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Make The Road New York v. McAleenan

United States District Court, District of Columbia

September 27, 2019

MAKE THE ROAD NEW YORK, et al., Plaintiffs,
v.
KEVIN McALEENAN, Acting Secretary of the Department of Homeland Security, et al., Defendants.

          MEMORANDUM OPINION

          KETANJI BROWN JACKSON UNITED STATES DISTRICT JUDGE.

         TABLE OF CONTENTS

         I. Introduction

         ............................................................................................................. 1

         II. Background .............................................................................................................. 7

         A. The Immigration And Nationality Act’s Expedited Removal Provision ............... 7

         B. Agency Implementation Of The INA’s Expedited Removal Provision ............... 12

         1. Prior Section 1225(b)(1)(A)(iii) Expedited Removal Designations ......... 13

         2. Acting DHS Secretary Kevin McAleenan’s Notice Of July 23, 2019 ...... 15

         C. Judicial Review Of Legal Claims Regarding Expedited Removal ...................... 18

         III. Procedural History ................................................................................................ 23

         IV. Motions For Preliminary Injunctions In Cases Challenging Agency Action ........ 25

         V. Analysis .................................................................................................................. 28

         A. Plaintiffs Have A Likelihood Of Succeeding With Respect To Their Administrative Procedure Act (“APA”) Claims ................................................ 29

         1. Plaintiffs Are Likely To Be Able To Demonstrate That Article III’s Jurisdictional And Standing Requirements Are Satisfied ........................ 30

         a. It is likely that this Court has subject-matter jurisdiction to consider Plaintiffs’ APA claims under 28 U.S.C. § 1331 .............................. 31

         b. It is likely that Plaintiffs have associational standing ..................... 43

         2. Plaintiffs Are Likely To Be Able To Establish That The APA Provides A Cause Of Action For Their Claims That DHS Has Committed Procedural Violations ............................................................................................. 49

         a. It is unlikely that the INA provides a cause of action for Plaintiffs’ procedural claims .......................................................................... 51

         b. It is unlikely that the INA commits to agency discretion the process by which the section 1225(b)(1)(A)(iii) expedited removal designation is to be determined ...................................................... 56

         3. Plaintiffs Are Likely To Succeed On The Merits Of Their APA Arguments 65

         a. The APA requires that agencies seek public comment prior to rulemaking, and that they conduct their deliberations so as to minimize the risk of reaching arbitrary and capricious conclusions. 66

         b. It is likely that DHS needed to proceed through notice and comment rulemaking prior to issuing the July 23rd Notice and that no good cause exists for the agency not to have complied with these mandates in this instance .............................................................................. 71

         c. It is likely that the July 23rd Notice resulted from arbitrary and capricious decision making ............................................................ 83

         B. If Plaintiffs’ Members Are Subjected To DHS’s Expanded Expedited Removal Policy During The Pendency Of This Lawsuit, They Will Suffer Irreparable Harm 96

         C. Both The Balance Of The Equities And The Public’s Interest Weigh In Favor Of The Issuance Of A Preliminary Injunction ...................................................... 103

         D. Defendants’ Argument That Any Injunction Can Only Restrict Agency Action As To These Plaintiffs Cannot Be Countenanced ................................................. 107

         VI. Conclusion ........................................................................................................... 119

         I. INTRODUCTION

         Administrative agencies have long been required by law to adhere to certain procedural standards when they evaluate options and assess alternatives with respect to the implementation of policy objectives. See, e.g., 5 U.S.C. § 553(b)–(c) (requiring agencies to provide notice and solicit public participation as part of agency rulemaking, commonly known as “notice and comment”). This is by design; statutory requirements that pertain to how an agency conducts its internal deliberations are intended to promote transparency and to prevent arbitrary decision making by unelected government officials. See Batterton v. Marshall, 648 F.2d 694, 703 (D.C. Cir. 1980) (“The essential purpose of according . . . notice and comment opportunities is to reintroduce public participation and fairness to affected parties after governmental authority has been delegated to unrepresentative agencies.” (footnote omitted)); Wong Yang Sun v. McGrath, 339 U.S. 33, 40–41 (1950), superseded by statute on other grounds (explaining that the Administrative Procedure Act, 5 U.S.C. § 551 et seq., was enacted to supplant unregulated rule making by independent commissions, and that one of the Act’s “fundamental . . . purpose[s]” was “to curtail and change the practice of embodying in one person or agency the duties of prosecutor and judge”). Thus, even when an agency has the authority to make a final policy decision, procedural mandates that constrain its decision making processes operate as safeguards of individual liberty, and therefore, are entirely consistent with foundational democratic and constitutional norms.

         The instant case requires this Court to determine whether, inter alia, the Department of Homeland Security (“DHS”) unlawfully dispensed with core procedural prerequisites when it suddenly announced that the agency was designating undocumented non-citizens who have been in this country for up to two years, and who are located far beyond the border, as eligible for “expedited removal” from the United States. Designating Aliens for Expedited Removal, 84 Fed. Reg. 35, 409, 35, 409 (July 23, 2019).[1] Generally speaking, expedited removal is the statutory authorization that enables federal immigration officers to slate certain undocumented non-citizens for rapid deportation “without further hearing or review[.]” 8 U.S.C. § 1225(b)(1)(A)(i).

