Make The Road New York v. Chad F. Wolf ( 2020 )

United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT
Argued March 6, 2020 Decided June 23, 2020
No. 19-5298
MAKE THE ROAD NEW YORK, ET AL.,
APPELLEES
v.
CHAD F. WOLF, ACTING SECRETARY OF THE DEPARTMENT OF
HOMELAND SECURITY, IN HIS OFFICIAL CAPACITY, ET AL.,
APPELLANTS
Appeal from the United States District Court
for the District of Columbia
(No. 1:19-cv-02369)
Scott G. Stewart, Deputy Assistant Attorney General, U.S.
Department of Justice, argued the cause for appellants. With
him on the briefs was Erez Reuveni, Assistant Director, U.S.
Department of Justice.
Michael M. Hethmon was on the brief for amicus curiae
Immigration Reform Law Institute in support of appellants.
Anand Balakrishnan argued the cause for appellees. With
him on the brief were Omar C. Jadwat, Michael Tan, Celso
Perez, Trina Realmuto, Kristin Macleod-Ball, Karolina J.
Walters, Stephen B. Kang, Julie Veroff, Arthur B. Spitzer, Scott
2
Michelman, Jonathan K. Youngwood, Susannah S. Geltman,
Joshua Polster, and Adrienne V. Baxley.
Xavier Becerra, Attorney General, Office of the Attorney
General for the State of California, Antonette Benita Cordero,
Laura Faer, Vilma Palma-Solana, Anthony Seferian, Deputy
Attorneys General, Office of the Attorney General for the State
of California, William Tong, Attorney General, Office of the
Attorney General for the State of Connecticut, Clare Kindall,
Solicitor General for the State of Connecticut, Clare E.
Connors, Attorney General, Office of the Attorney General for
the State of Hawaii, Kimberly Tsumoto Guidry, Solicitor
General for the State of Hawaii, Aaron M. Frey, Attorney
General, Office of the Attorney General for the State of Maine,
Laura E. Jensen, Assistant Attorney General, Office of the
Attorney General for the State of Maine, Philip J. Weiser,
Attorney General, Office of the Attorney General for the State
of Colorado, Eric R. Olson, Solicitor General for the State of
Colorado, Kathleen Jennings, Attorney General, Office of the
Attorney General for the State of Delaware, Christian Douglas
Wright, Director of Impact Litigation, Office of the Attorney
General for the State of Delaware, Kwame Raoul, Attorney
General, Office of the Attorney General for the State of Illinois,
Sarah A. Hunger, Deputy Solicitor General for the State of
Illinois, Maura Healey, Attorney General, Office of the
Attorney General for the Commonwealth of Massachusetts,
Robert E. Toone, Assistant Attorney General, Office of the
Attorney General for the Commonwealth of Massachusetts,
Keith Ellison, Attorney General, Office of the Attorney
General for the State of Minnesota, Kathryn Iverson Landrum,
Assistant Attorney General, Office of the Attorney General for
the State of Minnesota, Gurbir S. Grewal, Attorney General,
Office of the Attorney General for the State of New Jersey,
Glenn J. Moramarco, Assistant Attorney General, Office of the
Attorney General for the State of New Jersey, Brian E. Frosh,
3
Attorney General, Office of the Attorney General for the State
of Maryland, Adam D. Snyder, Deputy Chief of Litigation,
Office of the Attorney General for the State of Maryland, Dana
Nessel, Attorney General, Office of the Attorney General for
the State of Michigan, Fadwa A. Hammoud, Solicitor General
for the State of Michigan, Aaron D. Ford, Attorney General,
Office of the Attorney General for the State of Nevada, Heidi
Parry Stern, Solicitor General for the State of Nevada, Letitia
James, Attorney General, Office of the Attorney General for
the State of New York, Steven C. Wu, Deputy Solicitor General
for the State of New York, Josh Shapiro, Attorney General,
Office of the Attorney General for the Commonwealth of
Pennsylvania, Aimee D. Thomson, Deputy Attorney General,
Office of the Attorney General for the Commonwealth of
Pennsylvania, Thomas J. Donovan, Jr., Attorney General,
Office of the Attorney General for the State of Vermont,
Benjamin D. Battles, Solicitor General for the State of
Vermont, Hector Balderas, Attorney General, Office of the
Attorney General for the State of New Mexico, Tania Maestas,
Chief Deputy Attorney General, Brian E. McMath, Assistant
Attorney General, Office of the Attorney General for the State
of New Mexico, Ellen F. Rosenblum, Attorney General, Office
of the Attorney General for the State of Oregon, Jona
Maukonen, Assistant Attorney General, Office of the Attorney
General for the State of Oregon, Peter F. Neronha, Attorney
General, Office of the Attorney General for the State of Rhode
Island, Adam D. Roach, Special Assistant Attorney General,
Office of the Attorney General for the State of Rhode Island,
Robert W. Ferguson, Attorney General, Office of the Attorney
General for the State of Washington, Noah Guzzo Purcell,
Solicitor General for the State of Washington, Mark R.
