Background
On January 21, 2025, Acting DHS Secretary Benjamin Huffman issued a designation extending expedited removal to the maximum extent permitted by statute — applying it nationwide to any alien who is inadmissible, has not been admitted or paroled, and cannot affirmatively demonstrate two years of continuous physical presence. A companion memorandum issued two days later directed immigration officers on how to exercise enforcement discretion under the expanded authority. Together, the two directives reversed decades of more limited designations, which had generally confined expedited removal to aliens encountered within 100 miles of the border or at ports of entry.
Make the Road New York, an immigrant-advocacy organization, filed suit in the U.S. District Court for the District of Columbia challenging the Designation and the Huffman Memorandum on statutory and constitutional grounds. The organization moved under 5 U.S.C. § 705 to postpone their effective dates. The district court granted the stay in August 2025, concluding under the Mathews v. Eldridge balancing framework that the plaintiffs were likely to succeed on their due-process claim because long-term interior residents face a significant liberty interest and a substantial risk of erroneous removal under the streamlined expedited-removal procedures. The government appealed and sought an emergency stay of the district court’s order, which the D.C. Circuit denied in part in November 2025.
The D.C. Circuit then took up the merits of the appeal. Judge Walker authored the principal opinion, joined in various parts by Judges Wilkins and Rao. Judge Rao filed a separate concurrence in the judgment, and Judge Wilkins concurred in part and dissented in part.
The Court’s Holding
The court vacated the district court’s stay in its entirety. On the four threshold questions — jurisdiction, standing, timeliness, and the district court’s authority to issue a § 705 stay — the court ruled in Make the Road’s favor. Jurisdiction was proper under 8 U.S.C. § 1252(e)(3), which channels systemic constitutional and statutory challenges to DHS written directives to the D.C. district court. The suit was timely because it was filed within 60 days of the January 2025 directives, and each written directive triggers its own 60-day window regardless of whether it incorporates previously existing procedures. Make the Road had associational standing, and the district court was authorized to issue a § 705 APA stay.
Despite clearing those thresholds, the court held that Make the Road had not satisfied even the more plaintiff-friendly sliding-scale standard for a stay. The court focused its analysis on the first factor — likelihood of success on the merits — and concluded that the 2025 expedited-removal expansion does not violate due process. The existing statutory and regulatory framework provides meaningful procedural protections: immigration officers must advise the alien of charges and take a sworn statement, supervisory review is required before a removal order becomes final, credible-fear claims trigger a non-adversarial interview before an asylum officer with supervisory and immigration-judge review, and aliens may present evidence to establish continuous physical presence or other exemptions. Under Mathews v. Eldridge, these procedures are constitutionally adequate even as applied to long-term interior residents.
The court also applied the remaining stay factors against Make the Road as a matter of settled law in the removal context: removal alone does not constitute irreparable injury, the government is harmed when federal courts improperly intrude on executive immigration enforcement, and the public has an interest in the prompt execution of lawful removal orders.
Key Takeaways
- The 2025 DHS designation expanding expedited removal nationwide survives a due-process facial challenge; the procedural safeguards built into the expedited-removal statute — sworn-statement requirements, supervisory review, credible-fear interviews, and immigration-judge review — satisfy Mathews v. Eldridge.
- Each new written DHS directive carries its own 60-day jurisdictional clock under § 1252(e)(3), even if the directive incorporates procedures previously used in earlier, narrower designations; a new directive applied to a new population cannot inherit a prior designation’s timeliness bar.
- An organization with standing to seek vacatur of an agency action may advance any legal theory that would justify vacatur — including due-process theories based on injuries to non-member third parties — so long as the requested remedy would redress the organization’s members’ own injuries.
- In the removal context, all four stay factors presumptively favor the government when the underlying removal is lawful: removal is not irreparable injury, judicial intrusion on immigration enforcement harms the executive, and the public interest supports prompt removal.
Why It Matters
This decision clears a major legal obstacle to the Trump administration’s policy of applying expedited removal at the broadest scale Congress permits, affecting potentially millions of undocumented individuals who have lived in the United States for less than two years. By rejecting the district court’s due-process rationale, the D.C. Circuit signals that the abbreviated procedures of expedited removal — no immigration judge hearing, no ordinary administrative review — are constitutionally sufficient not only at the border but throughout the country’s interior, at least on the facial challenge presented here.
The timeliness and standing rulings also have broad procedural significance. The court’s conclusion that each new written directive opens a fresh 60-day review window preserves meaningful judicial oversight of executive immigration policy changes, foreclosing a strategy of insulating expansions from review by tethering them to decades-old procedures. At the same time, the court’s confirmation that a plaintiff with standing may argue any legal theory supporting vacatur — even theories tied to injuries suffered by non-members — reinforces the broad remedial reach available to advocacy organizations bringing systemic APA challenges.