         Prior to July 23, 2019, DHS had authorized expedited removal with respect to undocumented non-citizens who arrived in the United States by land only if such persons were encountered near the border and had been in the country for no longer than 14 days. See 84 Fed. Reg. at 35, 409. In a “Notice” that DHS published in the Federal Register on July 23, 2019 (more than two and half years after President Donald Trump issued an executive order that demanded that DHS expand its established expedited removal practices), the agency instantly authorized line immigration-enforcement agents to apply expedited removal to non-citizens encountered anywhere in the United States for up to two years after the non-citizen arrived in the United States, effective immediately. See Id . This abrupt change in the official policies that govern DHS’s deportation practices is the subject of the legal claims that have been presented to the Court in this case.

         Three immigrant-rights organizations-Make the Road New York, La Union Del Pueblo Entero (“LUPE”), and WeCount! (collectively, “Plaintiffs”)-have filed the instant lawsuit against DHS, its Secretary, and other agency officials (collectively, “DHS” or “Defendants”). Plaintiffs allege, among other things, that DHS’s July 23rd Notice violated the Administrative Procedure Act (“APA”), because the agency did not engage in notice and comment rulemaking prior to issuing the July 23rd Notice, and also because DHS failed to take the established flaws in the preexisting expedited removal system into account before it reached the conclusion that the expedited removal process should be applied to a broader category of non-citizens. (See Compl., ECF No. 1, ¶¶ 129–34, 149–51.)[2]

         Before this Court at present is a motion for a preliminary injunction that Plaintiffs have filed “to prevent severe and irreparable harm” to their members while the parties litigate the myriad legal issues that this legal action raises. (Pls.’ Mot. for a Prelim. Inj. (“Pls.’ Mot.”), ECF No. 13, at 2.)[3] The array of legal issues that this Court must ultimately decide includes whether the APA even applies to the expedited-removal designations that the DHS Secretary makes under 8 U.S.C. § 1225(b)(1)(A)(iii)(I), and the parties have made various arguments that, at bottom, relate to that key question. As a threshold matter, Plaintiffs contend that this Court has subject-matter jurisdiction over their APA challenges under the circumstances that are expressly addressed in the Immigration and Nationality Act (“INA”), 8 U.S.C. § 1101 et seq., and that at least seven of their members have Article III standing to pursue the instant APA claims. Plaintiffs also assert that they have a likelihood of success on the merits of their claims that DHS has violated the APA, and that without a preliminary injunction to prevent enforcement of the policy change announced in the July 23rd Notice, their members will suffer irreparable harm. Defendants respond that this Court cannot review Plaintiffs’ claims consistent with its power under Article III, either because Congress intended to preclude the exercise of subject-matter jurisdiction over the Secretary’s expedited removal designations or because Plaintiffs lack standing and a cause of action to bring these kinds of claims. Defendants also maintain that Plaintiffs are unlikely to succeed on the merits of their contention that the July 23rd Notice was procedurally defective or otherwise violates the law.

         For the reasons explained fully below, Plaintiffs’ motion for a preliminary injunction will be GRANTED, and as a result, DHS will be PRELIMINARILY ENJOINED from enforcing the expedited removal expansion that the Acting DHS Secretary prescribed in the July 23rd Notice while the instant claims are being litigated, pending further order of this Court. In short, the Court finds that Plaintiffs are likely to be able to establish successfully that the Court has subject-matter jurisdiction under section 1331 of Title 28 of the United States Code; that the INA’s section 242 (8 U.S.C. § 1252) does not strip the federal courts of jurisdiction over APA claims like the ones that Plaintiffs are asserting; that the APA, rather than the INA, provides the cause of action for Plaintiffs’ procedural claims; and that Congress did not intend to commit implementation of the expedited removal process it authorized entirely to agency discretion such that the APA cause of action is precluded. In addition, given Plaintiffs’ identification of members who attest to being subject to the challenged policy, these Plaintiff-organizations are also likely to be able to demonstrate that they have associational standing, and the Court further finds, at least preliminarily, that the effect of the July 23rd Notice is likely sufficiently binding to qualify as a rule to which the APA’s notice-and-comment procedures apply.

         Plaintiffs are also likely to succeed on the merits of their contention that the July 23rd Notice is arbitrary and capricious, and therefore unlawful, because DHS failed to address significant flaws in the expedited removal system, nor does it appear that the agency considered the potential impact of the expansion of that system on settled undocumented non-citizens and their communities. Unlike private citizens, government officials are required by law to engage in reasoned decision making that takes into account all of the facts and circumstances that are relevant to their consequential policy determinations. Based on the record presented here, the Court finds it likely that, with respect to the July 23rd Notice, DHS failed to do so.