Herring, Attorney General, Office of the Attorney General for
the Commonwealth of Virginia, Toby J. Heytens, Solicitor
General for the Commonwealth of Virginia, Karl A. Racine,
Attorney General, Office of the Attorney General for the
4
District of Columbia, and Loren L. AliKhan, Solicitor General
for the District of Columbia, were on the brief for amici curiae
The State of California, et al. in support of appellees.
Richard Caldarone, Paul J. Nathanson, and Kenneth L.
Wainstein were on the brief for amici curiae The Tahirih
Justice Center, et al. in support of appellees.
William J. Trunk and Megan D. Browder were on the brief
for amici curiae Former Homeland Security and Immigration
Officials in support of appellees.
Before: MILLETT and RAO, Circuit Judges, and EDWARDS,
Senior Circuit Judge.
Opinion for the Court filed by Circuit Judge MILLETT.
Dissenting opinion filed by Circuit Judge RAO.
MILLETT, Circuit Judge: Federal law commits to the “sole
and unreviewable discretion” of the Secretary of Homeland
Security the decision whether to subject certain individuals
present in the United States without documentation to
“expedited removal.” 8 U.S.C. § 1225(b)(1)(A)(iii)(I). In July
2019, the Secretary decided to expand the reach of the
expedited removal process to its statutory limit, sweeping in all
individuals without documentation who have resided in the
United States for less than two years.
Three organizations whose members are covered by that
expansion (“Associations”) filed suit, contending that the
Secretary’s decision violated the Administrative Procedure Act
(“APA”), 5 U.S.C. §§ 551 et seq., the Immigration and
Nationality Act (“INA”), 8 U.S.C. §§ 1225(a)–(b), 1362, the
Due Process Clause of the Fifth Amendment, U.S. CONST.
5
Amend. V, and the Suspension Clause, U.S. CONST., Art. I, § 9,
cl. 2. The district court granted a preliminary injunction
against the expansion based only on the APA claims, leaving
the INA and constitutional claims unaddressed.
We hold that the district court properly exercised
jurisdiction over the Associations’ case. But because Congress
committed the judgment whether to expand expedited removal
to the Secretary’s “sole and unreviewable discretion,” 8 U.S.C.
§ 1225(b)(1)(A)(iii)(I), the Secretary’s decision is not subject
to review under the APA’s standards for agency
decisionmaking. Nor is it subject to the APA’s notice-and-
comment rulemaking requirements. For those reasons, we
reverse the district court’s grant of a preliminary injunction and
remand for further proceedings consistent with this decision.
I
A
1
Congress created the process of “expedited removal” as
part of the Illegal Immigration Reform and Immigrant
Responsibility Act of 1996 (“IIRIRA”), Pub. L. No. 104-208,
§ 302, 110 Stat. 3009-546, 3009-579 (1996) (codified at 8
U.S.C. §§ 1225, 1252). Before IIRIRA, an individual in the
United States without proper documentation could be
considered “deportable,” 8 U.S.C. § 1251(a) (1995), if, among
other things, that person had “entered the United States without
inspection or at any time or place other than as designated by
the Attorney General[,]” see id. § 1251(a)(1)(B) (1995). A
determination of deportability entailed a hearing before a
special inquiry officer in which the individual had the right to
be represented, to examine the government’s evidence, and to
present evidence on his or her behalf. See id. § 1252(b) (1995).
6
An officer’s determination that an individual was deportable
was subject to judicial review. See id. § 1105a (1995).
Congress adopted IIRIRA’s expedited removal scheme
to substantially shorten and speed up the removal process.
