). Section 1252(e) does not
mention designation decisions. Instead, it permits review of written
policies only in the context of “determinations under section
1225(b) … and its implementation.” 8 U.S.C. § 1252(e)(2),
(e)(3)(A). Sections 1252(a) and (e) thus condition the availability of
judicial review on an individual expedited removal “determination”
and do not authorize review of designations.

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6
for individuals vindicating their legal rights. But there are no
individual determinations at issue in this case. Make the Road’s
lawsuit fails because the Secretary’s Designation is an
expedited removal policy that cannot be reviewed by the
federal courts.
IIRIRA commits expedited removal policies to the
Secretary’s discretion and insulates that discretion from
judicial review. Although circuit precedent forecloses this
conclusion, the district court had no jurisdiction to consider
Make the Road’s preenforcement challenge to the Designation.
B.
There are two additional and independent reasons why the
district court lacked authority to issue a stay of the Designation
and Huffman Memorandum. First, the stay is barred by section
1252(f)(1) because it “restrains the operation of” IIRIRA’s
expedited removal provisions and provides universal, rather
than individual, relief. Second, the district court cannot grant a
stay under the APA because designation decisions are
committed to the Secretary’s discretion by law and therefore
APA review and APA remedies are unavailable.
1.
IIRIRA’s text and structure, as well as Supreme Court
precedent, compel the conclusion that section 1252(f)(1) strips
the district court of authority to issue a universal stay of the
Designation and Huffman Memorandum.
Section 1252(f)(1) states: “Regardless of the nature of the
action or claim … no court (other than the Supreme Court)
shall have jurisdiction or authority to enjoin or restrain the
operation of” certain provisions of the Immigration and
Nationality Act (“INA”), including the expedited removal

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7
provisions. 8 U.S.C. § 1252(f)(1). The one exception is that
such relief is available when those provisions are applied “to
an individual alien against whom proceedings … have been
initiated.” Id.
The phrase “enjoin or restrain” encompasses more than
injunctions,4 and the district court’s stay “restrain[s] the
operation of” the expedited removal provisions by halting
implementation of the Designation as to all aliens. Id.
(emphasis added). Accordingly, the stay exceeded the district
court’s remedial authority.
This straightforward reading of the statute is confirmed by
Aleman Gonzalez, in which the Supreme Court explained that
“to restrain” in section 1252(f)(1) means “to check, hold back,
or prevent … some course of action.” 142 S. Ct. at 2064
(cleaned up); see also Restrain, Black’s Law Dictionary (6th
ed. 1990) (“To limit, confine, abridge, narrow down, restrict,
obstruct, impede, hinder, stay, destroy.”) (emphasis added). A
stay of the Designation “restrains” because it checks, holds
back, and prevents the government from executing the
expedited removal authority conferred by IIRIRA.5
4 Both Aleman Gonzalez and Biden v. Texas expressly reserved the
question of whether section 1252(f)(1) bars “any other form of relief
that is practically similar to an injunction.” Aleman Gonzalez, 142
S. Ct. at 2065 n.2 (cleaned up); accord Biden v. Texas, 142 S. Ct.
2528, 2540 n.4 (2022).
5 The ordinary meaning of “restrain” in section 1252(f)(1) is
reinforced by a related judicial review provision describing stays as
relief that restrains agency action. Under the INA, the “filing of the
petition for review does not of itself stay or suspend the operation of
the order of the agency,” but the court of appeals “may restrain or
suspend … the operation of the order pending” judicial review. 28
U.S.C. § 2349(b) (emphasis added). We have long interpreted