         The Court also concludes that a preliminary injunction is warranted while this lawsuit is pending, because Plaintiffs have demonstrated that they have members who are subject to the expanded expedited removal policy, and that those members, and others, might suffer irreparable harm in the absence of a preliminary injunction. The record also supports a finding that the fear caused by DHS’s current threat to commence enforcement of its expanded expedited removal policy may be presently harming Plaintiffs’ members and others in immigrant communities. Moreover, given the potential for mistaken application of the expedited removal practice to persons who are not otherwise subject to deportation, which has serious implications for society writ large, the Court finds that interim injunctive relief is in the public’s interest, while, on the other hand, it is unlikely that the issuance of such an injunction would harm DHS or the public to such an extent that that injury would outweigh the benefits of preserving the status quo while this matter is under review.

         Finally, in ordering the preliminary relief that Plaintiffs have requested, this Court squarely rejects DHS’s argument that any injunctive relief that is issued in this case, whether preliminary or permanent, can only prohibit application of the agency’s unlawful rule as it applies to these plaintiffs. (See Defs.’ Mem. in Opp’n to the Mot. for Prelim. Inj. (“Defs.’ Opp’n”), ECF No. 25, at 75–76.) This contention is not only flatly inconsistent with the plain language of the APA, it is also entirely impractical when invoked in the realm of judicial review of administrative action. The APA states in no uncertain terms that, to remedy defective rulemaking after a plaintiff successfully challenges the process that an agency has used to promulgate a rule, the reviewing court must “hold unlawful and set aside” the challenged agency action, 5 U.S.C. § 706(2), and that is precisely what this Court’s injunction does, as a preliminary matter, pending full litigation of the issues in this case. This statutorily prescribed remedy has nothing to do with the standing or status of the plaintiff-challengers. Nor is there anything “nationwide” about the resulting prohibition (Defs.’ Opp’n at 75); indeed, such an injunction pertains only to an agency’s act of enacting the defective rule; it is addressed only to the agency that has failed to adhere to the required rulemaking procedures; and it binds only that particular entity with respect to the rule in question. Thus, the injunctive relief that the APA plainly prescribes is a targeted restriction that, by statute, essentially treats an unlawfully promulgated agency rule as void ab initio due to the agency’s failure to adhere to the APA’s procedural mandates.

         Apparently unwilling to accept that required result, the government has conjured up a strawman by insisting that, even when a plaintiff successfully establishes that an agency’s rulemaking is fatally flawed, federal district courts must avoid enjoining an agency rule on a “nationwide” basis. (See Defs.’ Opp’n at 75.) As explained below, injunctions that invalidate procedurally deficient agency rules on APA grounds, and thereby prohibit an agency from enforcing those rules, do no such thing. If this Court’s Order preliminarily prohibiting DHS from enforcing the expedited removal policy the agency announced in the July 23rd Notice reverberates nationally, that is simply and solely because DHS previously decided to apply its potentially defective rule nationwide.

         II. BACKGROUND

         A. The Immigration And Nationality Act’s Expedited Removal Provision

         “The Immigration and Nationality Act sets forth the conditions under which a foreign national may be admitted to and remain in the United States and grants the Department of Homeland Security the discretion to initiate removal proceedings.” R.I.L.-R v. Johnson, 80 F.Supp.3d 164, 171 (D.D.C. 2015) (citing 8 U.S.C. §§ 1181– 82, 1184, 1225, 1227–29, 1306, 1324–25). With respect to the removal of unauthorized non-citizens, the INA, which was enacted in 1952, has always generally provided that “[a]n immigration judge shall conduct proceedings for deciding the inadmissibility or deportability of an alien[, ]” 8 U.S.C. § 1229a(a)(1), and in the context of such proceedings before an immigration judge, the INA makes clear that non-citizens are to be afforded certain rights, including the right to counsel, to examine and cross-examine witnesses, to present evidence, and to appeal, see id. § 1229a(b). However, 44 years after the INA was enacted, Congress undertook an extensive border-security reform effort that ultimately resulted in its adoption of a piece of legislation known as the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 (“IIRIRA”), Pub. L. No. 104-208, Div. C., Title I, 110 Stat. 3009-546 (1996), which authorized an alternative, truncated process for the removal of certain non-citizens.

         To understand the IIRIRA’s impact, it is helpful to have a sense of what preceded it. “Before IIRIRA’s passage, United States immigration law established ‘two types of proceedings in which aliens can be denied the hospitality of the United States: deportation hearings and exclusion hearings.’” Vartelas v. Holder, 566 U.S. 257, 261 (2012) (quoting Landon v. Plasencia, 459 U.S. 21, 25 (1982)). “The deportation hearing [was] the usual means of proceeding against an alien already physically in the United States, and the exclusion hearing [was] the usual means of proceeding against an alien outside the United States seeking admission.” Landon, 459 U.S. at 25. Deportation hearings provided more procedural safeguards than exclusion hearings did, such as notice, the right to appeal, and the right to designate the country of deportation. See Id . at 26. However, “[i]n IIRIRA, Congress abolished the distinction between exclusion and deportation procedures and created a uniform proceeding known as ‘removal.’” Vartelas, 566 U.S. at 262 (citing 8 U.S.C. §§ 1229, 1229a; Judulang v. Holder, 556 U.S. 42, 45–46 (2011)).