Expedited removal may be applied to those “who [are] arriving
in the United States[,]” 8 U.S.C. § 1225(b)(1)(A)(i), as well as
to individuals who are not admitted or paroled and who have
“not affirmatively shown” to the immigration officer’s
satisfaction that they have been “physically present in the
United States continuously for the 2-year period immediately
prior to the date of the determination of inadmissibility[,]” id.
§ 1225(b)(1)(A)(iii)(II). IIRIRA leaves it to the Secretary to
designate which groups of individuals who fall within the two-
year statutory range will be subject to expedited removal, in a
provision we shall refer to as the “Designation Provision.” See
id. § 1225(b)(1)(A)(iii)(I) (“The Attorney General may apply
[expedited removal] to any or all aliens described in
[§ 1225(b)(1)(A)(iii)(II)].”) (emphasis added). Any such
decision about the scope of expedited removal’s operation
within statutory limits is expressly committed to the
Secretary’s “sole and unreviewable discretion,” and the
Secretary may modify such a decision “at any time.” Id.1
Expedited removal lives up to its name. Under IIRIRA, an
immigration officer may determine that an individual is
inadmissible because she does not have a valid entry document
or other suitable travel document, or because she has obtained
a visa through misrepresentation. See 8 U.S.C.
§ 1225(b)(1)(A)(i); see also id. § 1182(a)(6)(C), (7). If that
individual falls within the class of persons subject to expedited
1
IIRIRA confers this authority on the Attorney General, but that
power has since been transferred to the Secretary of Homeland
Security. See 8 U.S.C. § 1103(a); see also 6 U.S.C. § 251; Clark v.
Martinez, 543 U.S. 371, 374 n.1 (2005).
7
removal, an immigration “officer shall order the alien
removed * * * without further hearing or review unless the
alien indicates either an intention to apply for asylum * * * or
a fear of persecution.” Id. § 1225(b)(1)(A)(i). Absent such an
indication, all that stands between that individual and removal
is a paper review by the officer’s supervisor. See 8 C.F.R.
§ 235.3(b)(7).
The process is scarcely more involved for individuals who
assert an intention to apply for asylum or a fear of persecution.
See 8 U.S.C. § 1225(b)(1)(A). Those persons are referred for
an interview with an immigration officer who decides whether
they have a “credible fear of persecution[.]” Id.
§ 1225(b)(1)(A)(ii), (B)(ii). The interviewing officer prepares
a written record of the credible-fear determination, including
the facts relied upon and the officer’s analysis. See id.
§ 1225(b)(1)(B)(iii)(II). If the officer finds no credible fear of
persecution, the individual’s only recourse is review by an
immigration judge. See id. § 1225(b)(1)(B)(iii)(III). That
highly expedited review is meant to conclude within 24 hours.
Id. The immigration judge’s review is final—no administrative
or judicial review follows. See id. § 1225(b)(1)(C); id.
§ 1252(a)(2)(A)(iii).
Because of the Executive Branch’s past concerns about
expedited removal’s administrability and accuracy in
application, the Secretary had long chosen to apply those
abrupt procedures only to narrow classes of individuals. See
Inspection and Expedited Removal of Aliens, 62 Fed. Reg.
10,312, 10,313 (March 6, 1997). In particular, the government
has expressed concerns that the “application of the expedited
removal provisions” to individuals “already in the United
States will involve more complex determinations of fact and
will be more difficult to manage[.]” Id. For that reason, the
Secretary initially opted to apply expedited removal only to
8
“arriving” individuals, defined as those “who seek[] admission
to or transit through the United States * * * at a port-of-entry,”
or who are “interdicted in international or United States waters
and brought into the United States by any means[.]” Id. at
10,313, 10,330; see also id. at 10,313 (rejecting one
commenter’s suggestion that the definition of “arriving alien”
“be expanded to include aliens who have been present for less
than 24 hours” because of the “difficulty not only in
establishing that the alien entered without inspection, but also
in determining the exact time of the alien’s arrival”).
In 2002, the Secretary expanded expedited removal to all
unadmitted individuals who arrived by sea and who had been
continuously present in the United States for less than two
years. See Notice Designating Aliens Subject to Expedited
Removal Under Section 235(b)(1)(A)(iii) of the Immigration
and Nationality Act, 67 Fed. Reg. 68,924, 68,925–68,926
(Nov. 13, 2002).