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8
This interpretation is also consistent with Nken v. Holder,
which held that the term “enjoin,” standing alone in section
1252(f)(2), does not include stays. 556 U.S. 418, 428–30
(2009). But the Supreme Court distinguished section
1252(f)(1), which strips courts of authority to “enjoin or
restrain,” and explained that stays “have the practical effect of
preventing” agency action. Id. at 428 (emphasis added). Stays
are thus squarely covered by “restrain,” which has a meaning
distinct from “enjoin.” Aleman Gonzalez, 142 S. Ct. at 2064.
Contra Majority Op. 28 n.15 (asserting that “enjoin or restrain”
is a “legal doublet” in which the terms are overlapping and
essentially redundant). Taking Nken and Aleman Gonzalez
together, a stay is a judicial remedy that “restrain[s]” by
preventing agency action. Stays therefore fall within the
remedial limitations of section 1252(f)(1).
Moreover, it is well established that universal relief is not
permitted under section 1252(f)(1). As the Court has explained,
that provision allows injunctive relief only “on behalf of a
particular alien …, but injunctive relief on behalf of an entire
class of aliens is not allowed because it is not limited to
remedying the unlawful ‘application’ of the relevant statutes to
‘an individual alien.’” Aleman Gonzalez, 142 S. Ct. at 2065;
American-Arab Anti-Discrimination Comm., 525 U.S. at 481.
The district court stayed the implementation and
enforcement of the Designation as to all aliens. There are no
individual proceedings challenged in this lawsuit. Because the
stay universally restrains the government’s expedited removal
section 2349(b) to provide “statutory authority to stay agency
orders,” which further confirms that “restrain” captures stays. In re
GTE Serv. Corp., 762 F.2d 1024, 1026 (D.C. Cir. 1985).

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9
authority, it is prohibited by section 1252(f)(1), and the district
court had no jurisdiction or authority to enter it.6
The majority holds that universal stays against expedited
removal policies are permitted, an interpretation of section
1252(f)(1) that substantially expands the authority of the
district courts.7 The majority asserts that “restrain” is limited to
“formally coercive relief,” which does not include stays.
Majority Op. 26. But this gloss finds no support in the text of
IIRIRA or Supreme Court precedent. As the majority
recognizes, to “restrain” means to “check, hold back, or
prevent” agency action. Id. (citing Aleman Gonzalez, 142 S. Ct.
at 2064). And the district court’s stay plainly checks, holds
back, and prevents the government from implementing the
Designation. Moreover, the majority does not account for the
reach of section 1252(f)(1), which prohibits courts from
restraining “the operation of” the expedited removal
provisions, a phrase that encompasses “the [g]overnment’s
efforts to enforce or implement” those provisions. Aleman
6 I need not address whether section 705 of the APA generally
provides for universal stays of agency action because Congress
explicitly barred such universal relief in the expedited removal
context “[r]egardless of the nature of the action or claim.” 8 U.S.C.
§ 1252(f)(1). In IIRIRA, Congress provided only for individual relief
in individual proceedings, a limitation consistent with traditional
equitable principles of party-specific relief. See Trump v. CASA, Inc.,
145 S. Ct. 2540, 2552 (2025) (recognizing that “party-specific
principles … permeate our understanding of equity”).
7 Section 1252(f)(1) prohibits lower courts from enjoining or
restraining the operation of “part IV of this subchapter,” which
includes expedited removal as well as provisions governing alien
inspection, apprehension, detention, and other forms of removal.
Under the majority’s interpretation, a lower court may issue
universal stays of government policies implementing any of these
provisions. See 8 U.S.C. §§ 1221–32.

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10
Gonzalez, 142 S. Ct. at 2064. Here, the district court stayed the
“implementation and enforcement” of the Designation as to all
aliens, which is precisely the kind of universal relief the
Supreme Court held was prohibited by section 1252(f)(1).8
Holding that the district court has authority to stay the
Designation, the majority sanctions an end run around
Congress’s clear remedial limitations.
Section 1252(f)(1) “deprives courts of the power to issue
a specific category of remedies: those that ‘enjoin or restrain
the operation of’” the expedited removal provisions. Biden v.
Texas, 142 S. Ct. 2528, 2539 (2022). The district court had no
authority to stay the Designation because that remedy restrains
the government’s efforts to implement its expedited removal
policies.
2.
The district court also erred by issuing an APA stay when
APA review is unavailable. Make the Road invokes section 705
of the APA as authority to stay the Designation.9 But expedited
8 The Supreme Court has declined to decide whether section
1252(f)(1) “extends to … declaratory relief.” Texas, 142 S. Ct. at
2540 n.4. The majority assumes section 1252(f)(1) permits
declaratory relief and on this assumption concludes that it must
permit stays as well. Majority Op. 26. But whether or not declaratory
judgments are permitted, stays are a distinct remedy. A declaratory
judgment does not “enjoin or restrain.” Instead, it requires a litigant
“to go to court to get an injunction to enforce it,” as the majority
acknowledges. Id.
9 Section 705 is titled “Relief pending review” and provides, “On
such conditions as may be required and to the extent necessary to
prevent irreparable injury, the reviewing court … may issue all
necessary and appropriate process to postpone the effective date of