         The impetus for this statutory change was, apparently, Congress’s determination that “[e]xisting procedures to deny entry to and to remove illegal aliens from the United States [were] cumbersome and duplicative[.]” H.R. Rep. No. 104-469, at 107 (1996). Thus, Congress reformed those procedures in the IIRIRA, and created a removal process that contained procedural options that varied based on the undocumented non-citizen’s arrival status. The House Committee on the Judiciary explained at the time of the IIRIRA’s enactment that “[a]liens who arrive in the United States with no valid documents will be removed on an expedited basis[, ]” except for those “with credible asylum claims[, ]” who would be allowed to pursue those claims, and “[f]or illegal aliens already present in the U.S., there will be a single form of removal proceeding, with a streamlined appeal and removal process.” Id. at 107–08; see also O.A. v. Trump, Civ. No. 18-2718, 2019 WL 3536334, at *3 (D.D.C. Aug. 2, 2019) (noting that, “[a]mong other changes, IIRIRA established two types of removal proceedings”).

         As relevant here, the IIRIRA explicitly designates certain non-citizens as potentially subject to the fast-track, near-immediate ejection removal procedure that is commonly referred to as “expedited removal.” Specifically, Congress amended section 235 of the INA (presently codified as 8 U.S.C. § 1225) to address “Inspections of aliens arriving in the United States and certain other aliens who have not been admitted or paroled[, ]” and to provide for the “[s]creening” of such individuals, as follows:

(i) In general
If an immigration officer determines that an alien . . . who is arriving in the United States or is described in clause (iii) is inadmissible . . ., the officer shall order the alien removed from the United States without further hearing or review unless the alien indicates either an intention to apply for asylum . . . or a fear of persecution.

8 U.S.C. § 1225(b)(1)(A)(i).[4] Thus, under the IIRIRA’s expedited removal process, “an arriving alien can be denied entry into the U.S. by an immigration officer because of misrepresentation, use of fraudulent documents, or lack of any documents[, ]” and “[t]he alien may be ordered removed without a hearing before an immigration judge, and without administrative or judicial review.” H.R. Rep. No. 104-469, at 157.

         Notably, under federal immigration statutes and their accompanying regulations as they currently exist, there is a substantial difference between being permitted to engage in regular removal proceedings and being subjected to expedited removal. “Regular, or ‘formal, ’ removal proceedings allow aliens to challenge their removal in administrative proceedings with various procedural guarantees, including the rights to written notice of the charge of removability, to counsel, to appear at a hearing before an immigration judge and to present evidence, to appeal an adverse decision to the Board of Immigration Appeals (‘BIA’), and to seek judicial review.” O.A., 2019 WL 3536334, at *3; see also Id . (explaining, further, that “[a]n alien placed in formal removal proceedings may avoid removal by establishing, through the adversarial process, that she is eligible for asylum, withholding of deportation, or some other form of relief”). By contrast, the Code of Federal Regulations makes clear that, for expedited removal, an immigration officer need only question and record the non-citizen’s statement concerning her “identity, alienage, and inadmissibility, ” 8 C.F.R. § 235.3(b)(2)(i), and allow the non-citizen to present evidence that she has been admitted or paroled, see Id . § 235.3(b)(6), before ordering the non-citizen removed. The immigration officer “will attempt to verify the alien’s status through a check of all available Service data systems”; however, “[t]he burden rests with the alien to satisfy the examining immigration officer of the claim of lawful admission or parole.” Id.[5]

         The regulations do require that “[i]nterpretative assistance . . . be used if necessary to communicate with the alien, ” id. § 235.3(b)(2)(i), and if the non-citizen “indicates an intention to apply for asylum, or expresses a fear of persecution or torture, or a fear of return to his or her country, the inspecting officer shall not proceed further with removal of the alien until the alien has been referred for an interview by an asylum officer[, ]” id. § 235.3(b)(4). Once the immigration officer orders the non-citizen removed, a supervisor reviews the order before it is considered final, see Id . § 235.3(b)(7), but there is no right to appeal of the order of removal or to any hearing before an immigration judge, see Id . § 235.3(b)(2)(ii).

         According to the House Judiciary Committee, when Congress adopted expedited removal in the IIRIRA in 1996, it specifically found that rapid removal procedures were “necessary” because “thousands of aliens arrive in the U.S. at airports each year without valid documents and attempt to illegally enter the U.S.[, ]” and it determined that “[u]nless such aliens claim to be U.S. nationals, or state a fear of persecution, there is no requirement under the Constitution or international treaty to do anything other than return them, as promptly as possible, to where they boarded the plane to come here.” H.R. Rep. No. 104-469, at 158. Thus, “[t]he purpose of [the IIRIRA’s expedited removal] provisions is to expedite the removal from the United States of aliens who indisputably have no authorization to be admitted to the United States, while providing an opportunity for such an alien who claims asylum to have the merits of his or her claim promptly assessed by officers with full professional training in adjudicating asylum claims.” H.R. Rep. No. 104-828, at 209 (1996) (Conf. Rep.).