In 2004, the Secretary again expanded expedited removal
to include all individuals, not paroled or admitted, who were
encountered within fourteen days of entry and within 100 air
miles of any United States international border. See
Designating Aliens for Expedited Removal, 69 Fed. Reg.
48,877, 48,879 (Aug. 11, 2004). With the exception of
expedited removal’s expansion to Cuban nationals, the 2004
designation remained in place for the next fifteen years. See
Designating Aliens for Expedited Removal, 84 Fed. Reg.
35,409 (July 23, 2019); see also Eliminating Exception to
Expedited Removal Authority for Cuban Nationals
Encountered in the United States or Arriving by Sea, 82 Fed.
Reg. 4902, 4904 (Jan. 17, 2017).
9
2
On January 25, 2017, President Trump directed the then-
Secretary of Homeland Security John Kelly to expand
expedited removal to its full statutory limits. See Exec. Order
No. 13,767, Border Security and Immigration Enforcement
Improvements, 82 Fed. Reg. 8793, 8796 (Jan. 30, 2017).
That directive, though, remained unimplemented for the
next two and a half years. Not until July 2019 did the then-
Acting Secretary Kevin McAleenan publish an announcement
in the Federal Register expanding expedited removal to its full
statutory limits so that it would reach all covered individuals
who had been in the United States for less than two continuous
years. See 84 Fed. Reg. at 35,413–35,414. The Secretary cited
as the basis for his decision the “increasing numbers” of
individuals who “have been detained after being apprehended
within the interior of the United States[.]” Id. at 35,411. The
Secretary also emphasized how fast such expedited removals
occur—on average, within 11.4 days. Id. Like prior
expansions, the July 2019 notice—which we will refer to as the
“Expansion Designation”—went into immediate effect. Id. at
35,413.
3
IIRIRA also adopted a web of jurisdictional provisions
governing review of both the Secretary’s designation decisions
and of removals. Three of them are at issue here.
First, 8 U.S.C. § 1252(a)(2)(A) is the jurisdictional
provision that governs the expedited removal program. It
provides that “no court shall have jurisdiction to review”
matters relating to expedited removal, including “procedures
and policies adopted by the [Secretary] to implement the
[expedited removal] provisions of section 1225(b)(1)[.]” 8
10
U.S.C. § 1252(a)(2)(A)(iv); see also id. § 1252(a)(2)(A)(i)–
(iii).
Second, Subsection 1252(a)(2)(A)’s bar on judicial review
of the expedited removal process is subject to enumerated
exceptions. See 8 U.S.C. § 1252(a)(2)(A)(i, ii, & iv); see also
id. § 1252(e). As relevant here, Congress expressly provided
that an action may be “instituted in the United States District
Court for the District of Columbia” to review whether “any
regulation issued to implement [Section 1225(b)] is
constitutional,” and whether “a regulation, or a written policy
directive, written policy guideline, or written procedure issued
by * * * [the Secretary] to implement” Section 1225(b) “is
otherwise in violation of law.” Id. § 1252(e)(3)(A).
Third, Subsection 1252(a)(2)(B) bars judicial review of
“any judgment regarding the granting of relief” under various
statutory provisions involving “[d]enials of discretionary
relief,” and “any other decision or action of the * * *
Secretary * * * the authority for which is specified under this
subchapter to be in the discretion of the * * * Secretary,” other
than a grant of asylum. See 8 U.S.C. § 1252(a)(2)(B). That bar
on judicial review does not apply to “constitutional claims or
questions of law raised upon a petition for review filed with an
appropriate court of appeals[.]” Id. § 1252(a)(2)(D).
B
In August 2019, shortly after the Secretary issued the
Expansion Designation, several organizations filed suit on
behalf of their individual members against the Secretary, the
Attorney General, and three other federal officials within the
Department of Homeland Security. The Associations are Make
the Road New York, La Union Del Pueblo Entero, and
WeCount!. Each one is a membership organization that
advocates on behalf of its members in immigrant communities
11
and that includes among its members individuals directly
covered by the new expedited removal designation.