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11
removal designations are committed to agency discretion by
law and therefore are not reviewable under the APA. Make the
Road I, 962 F.3d at 631–34.
Congress committed designation decisions to the
Secretary’s “sole and unreviewable discretion.” 8 U.S.C.
§ 1225(b)(1)(A)(iii)(I). Section 701(a)(2) of the APA provides
that “[t]his chapter”—which includes section 705—applies
“except to the extent that” the challenged “agency action is
committed to agency discretion by law.” 5 U.S.C. § 701(a)(2)
(emphasis added). When an action is committed to agency
discretion by law, section 701(a)(2) “limits application of the
entire APA.” Webster v. Doe, 486 U.S. 592, 599 (1988); accord
Oryszak v. Sullivan, 576 F.3d 522, 525 (D.C. Cir. 2009).
Because designation decisions are committed to agency
discretion by law, the APA does not apply.10 When the APA
does not apply, APA remedies are not available. The district
court therefore could not rely on section 705 of the APA to
issue a stay.
Attempting to avoid the reality that APA review is not
available for challenges to expedited removal designations, the
district court treated Make the Road’s due process claim as an
agency action or to preserve status or rights pending conclusion of
the review proceedings.” 5 U.S.C. § 705 (cleaned up).
10 APA review is also unavailable when “statutes preclude judicial
review.” 5 U.S.C. § 701(a)(1). As explained in Part II.A, IIRIRA
strips courts of jurisdiction to review expedited removal designations
and policies. The APA is therefore doubly disabled in this lawsuit.
See Chairez v. Mayorkas, 168 F.4th 1227, 1231 (9th Cir. 2026)
(holding that section 701(a)(1) precludes APA review “whenever the
agency action at issue falls within the INA’s jurisdictional bar in
§ 1252(a)(2)(B)(ii)”); Shabaj v. Holder, 718 F.3d 48, 52 (2d Cir.
2013) (per curiam) (similar).

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12
equitable constitutional claim. Make the Road II, 805 F. Supp.
3d at 158 n.14. I agree with the district court that this
characterization is supported by Make the Road’s complaint
and that equitable constitutional claims are generally available
irrespective of whether APA review is available.
But even if we treat the due process claim as an equitable
constitutional claim, that does not change the fact that Make
the Road challenges the Secretary’s designation expanding the
aliens eligible for expedited removal—an action IIRIRA
expressly commits to the Secretary’s unreviewable discretion.
The Designation may be reviewable in equity for constitutional
defect, but because it is not reviewable under the APA, a stay
under section 705 of the APA is not available.
The majority’s approach runs into the same problem. The
majority reframes Make the Road’s due process claim as an
APA claim that the Designation is “contrary to constitutional
right.” Majority Op. 22–23 (quoting 5 U.S.C. § 706(2)(B)). Of
course, APA review may include a claim that agency action is
unconstitutional. But parties may not raise constitutional
challenges under the APA to actions that are committed to
agency discretion by law.
To reiterate, IIRIRA commits expedited removal
designations to agency discretion by law and thus “withdraw[s]
the decision[s] from APA review.” Make the Road I, 962 F.3d
at 632. And where APA review is unavailable, the “entire
APA,” including its remedial provisions, is unavailable. See
Webster, 486 U.S. at 599; see also Doe v. Gates, 981 F.2d 1316,
1319 (D.C. Cir. 1993) (explaining that section 701(a)(2)
precludes “any judicial review under the APA” when the
challenged action is committed to agency discretion). Make the
Road’s constitutional claim must proceed, to the extent it