         B. Agency Implementation Of The INA’s Expedited Removal Provision

         As noted, the statutory provision that authorizes expedited removal- section 1225(b)(1) of Title 8 of the United States Code, which is also sometimes referred to as “section 235(b)(1)” of the INA-specifically states that an undocumented non-citizen is subject to removal without a hearing or review if he is “arriving in the United States” or if he is “described in clause (iii)” of that provision. 8 U.S.C. § 1225(b)(1)(A)(i). Clause (iii), in turn, authorizes the Attorney General to “apply” the expedited removal process to “any and all aliens” that fit a broad category of undocumented non-citizens that Congress generally describes, “as designated by the Attorney General[.]” Id. § 1225(b)(1)(A)(iii)(I). And the statute further describes the category of persons from which the Attorney General may choose to designate classes of individuals for expedited removal, as follows: “[a]n alien described in this clause is an alien . . . who has not been admitted or paroled into the United States, and who has not affirmatively shown, to the satisfaction of an immigration officer, that the alien has been physically present in the United States continuously for the 2-year period immediately prior to the date of the determination of inadmissibility[.]” Id. § 1225(b)(1)(A)(iii)(II).

         The statute also states that the designation of which particular classes of “aliens” will be subject to expedited removal within the scope of this provision will be made “in the sole and unreviewable discretion” of the Attorney General and “may be modified at any time.” Id. § 1225(b)(1)(A)(iii)(I); see also H.R. Rep. No. 104-828, at 209 (“The provisions also may be applied, in the sole and unreviewable discretion of the Attorney General, to an alien who has not been paroled or admitted into the United States and who cannot affirmatively show to an immigration officer that he or she has been continuously present in the United States for a period of 2 years immediately prior to the date of the officer’s determination.”). To date, the Attorney General and DHS (the agency to whom the Attorney General has now delegated his authority to make clause (iii) designations have identified classes of non-citizens that will be subject to the INA’s expedited removal process, per section 1225(b)(1)(A)(iii), on four occasions.

         1. Prior Section 1225(b)(1)(A)(iii) Expedited Removal Designations

         First, when the IIRIRA’s expedited removal provision initially went into effect (on April 1, 1997), Attorney General Janet Reno opted to subject to expedited removal only “arriving aliens” seeking entry into the United States. See 62 Fed. Reg. 10, 312, 10, 312–13 (Mar. 6, 1997).[6] Thus, no foreign national who was already inside the United States and who had not been admitted or paroled was initially exposed to the expedited removal process. See Id . Moreover, the Attorney General expressly “acknowledge[d] that application of the expedited removal provisions to aliens already in the United States [would] involve more complex determinations of fact and [would] be more difficult to manage”; therefore, the government sought “to gain insight and experience by initially applying these new provisions on a more limited and controlled basis.” Id.

         In 2002, the Immigration and Naturalization Service invoked the authority that had been given to it under section 1225(b)(1)(A)(iii) to designate as subject to expedited removal “all aliens who arrive in the United States by sea, either by boat or other means, who are not admitted or paroled, and who have not been physically present in the United States continuously for the two-year period prior to a determination of inadmissibility by a Service officer[.]” 67 Fed. Reg. 68, 924, 68, 925 (Nov. 13, 2002). The agency justified this new designation by stating that it “believe[d] that implementing the expedited removal provisions, and exercising its authority to detain this class of aliens . . ., will assist in deterring surges in illegal migration by sea, including potential mass migration, and preventing loss of life.” Id. at 68, 924. According to the agency, the designation “will deter additional aliens from taking to the sea and traveling illegally to the United States. Illegal migration by sea is perilous and the Department of Justice has repeatedly cautioned aliens considering similar attempts to reject such a hazardous voyage.” Id. at 68, 925.

         In 2004, DHS[7] exercised its designation authority once more, expanding expedited removal beyond those individuals who arrive by sea, to include “[a]liens . . . who are encountered by an immigration officer within 100 air miles of any U.S. international land border, and who have not established to the satisfaction of an immigration officer that they have been physically present in the U.S. continuously for the 14-day period immediately prior to the date of encounter.” 69 Fed. Reg. 48, 877, 48, 880 (Aug. 11, 2004). According to the agency, “exercising its statutory authority to place these individuals in expedited removal proceedings will enhance national security and public safety by facilitating prompt immigration determinations, enabling DHS to deal more effectively with the large volume of persons seeking illegal entry, and ensure removal from the country of those not granted relief, while at the same time protecting the rights of the individuals affected.” Id. at 48, 877. The agency maintained that expedited removal is “a valuable tool[, ]” and that, “[p]resently DHS officers cannot apply expedited removal procedures to the nearly 1 million aliens who are apprehended each year in close proximity to the borders after illegal entry”; the agency also emphasized that “[i]t is not logistically possible for DHS to initiate formal removal proceedings against all such aliens.” Id. at 48, 878.

         DHS further acknowledged that “[t]his is primarily a problem along the southern border, and thus the majority of such aliens are Mexican nationals, who are ‘voluntarily’ returned to Mexico without any formal removal order[, ]” and “[b]ased upon anecdotal evidence, many of those who are returned to Mexico seek to reenter the U.S. illegally, often within 24 hours of being voluntarily returned[.]” Id. Additionally, “[b]ecause DHS lacks the resources to detain all third-country nationals (aliens who are neither nationals of Mexico nor Canada) who have been apprehended after illegally crossing into the U.S. from both the northern and southern land borders, many of these aliens are released in the U.S. each year with a notice to appear for removal proceedings[, ]” but, the agency noted, “[m]any of these aliens subsequently fail to appear for their removal proceedings, and then disappear in the U.S.” Id.