The Associations asserted multiple claims, including
statutory claims under the APA and the INA, along with two
constitutional claims. Specifically, the Associations contend
that the Secretary violated the APA by failing both (i) to
engage in reasoned decisionmaking, and (ii) to promulgate the
Expansion Designation through notice-and-comment
rulemaking. The Associations also alleged violations of (i) the
INA, 8 U.S.C. §§ 1225(a)–(b), 1362, contending that the
expansion impermissibly deprived individuals of a meaningful
pre-removal process and restricted the participation of counsel;
(ii) the Due Process Clause of the Fifth Amendment, U.S.
CONST. Amend. V, for failure to provide meaningful process
prior to removal; and (iii) the Suspension Clause, U.S. CONST.
Art. I, § 9, cl. 2, because the designation deprived individuals
of the right to seek judicial review of a removal order. The
Associations requested, among other things, a declaration that
the Expansion Designation was contrary to law, vacatur of the
Expansion Designation, and an injunction barring its
application to the expanded group of individuals. J.A. 38–39.
Because the Expansion Designation took effect
immediately, the Associations promptly moved for a
preliminary injunction. After conducting a hearing, the district
court granted a preliminary injunction, determining that the
Associations were likely to succeed in establishing jurisdiction
and on the merits of their APA claims, and that the balance of
interests favored the Associations. Given those rulings, the
court found it unnecessary at that time to address the
Associations’ INA and constitutional claims.2
2
Because the district court only addressed the APA notice-and-
comment rulemaking and reasoned decisionmaking claims, see
12
Regarding jurisdiction, the district court held that it had
jurisdiction to consider the claims under 28 U.S.C. § 1331, and
that the jurisdiction-stripping provisions of 8 U.S.C.
§ 1252(a)(2)(A) by their express terms do not apply to
constitutional and statutory challenges to regulations, written
policy directives, and written policy guidelines issued by the
Secretary to implement expedited removal. See Make the
Road, 405 F. Supp. 3d at 28 (“[T]his court has little doubt that
[the Associations’] APA claims assailing DHS’s July 23rd
Notice qualify as challenges to ‘a regulation, or a written policy
directive, written policy guideline, or written procedure issued
by or under the authority of the Attorney General to implement’
section 1225(b).”) (quoting 8 U.S.C. § 1252(e)(3)(A)(ii)).
The district court also determined that the Associations
had standing to litigate on behalf of their members who are
subject to the Expansion Designation, pointing to three
declarations from the Associations’ members stating that they
were subject to and adversely affected by the new designation.
The court further found that depriving those individuals of the
more robust procedural protections afforded in regular removal
proceedings was a “recognized harm[.]” Make the Road, 405
F. Supp. 3d at 33. Nor was there anything “speculative about
a threatened injury if the one who makes the threat
Make the Road New York v. McAleenan, 405 F. Supp. 3d 1, 25 n.12
(D.D.C. 2019), and the parties did not address any other claims in
their briefing to this court, we do not address the pending
constitutional and INA claims for the first time on appeal. See
Liberty Property Trust v. Republic Properties Corp., 577 F.3d 335,
341 (D.C. Cir. 2009) (“Although we * * * have the discretion to
consider questions of law that were not passed upon by the District
Court, this court’s normal rule is to avoid such consideration.”)
(formatting modified); see also Washington Alliance of Tech.
Workers v. United States Dep’t of Homeland Sec., 892 F.3d 332, 346
(D.C. Cir. 2018) (similar).
13
simultaneously and unequivocally states that he intends to
inflict the threatened harm as soon as possible and without
further warning” on such individuals. Id. at 34.
The court next found that the APA provided a cause of
action to challenge the Expansion Designation, even though the
decision was statutorily committed to the Secretary’s “sole and
unreviewable discretion[.]” See Make the Road, 405 F. Supp.
3d at 39–43. In the district court’s view, it was “more likely
that Congress intended to confer [on] the agency the ultimate
authority to make the decision of who will be subject to
expedited removal under the statute, which is not the same
thing as giving the agency sole discretion to determine the
manner in which that decision will be made.” Id. at 39. In the
district court’s estimation, the Associations’ APA claims were
related to the process and not to the substance of the Expansion
Designation itself.
Moving to the merits, the district court concluded that the
Associations were likely to succeed on their notice-and-
comment rulemaking and arbitrary and capricious claims. The
court determined that the Expansion Designation was a
substantive rule, not a general statement of policy, and no good
cause existed to justify the failure to proceed through notice-
and-comment rulemaking. The court also ruled that the
Expansion Designation was not a product of reasoned
decisionmaking because the Secretary failed to weigh “the
considerable downsides of adopting a policy that, in many
respects, could significantly impact people’s everyday lives in
many substantial, tangible, and foreseeable ways.” Make the
Road, 405 F. Supp. 3d at 55.