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13
proceeds at all, in equity with whatever equitable remedies are
appropriate.
In the mine run of cases in which a party seeks to
immediately halt unconstitutional agency action, there will be
little practical consequence between seeking a preliminary
injunction or a stay under section 705. In this case, however,
Make the Road challenges the Designation, a challenge that
implicates the restrictions of both IIRIRA and the APA.
IIRIRA squarely prohibits the district court from entering a
classwide injunction in this preenforcement challenge. See 8
U.S.C. § 1252(f)(1); Aleman Gonzalez, 142 S. Ct. at 2064–65.
Because injunctive relief is not available, Make the Road
sought an APA stay. But that relief is foreclosed because
expedited removal designations are explicitly committed to
agency discretion by law, and therefore an APA stay is
unavailable.
Mixing and matching an equitable constitutional claim
with an APA remedy does not work here. The district court’s
conclusion that Make the Road can secure a universal stay
under the APA when APA review is not available is a novel
holding that contravenes the limits of both IIRIRA and the
APA. At bottom, it does not matter whether Make the Road’s
due process challenge is framed as an equitable constitutional
claim or an APA claim. Make the Road challenges an
expedited removal designation that is explicitly committed to
agency discretion by law, and therefore the APA and its
remedies are off the table.
* * *
My colleagues conclude that Make the Road’s challenge
to the Designation is reviewable and that the district court had
authority to issue a universal stay. Those conclusions, however,
run into multiple roadblocks Congress erected in IIRIRA to

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“protect[] the Executive’s discretion from the courts” with
respect to immigration policy. American-Arab Anti-
Discrimination Comm., 525 U.S. at 486. First, courts cannot
review the Secretary’s discretionary decisions, which include
the designation of aliens for expedited removal. Second, courts
cannot review the policies and procedures implementing
expedited removal in preenforcement challenges. Third, courts
cannot enter universal injunctions or stays in preenforcement
challenges. Finally, APA review and APA remedies are not
available for the Designation, which is an expedited removal
policy that Congress committed to the “sole and unreviewable
discretion” of the Secretary.
In sum, IIRIRA forecloses judicial review of Make the
Road’s preenforcement challenge to the Designation, and the
APA does not provide a back door for the district court’s
universal stay. I concur in the judgment because I agree that the
Secretary’s expedited removal procedures are consistent with
due process and that the district court’s stay must be vacated.
Nevertheless, the more fundamental error lies in the district
court exceeding its lawful authority and halting an immigration
policy that Congress left to the discretion of the Executive
Branch.

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W ILKINS , Circuit Judge, concurring in part and dissenting
in part: I agree with Judge Walker that Plaintiffs have standing,
that the 2025 Designation and Huffman Memorandum are
reviewable under the APA, and that the standard for notice set
forth in Mullane v. Central Hanover Bank & Trust Co., 339
U.S. 306 (1950), and not the balancing test established in
Mathews v. Eldridge, 424 U.S. 319 (1976), governs Plaintiffs’
constitutional due process claim. I write separately, however,
to express my view that Plaintiffs were entitled to a § 705 stay
under the Mullane test, having shown a likelihood of success
that the 2025 Designation and Huffman Memorandum violate
due process. On that ground, I respectfully dissent.
I.
“The INA authorizes the Executive to remove a foreign
individual from the United States but confines that authority to
only two specified methods: regular removal under 8 U.S.C. §
1229a or expedited removal under 8 U.S.C. § 1225(b)(1).”
Refugee & Immigrant Ctr. for Educ. & Legal Servs. v. Mullin,
174 F.4th 81, 93 (D.C. Cir. 2026). This case is about expedited
removal. The INA authorizes expedited removal for persons
unable to “affirmatively show[], to the satisfaction of an
immigration officer,” that they have been continuously present
in the United States for at least two years. 8 U.S.C. §
1225(b)(1)(iii)(II). The Department of Homeland Security
(“DHS”) thus has no authority to remove individuals from the
United States using expedited removal procedures if that
person has been continuously present in the United States for
more than two years. See La. Pub. Serv. Comm’n v. FCC, 476
U.S. 355, 374 (1986) (“an agency literally has no power to act
. . . unless and until Congress confers power upon it.”).
Notwithstanding this statutory requirement, the District
Court found that while using expedited removal procedures
mandated by the 2025 Designation and Huffman
Memorandum, DHS has deported several noncitizens who had