         2. Acting DHS Secretary Kevin McAleenan’s Notice Of July 23, 2019

         DHS’s third and most recent expansion of the expedited removal designation occurred on July 23, 2019, and is the subject of Plaintiffs’ complaint. On that date, the Acting Secretary of DHS issued a “Notice” in the Federal Register that stated that he was “exercising his statutory authority through this Notice to designate for expedited removal the following categories of aliens not previously designated[, ]” 84 Fed. Reg. at 35, 409, effective immediately:

[a]liens . . . who either (a) did not arrive by sea, are encountered by an immigration officer anywhere in the United States more than 100 air miles from a U.S. international land border, and have not been physically present in the United States continuously for the two-year period immediately prior to the date of the determination of inadmissibility, or (b) did not arrive by sea, are encountered by an immigration officer within 100 air miles from a U.S. international land border, and have been physically present in the United States continuously at least 14 days but less than two years immediately prior to the date of the determination of inadmissibility.

Id. at 35, 414; see also Id . at 35, 410. According to the Notice, this “New Designation” (as the Notice refers to it) is intended to “harmonize the authorization for aliens arriving by land with the existing authorization for aliens arriving by sea.” Id. at 35, 409. Thus, while distance from the border, means of arrival, and the relative recency of an undocumented non-citizen’s arrival in the United States had previously been distinguishing factors that determined one’s risk of being subjected to expedited removal, under DHS’s New Designation, an undocumented non-citizen who arrives by land and is “encountered” anywhere in the United States “bears the affirmative burden to show to the satisfaction of an immigration officer that the alien has been present in the United States continuously” for at least two years, id. at 35, 414, and if he is unable to satisfy this burden, he can be subjected to expedited removal, at the discretion of an immigration official.[8]

         Acting DHS Secretary McAleenan’s July 23rd Notice spells out reasons for the agency’s reasons for pursuing this policy change. The Notice maintains that the New Designation will “enhance national security and public safety-while reducing government costs-by facilitating prompt immigration determinations.” Id. at 35, 409. The agency states that it “is issuing the New Designation to use more effectively and efficiently its limited resources to fulfill its mission to enforce the immigration laws and ensure the security of the Nation’s borders[, ]” and that “[f]ully implementing expedited removal will help to alleviate some of the burden and capacity issues currently faced by DHS and [the Department of Justice] by allowing DHS to remove certain aliens encountered in the interior more quickly, as opposed to placing those aliens in more time-consuming removal proceedings.” Id. at 35, 411. Additionally, “ICE will be able to use expedited removal for certain aliens who[m] it arrests in the interior, which will likely result in those aliens spending less time in ICE detention than if they were placed in full removal proceedings[, ]” which “will more quickly make available additional ICE bed space, which can be used for additional interior arrests and removals.” Id. Finally, the agency explains that it “expects that the New Designation will help mitigate additional backlogs in the immigration courts and will reduce the significant costs to the government associated with full removal proceedings before an immigration judge, including the costs of a longer detention period and government representation in those proceedings.” Id. at 35, 412.

         Whatever its motivation, per the July 23rd Notice, DHS has now designated for expedited removal the entire category of persons that the INA’s section 235(b)(1)(A)(iii)(II) describes. DHS implemented this policy change approximately 30 months after President Trump signed an Executive Order specifically calling on DHS to expand expedited removal to its full possible scope, see Exec. Order No. 13, 767, Border Security and Immigration Enforcement Improvements, 82 Fed. Reg. 8, 793, 8, 796 (Jan. 30, 2017), and some 29 months after former Secretary of DHS John Kelly issued a memorandum that expressed DHS’s intention to expand the application of the expedited removal process, as the President requested.[9] In the time that elapsed between then-DHS Secretary Kelly’s memorandum of February 20, 2017, and the Federal Register Notice of July 23, 2019, DHS did not issue a proposed rule that notified the public that the agency was considering this change, nor did it otherwise solicit public comment regarding its generally expressed intent to expand the expedited removal designation to the fullest extent authorized by statute. However, the July 23rd Notice itself invites “[i]nterested persons” to “submit written comments” about the New Designation, via the federal government’s rulemaking website. 84 Fed. Reg. at 35, 410.

         C. Judicial Review Of Legal Claims Regarding Expedited Removal

         The IIRIRA not only establishes that certain undocumented non-citizens can be designated in the sole discretion of administrative authorities as subject to the expedited removal process, it also addresses whether and to what extent the federal courts can entertain challenges to various aspects of the statutorily prescribed expedited removal scheme. Indeed, as part of its enactment of the IIRIRA, Congress crafted an entirely new judicial review provision within the INA that is expressly entitled “Judicial review of orders of removal[, ]” 8 U.S.C. § 1252, which is codified at section 1252 of Title 8 of the United States Code, and is also known as “section 242.” See also IIRIRA, Pub. L. No. 104-208, Div. C., Title I, § 306, 110 Stat. 3009-546, 607–12 (1996).