Finally, the district court ruled that the balance of interests
favored issuing a preliminary injunction. The Associations’
members would be subject to irreparable harm when the
14
Expansion Designation subjected them to expedited removal.
And while the public had an interest in the efficient
administration of immigration laws, the public also “ha[d] a
significant interest in avoiding the erroneous application of a
policy that can result in the swift and largely unreviewable
deportation * * * of members of the public that have
established strong ties to their communities.” Make the Road,
405 F. Supp. 3d at 65.
Based on those determinations, the district court
preliminarily enjoined the Secretary from enforcing the
Expansion Designation against all newly covered individuals.
The Secretary filed a timely notice of appeal. See 8 U.S.C.
§ 1252(e)(3)(C). Upon the joint request of the parties, the
district court stayed further proceedings pending the
disposition of this statutorily expedited appeal. Id.
§ 1252(e)(3)(D).
II
The district court exercised federal question jurisdiction
over the APA claims under 28 U.S.C. § 1331. This court has
appellate jurisdiction under 28 U.S.C. § 1292(a)(1).
We review the issuance of a preliminary injunction for an
abuse of discretion. See, e.g., Atlas Air, Inc. v. International
Bhd. of Teamsters, 928 F.3d 1102, 1112 (D.C. Cir. 2019). The
district court’s underlying legal conclusions are reviewed de
novo, while its factual findings are reviewed for clear error. Id.
III
To obtain a preliminary injunction, the Associations must
establish that (1) they are likely to succeed on the merits of
their APA claims, (2) their members are likely to suffer
15
irreparable harm in the absence of preliminary relief, (3) the
balance of equities tips in their favor, and (4) an injunction is
in the public interest. See Winter v. Natural Res. Def. Council,
Inc., 555 U.S. 7, 20 (2008). As part of establishing a likelihood
of success on the merits, the Associations must first
demonstrate a likelihood of success in establishing jurisdiction.
See, e.g., Food & Water Watch, Inc. v. Vilsack, 808 F.3d 905,
913 (D.C. Cir. 2015).
We hold that the Associations established jurisdiction for
their APA claims. But they do not have a likelihood of success
on their APA notice-and-comment and reasoned
decisionmaking claims because the Secretary’s decision to
expand the scope of expedited removal within statutory limits
is committed to agency discretion by law.
A
On the question of jurisdiction, we decide this case against
the backdrop of “a familiar principle of statutory construction:
the presumption favoring judicial review of administrative
action.” Guerrero-Lasprilla v. Barr, 140 S. Ct. 1062, 1069
(2020) (quoting Kucana v. Holder, 558 U.S. 233, 251 (2010));
see id. (“Consider first” the presumption in favor of judicial
review.); SAS Inst., Inc. v. Iancu, 138 S. Ct. 1348, 1359 (2018)
(“[W]e begin with ‘the strong presumption in favor of judicial
review.”) (quoting Cuozzo Speed Techs., LLC v. Lee, 136 S. Ct.
2131, 2140 (2016)).3
3
See also NetCoalition v. SEC, 715 F.3d 342, 348 (D.C. Cir.
2013) (beginning analysis by “bear[ing] in mind the presumption
favoring judicial review of agency action”); El Paso Natural Gas Co.
v. United States, 632 F.3d 1272, 1276 (D.C. Cir. 2011) (“When
considering whether a statute bars judicial review, ‘[w]e begin with
the strong presumption that Congress intends judicial review of
16
That presumption means that, “when a statutory provision
‘is reasonably susceptible to divergent interpretation, we adopt
the reading that accords with traditional understandings and
basic principles: that executive determinations generally are
subject to judicial review.’” Guerrero-Lasprilla, 140 S. Ct. at
1069 (quoting Kucana, 558 U.S. at 251); see also HON. HARRY
T. EDWARDS & LINDA A. ELLIOTT, FEDERAL STANDARDS OF
REVIEW: REVIEW OF DISTRICT COURT DECISIONS AND AGENCY
ACTIONS, Part 2, Chapter XII, Section A (database updated
Feb. 2018) (“And, ‘[b]ecause the presumption favoring
interpretations of statutes to allow judicial review of
administrative action is well-settled,’ Congress is assumed to
‘legislate[] with knowledge of [it].’”) (quoting Kucana, 558
U.S. at 251–252).