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been continuously present in the United States for more than
two years. See J.A. 15–16. DHS has not contested this factual
finding. This begs the question of how and why the agency is
removing people from the country in a manner contrary to the
federal statute. The answer to this question is pretty simple:
DHS is using procedures that do not allow a meaningful
opportunity for noncitizens to demonstrate that they have been
continuously present in the United States for two years.
An immigration officer who follows the 2025 Designation
and Huffman Memorandum will not apprise a noncitizen that
demonstrating two-years of continuous presence in the United
States exempts them from expedited removal. The District
Court found that the forms mandated for reading to noncitizens
do not ask these individuals how long they have been present
in the country and do not inform them they are only subject to
expedited removal if they have been present in the United
States for less than two continuous years. See J.A. 34. The
District Court also found that “there is nothing in the expedited
removal interview process that would prompt an individual to
put forward the ‘affirmative[]’ evidence of continuous two-
year presence that is required under the statute.” J.A. 35 (citing
8 U.S.C. § 1225(b)(1)(A)(iii)(II)).
Absent such knowledge, the noncitizen is simply left to
hope that the immigration officer will conclude that they have
met their burden of demonstrating two-years of continuous
presence at the initial screening interview. That is because, as
the District Court found, “once the [screening] interview is
complete, the individual is not afforded any other opportunity
to present evidence about their continual presence.” J.A. 35.
An immigration officer who “determines that [the noncitizen
is] subject to expedited removal and receives supervisory sign
off . . . serves the Form I-860, which combines both the notice
of and order for expedited removal” thus leaving the noncitizen

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“ordered removed ‘without further hearing or review.’” Id.
(citing 8 U.S.C. § 1225(b)(1)(A)(i)). And even if the
noncitizen, by some slim chance, has the knowledge or
foresight to assert two-years continuous presence in the United
States, the District Court found that “the expedited removal
process hardly affords individuals any opportunity, let alone a
‘meaningful’ one, to demonstrate that they have been present
in the United States for two years.” See J.A. 35–36; J.A. 40.1
A procedure that can result in persons being deported
pursuant to the expedited removal statute without even being
asked how long they have been in the country might satisfy due
process for persons encountered at the border, but it is woefully
inadequate for persons encountered in the interior of the
country. Long ago, the Department of Justice “acknowledge[d]
that application of the expedited removal provisions to aliens
already in the United States will involve more complex
determinations of fact” and will present the difficulty of
“determining the exact time of the alien’s arrival.” Inspection
1 For the first time on appeal, the Government asserts there is a guidance
document that allows noncitizens a “brief but reasonable opportunity” to
gather such evidence, Appellant Br. 10, but that document cannot be
considered since it was not presented to the District Court. See Ellipso, Inc.
v. Mann, 480 F.3d 1153, 1157 (D.C. Cir. 2007) (refusing to consider
arguments made on appeal that were not presented to District Court in
opposition to the motion for preliminary injunction). The District Court
noted that “[w]hen asked at oral argument what would happen if, for
example, an individual unexpectedly apprehended at a court hearing wants
‘to demonstrate that they’ve been here for a period of two years but they
don’t have any paperwork on them,’ the Government came up empty,
offering only ‘to take that back to the agency to give [the Court] an
answer.’” J.A. 40 (quoting hearing transcript); see also J.A. 7 n.3 (District
Court noting that the Government had not “put forward any evidence of its
own about how the process works”) (emphasis in original).

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4
and Expedited Removal of Aliens; Detention and Removal of
Aliens; Conduct of Removal Proceedings; Asylum Procedures,
62 Fed. Reg. 10312, 10313 (Mar. 6, 1997). Under Mullane, the
traditional hallmarks of due process are “notice and
opportunity for hearing appropriate to the nature of the case,”
so procedures that may be constitutionally adequate when
applied to aliens arriving at a port of entry are not necessarily
adequate when applied to persons apprehended anywhere in the
United States.2 339 U.S. at 313–14; see also Walker v. City of
Hutchinson, 352 U.S. 112, 115 (1956) (reiterating “the
impossibility of setting up a rigid formula as to the kind of
notice that must be given; notice required will vary with
circumstances and conditions.”). Removal and deportation
proceedings employ the same flexibility. See A. A. R. P. v.
Trump, 605 U.S. 91, 94–95 (2025) (per curiam) (construing
due process in light of the circumstances); Trump v. J. G. G.,
604 U.S. 670, 673 (2025) (per curiam) (same).
The fact that the procedures implementing the 2025
Designation and Huffman Memorandum do not require (1)
DHS to ask the persons when they entered the country, or (2)
DHS to advise persons that expedited removal applies only if
the person has not been continuously present in the country for
two years, violates due process. As the Court held in Mullane,
notice must “be of such nature as reasonably to convey the
required information” and “afford a reasonable time for those
interested to make their appearance.” 339 U.S. at 314. In
A. A. R. P. v. Trump, the Court held that notice issued “roughly
24 hours before removal” and “devoid of information about
2 Below and on appeal, the Government principally relies on the due process
analysis of American Immigration Lawyers Association v. Reno, 18 F. Supp.
2d 38, 46 –47 (D.D.C. 1998), aff’d, 199 F.3d 1352 (D.C. Cir. 2000), but the
court in that case dismissed the due process claims based on the finding that
arriving aliens stopped at or near the border had no due process rights, a
premise that we reject for persons living in the interior of the United States.