         Two subsections of the aforementioned judicial review provision plainly pertain to this Court’s review of claims relating to the statutory section that authorizes expedited removal (8 U.S.C. § 1225(b)(1)): namely, sections 1252(a)(2)(A) and 1252(e). See 8 U.S.C. § 1252(a)(2)(A) (“Review relating to section 1225(b)(1)”); id. § 1252(e)(“Judicial review of orders under section 1225(b)(1)”). To aid the reader, relevant portions of these two sections, and others, are appended to this Memorandum Opinion in their entirety. (See infra, Appendix.)

         Section 1252(a)(2)(A) is the first of a series of judicial review provisions that Congress lays out in the IIRIRA regarding “[m]atters not subject to judicial review.” 8 U.S.C. § 1252(a)(2) (emphasis added). Prior to broaching this subject, the statute plainly distinguishes, on the one hand, judicial review of final orders of removal that result from standard removal procedures (which are reviewed by Courts of Appeals), see Id . § 1252(a)(1); see also O.A., 2019 WL 3536334, at *9, from, on the other hand, judicial review of final orders of removal that result from the section 1225(b)(1) expedited removal process. Section 1252(a)(2) then lists “[r]eview relating to section 1225(b)(1)” as the first of four categories of matters concerning removal orders in which judicial review has been restricted. That section reads, in relevant part:

(2) Matters not subject to judicial review
(A) Review relating to section 1225(b)(1)
Notwithstanding any other provision of law (statutory or nonstatutory), [10] . . . no court shall have jurisdiction to review-
(i) except as provided in subsection (e), any individual determination or to entertain any other cause or claim arising from or relating to the implementation or operation of an order of removal pursuant to section 1225(b)(1) of this title,
(ii) except as provided in subsection (e), a decision by the Attorney General to invoke the provisions of such section,
(iii) the application of such section to individual aliens, including the determination made under section 1225(b)(1)(B) of this title, or
(iv) except as provided in subsection (e), procedures and policies adopted by the Attorney General to implement the provisions of section 1225(b)(1) of this title.

8 U.S.C. § 1252(a)(2)(A).

         The IIRIRA’s judicial review provision thus plainly homes in on the expedited removal process prescribed in section 1225(b)(1), and generally prohibits courts from exercising jurisdiction with respect to four categories of legal actions-to wit, actions that challenge: (1) “individual determinations” or bring “any other cause or claim arising from or relating to the implementation or operation of an order of [expedited] removal, ” id. § 1252(a)(2)(A)(i); (2) the Attorney General’s decision “to invoke the provisions” of the expedited removal statute, id. § 1252(a)(2)(A)(ii); (3) “the application of” the expedited removal statute “to individual aliens, ” including the consideration and resolution of asylum claims made by individuals subject to expedited removal, id. § 1252(a)(2)(A)(iii); and (4) the “procedures and policies” that the Attorney General adopts “to implement the provisions” of the expedited removal statute, id. § 1252(a)(2)(A)(iv). See also H.R. Rep. No. 104-828, at 219 (explaining that, in general, under section 1252(a)(2)(A), “no court shall have jurisdiction to review any individual determination or cause or claim arising from the implementation or operation of an order of removal” under the expedited removal statute, and no court can “review . . . a decision by the Attorney General to invoke [the expedited removal statute], the application of such section to individual aliens (including the determination . . . regarding credible fear of persecution), or . . . procedures and policies to implement [the expedited removal provision]”). Significantly for present purposes, with one exception, Congress has made each of these jurisdictional limitations expressly subject to the provisions of subsection (e). See 8 U.S.C. § 1252(a)(2)(A)(i), (ii), (iv) (opening with “except as provided in subsection (e)” (emphasis added)). And in so doing, the statute carves out exceptions to the jurisdictional restrictions, and also further clarifies what courts can and cannot do with respect to legal challenges that relate to the expedited removal process.

         For its part, section 1252(e) is entitled “Judicial review of orders under section 1225(b)(1)[.]” Id. § 1252(e). The section has five subdivisions, each of which speaks to one or more aspects of a federal court’s power to review certain types of claims and/or afford certain types of relief. See, e.g., id. § 1252(e)(1) (addressing “[l]imitations on relief[, ]” and prohibiting, among other things, “declaratory, injunctive or other equitable relief in any action pertaining to an order to exclude an alien in accordance with section 1225(b)(1)” except under specified circumstances); id. § 1252(e)(2) (permitting habeas review of expedited removal orders, with limitations); id. § 1252(e)(5) (providing, with respect to a case in which “an alien has been ordered removed under section 1225(b)(1)[, ]” that the court’s “[s]cope of inquiry” is restricted to a determination of “whether such an order in fact was issued and whether it relates to the petitioner” and does not include “whether the alien is actually inadmissible”); see also H.R. Rep. No. 104-828, at 219 (explaining that “[i]ndividual determinations under [section 1225(b)(1)] may only be reviewed under [section 1252(e)(1)–(2)]”). It is the third subdivision of subsection (e)-8 U.S.C. § 1252(e)(3)-that is most pertinent for present purposes, as it forms the basis for many of the jurisdictional claims and arguments that are at issue in this case.

