DC Circuit restores Trump's expedited deportation policy

WASHINGTON (CN) — A D.C. Circuit panel on Tuesday reversed a federal judge’s order blocking the Trump administration from expanding expedited removal procedures to immigrants who have been in the country under two years.

In a 2-1 decision, the appeals court determined that the Department of Homeland Security’s revival of an identical 2019 policy, which allows the department to exercise its removal power to the “maximum extent allowed by Congress,” does not violate immigrants’ due process.

On Jan. 21, 2025, acting Secretary of Homeland Security Benjamin Huffman authorized expedited removals and expanded their range to immigrants encountered within 100 miles of the southern border.

Make the Road New York filed suit the next day, arguing the revived policy would expand “fast-track deportations” and give President Donald Trump “a cheat code to circumvent due process and the Constitution.”

U.S. District Judge Jia Cobb, a Joe Biden appointee, granted a stay in August 2025 after finding the policy likely violated the immigrants’ due process rights, as they had a significant liberty interest in remaining in the country and faced a substantial risk of that right being wrongfully denied under the Huffman policy.

U.S. Circuit Judge Justin Walker, joined by U.S. Circuit Judge Neomi Rao, wrote in the court’s opinion that immigrant rights group Make the Road New York could not show the expedited removals denied immigrants notice and the opportunity to be heard.

“There is no evidence that the designation or Huffman memorandum secretly restricts the right to notice and an opportunity to respond, that the 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,” the Donald Trump appointee wrote. “If 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.”

Walker said Cobb used the incorrect due process standard — from the 1976 Supreme Court case Matthews v. Eldridge — when she froze implementation of the policy in August 2025.

“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,” Walker wrote, citing a 1950 case.

He pointed to the Supreme Court’s decisions in Trump v. J.G.G. and A.A.R.P. v. Trump — two shadow docket decisions that Rao cited at oral arguments to suggest immigrants “don’t have a liberty interest to remain because they’re here unlawfully” — where the justices applied Mullane’s standard.

The case’s test requires a court otherwise determine if a removal notice was “reasonably calculated” to inform either party and afford them an opportunity to raise any objections, Walker said. In A.A.R.P., the high court found such notice is adequate as long as an immigrant has sufficient time to contact an attorney, file a petition and pursue relief.

The record in the case shows several immigrants have been wrongfully subjected to expedited removal, despite having been present in the country over two years, but Walker blamed individual immigration officials rather than agency policy.

“Is that because they were denied an opportunity to prove continuous presence?” Walker wrote. “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.”

U.S. Circuit Judge Robert Wilkins, a Barack Obama appointee, issued a dissent and said Make the Road New York was entitled to a stay because they adequately showed the new policy violated due process.

The fact that several immigrants had already been wrongfully deported, despite their continuous presence in the country, makes clear that the government’s procedures did not afford immigrants a meaningful opportunity to contest their expedited removal, Wilkins said.

The record shows procedures do not require immigration officers to ask an individual when they entered the country or to advise them that expedited removal only applies to those present for less than two years.

“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,” Wilkins wrote.

Rao, also a Trump appointee, wrote her own concurring opinion to note that Make the Road New York’s lawsuit should have been immediately dismissed because Congress left expedited removal policies to the executive branch’s discretion and courts could not review those decisions.

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