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5
how to exercise due process rights to contest that removal” is
constitutionally inadequate. 605 U.S. at 95. Similarly, in
Trump v. J. G. G., the Court explained that “notice must be
afforded within a reasonable time and in such a manner as will
allow [the detainees] to actually seek habeas relief in the
proper venue before such removal occurs.” 604 U.S. at 673
(emphasis added). The thrust of these cases is that notice
exacts more than mere ceremony; its content and timing must
be sufficient to give the noncitizen an actual opportunity to
avail themselves of review prior to removal (even if the only
review available is that of a supervisory DHS official).
For many of the same reasons, the procedures
implementing the 2025 Designation and Huffman
Memorandum violate due process for persons “already in
section 240 removal proceedings, many of whom are pursuing
asylum and other collateral relief.” J.A. 12. The District Court
found as a factual matter that “[c]redible fear interviews are
regularly conducted ‘as little as 24 hours’ after a noncitizen’s
initial interview with an immigration officer” and that “the
Government’s procedures prevent noncitizens from
‘contact[ing] counsel or other support [to] gather information
that they . . . need to . . . assert a credible fear’ in their
interview” since “[s]ome of the detention facilities where
noncitizens are held charge cost-prohibitive rates for attorney-
client phone calls and have long wait-times (more than 24
hours) for scheduling calls after they are requested.” J.A. 32
(citations omitted). A process of that kind that “leaves
noncitizens unable to obtain ‘medical records’ and other proof
that would substantiate their claims of fear” while also
precluding them on appeal from “‘explain[ing] discrepancies
in their previous statements’ during credible fear interviews ‘or
to provide additional evidence or information not detailed in
the credible fear interview’” offers no one any opportunity to
make their case. See J.A. 32–33 (citations omitted). The four

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6
questions read aloud by an immigration officer to a noncitizen
at the screening interview count for nothing if they cannot
contact anyone who might help or gather the necessary
documentation to substantiate their credible fear. See
A. A. R. P., 605 U.S. at 95.
Nor can A. A. R. P. and J. G. G. be factually distinguished
to support the Majority’s position. The Court in J. G. G. held
that Alien Enemy Act (“AEA”) “detainees must receive notice
. . . that they are subject to removal under the Act” when
reviewing two temporary restraining orders “preventing
removal under the AEA of a provisionally certified class
consisting of all noncitizens in U.S. custody who are subject to
the Proclamation.” 604 U.S. at 671, 673 (citation modified).
So too in A. A. R. P. There, the named applicants asserted they
were “at imminent risk of being classified as alien enemies and
removed from the United States,” even though “the record d[id]
not indicate that they . . . received any formal notice of
removal under the AEA.” A. A. R. P., 605 U.S. at 97. Even on
that account, the Court held that “[t]he named applicants, along
with putative class members” were “entitled to constitutionally
adequate notice prior to any removal, in order to pursue
appropriate relief.” Id. at 97–98. The result should be no
different here. Plaintiffs consist of persons “at risk of being
subjected to expedited removal under the [2025 Designation
and Huffman Memorandum] . . . entitled under the Due
Process Clause to meaningful process before they can be
removed from the country.” J.A. 383 ¶ 108.
All told, due process does not wait for a final removal
order to be issued before it is owed. The constitutional
safeguards due process affords leave “no doubt that at a
minimum [it] require[s] that deprivation of life, liberty or
property by adjudication be preceded by notice and opportunity
for hearing appropriate to the nature of the case.” Mullane, 339

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7
U.S. at 313 (emphasis added). Because that baseline was not
satisfied here, I would affirm the District Court’s entry of a §
705 stay for Plaintiffs.

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