         The title of section 1252(e)(3) is “[c]hallenges on validity of the system[.]” 8 U.S.C. § 1252(e)(3). In their entirety, the provisions of that statute state:

(3) Challenges on validity of the system
(A) In general
Judicial review of determinations under section 1225(b) of this title and its implementation is available in an action instituted in the United States District Court for the District of Columbia, but shall be limited to determinations of-
(i) whether such section, or any regulation issued to implement such section, is constitutional; or
(ii) whether such a regulation, or a written policy directive, written policy guideline, or written procedure issued by or under the authority of the Attorney General to implement such section, is not consistent with applicable provisions of this subchapter or is otherwise in violation of law.
(B) Deadlines for bringing actions
Any action instituted under this paragraph must be filed no later than 60 days after the date the challenged section, regulation, directive, guideline, or procedure described in clause (i) or (ii) of subparagraph (A) is first implemented.
(C) Notice of appeal
A notice of appeal of an order issued by the District Court under this paragraph may be filed not later than 30 days after the date of issuance of such order.
(D) Expeditious consideration of cases
It shall be the duty of the District Court, the Court of Appeals, and the Supreme Court of the United States to advance on the docket and to expedite to the greatest possible extent the disposition of any case considered under this paragraph.

Id. From the plain language of the text of this provision, it is clear that the statute comprehensively addresses the particular circumstances under which challenges to the validity of the expedited removal system are not permitted, see H.R. Rep. No. 104-828, at 220–21 (“[J]udicial review . . . is limited to whether [section 1225(b)(1)], or any regulations issued pursuant to that section, is constitutional, or whether the regulations, or a written policy directive, written policy guidance, or written procedures issued by the Attorney General are consistent with the INA or other law.”), as well as the time frame in which any such challenge must be brought and considered.

         III. PROCEDURAL HISTORY

         As explained in Part I.B.2, above, on July 23, 2019, Acting DHS Secretary Kevin McAleenan announced that the agency was “exercis[ing] the full remaining scope of its statutory authority to place in expedited removal, with limited exceptions, aliens determined to be inadmissible . . . who have not been admitted or paroled into the United States, and who have not affirmatively shown, to the satisfaction of an immigration officer, that they have been physically present in the United States continuously for the two-year period immediately preceding the date of the determination of inadmissibility.” 84 Fed. Reg. at 35, 409. Plaintiffs filed the instant lawsuit on August 6, 2019 (see Compl.), bringing six claims under the APA, the INA, and the Constitution. Plaintiffs specifically allege that, “[i]n addition to violating the APA, expanding expedited removal to individuals apprehended in the interior of the United States who have been living in the country for extended periods of time violates the Due Process Clause of the Fifth Amendment, because it deprives them a meaningful opportunity and process to contest removal before they are deported.” (Id. ¶ 11.) Additionally, Plaintiffs claim that “the expanded use of expedited removal violates federal statutes requiring that noncitizens appearing before an immigration officer or immigration judge be permitted to be represented by counsel.” (Id.)

         Plaintiffs filed a motion for a preliminary injunction on August 8, 2019, seeking to enjoin Defendants from applying expedited removal as laid out in the notice of July 23, 2019, pending the resolution of their lawsuit. (See Pls.’ Mot.) Per an Order of the Court that issued on August 14, 2019 (see Min. Order of Aug. 14, 2019), the parties proceeded to brief the issues raised in Plaintiffs’ preliminary injunction motion, including concerns that defense counsel had raised in a conference call with Plaintiffs and the Court regarding Plaintiffs’ standing to pursue their claims. (See Pls.’ Suppl. Br. in Supp. of Prelim. Inj. (“Pls.’ Suppl. Br.”), ECF No. 23; Defs.’ Opp’n, ECF No. 25; Pls.’ Reply in Supp. of Mot. for Prelim. Inj. (“Pls.’ Reply”), ECF No. 28.)[11]

         In the motion for a preliminary injunction, Plaintiffs argue that they have associational standing to bring this lawsuit (see generally Pls.’ Suppl. Br.); that they are likely to succeed on the merits of their individual claims (see Pls.’ Mem. in Supp. of Pls.’ Mot. (“Pls.’ Mem.”), ECF No. 13-1, at 25–52); and that the remaining factors that the Court must consider in assessing whether or not to grant preliminary injunctive relief weigh in their favor (see Id . at 52–55). Defendants respond in opposition that Plaintiffs’ claims are not justiciable, because the Court lacks subject-matter jurisdiction (see Defs.’ Opp’n at 33–36); that Plaintiffs lack standing (see Id . at 36–41); and that Plaintiffs lack a cause of action to bring their claims under the APA (see Id . at 41–46). Defendants further maintain that Plaintiffs’ claims are meritless (see Id . at 46–72), and that the remaining preliminary-injunction factors weigh in DHS’s favor (see Id . at 72– 75). Finally, Defendants insist that “any interim relief must be sharply limited.” (Id. at 75 (capitalization altered).)

         This Court held a hearing regarding Plaintiffs’ motion for a preliminary injunction on September 6, 2019, and took the motion under advisement. (See Min. Entry of Sept. 6, 2019; Hr’g Tr. (“AM Hr’g Tr.”), ECF ...


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