That “well-settled” and “strong presumption” in favor of
judicial review is so embedded in the law that it applies even
when determining the scope of statutory provisions specifically
designed to limit judicial review. See Guerrero-Lasprilla, 140
S. Ct. at 1068; see also Kucana, 558 U.S. at 251–252;
American Clinical Lab. Ass’n v. Azar, 931 F.3d 1195, 1204
(D.C. Cir. 2019); El Paso Natural Gas Co. v. United States,
632 F.3d 1272, 1276 (D.C. Cir. 2011) (“Th[e] presumption
applies even where, as here, the statute expressly prohibits
administrative action.’”) (quoting Bowen v. Michigan Academy of
Family Physicians, 476 U.S. 667, 670 (1986)); cf. Shalala v. Illinois
Council on Long Term Care, Inc., 529 U.S. 1, 45–46 (2000)
(Thomas, J., concurring) (It is a “longstanding canon that judicial
review of executive action will not be cut off unless there is
persuasive reason to believe that such was the purpose of Congress,”
and noting that the Court had applied the presumption in the
immigration context, “notwithstanding the statute’s express
prohibition of judicial review”) (formatting modified).
17
judicial review—in other words, the presumption dictates that
such provisions must be read narrowly.”).
The Supreme Court has “‘consistently applied’ the
presumption of reviewability to immigration statutes,”
including the very statute at issue here, 8 U.S.C. § 1252(a), and
the very subsection on which the dissenting opinion relies. See
Guerrero-Lasprilla, 140 S. Ct. at 1069–1070; see also Kucana,
558 U.S. at 251–252 (also applying the presumption to
Subsection 1252(a)(2)(B)); cf. McNary v. Haitian Refugee
Ctr., Inc., 498 U.S. 479, 496 (1991) (applying presumption to
a predecessor INA provision).
That “well-settled” presumption can be overcome only by
“clear and convincing evidence” of congressional intent to
preclude judicial review. See, e.g., Kucana, 558 U.S. at 252
(quoting Reno v. Catholic Social Servs., Inc., 509 U.S. 43, 64
(1993)).
Foundational tenets of statutory construction likewise
apply with equal force in the jurisdictional context. That means
that, when interpreting a jurisdiction-stripping provision, we
start with the text, and then read those words in light of the
statutory structure and context. See Guerrero-Lasprilla, 140 S.
Ct. at 1070–1071; see also Kucana, 558 U.S. at 245 (same);
Oral Arg. Tr. 74:15–17 (Secretary agreeing that the provisions
are “not divorced,” and that the court must “read the entire
context of the statute”).
Applying those principles of statutory construction, we
hold that IIRIRA’s text and statutory structure expressly
preserve the district court’s jurisdiction under 28 U.S.C. § 1331
over the Associations’ APA challenges.
18
1
While the statutory provisions at issue are complex,
straightforward rules of statutory construction knit them
together and, at every turn, expressly preserve jurisdiction over
challenges like the Associations’ claims of legal or
constitutional error in the Secretary’s rules implementing
expedited removal.
First, the statute’s plain language says that there is
jurisdiction. In the midst of a statutory section that largely
limits and channels judicial relief directly into the federal
appellate courts or habeas corpus proceedings, Congress
specifically provided in the expedited removal context for more
traditional judicial review of “[c]hallenges on validity of the
system[.]” 8 U.S.C. § 1252(e)(3) (formatting modified). For
those claims, Congress authorized “[j]udicial review” by
means of “an action instituted in the United States District
Court for the District of Columbia[.]” Id. § 1252(e)(3)(A).4
4
Subsection 1252(e)(3)(A) provides in full:
(3) Challenges On Validity Of The System
(A) In general
Judicial review of determinations under section
1225(b) of this title and its implementation is available in
an action instituted in the United States District Court for
the District of Columbia, but shall be limited to
determinations of—
(i) whether such section, or any regulation issued to
implement such section, is constitutional; or
(ii) whether such a regulation, or a written policy
directive, written policy guideline, or written
procedure issued by or under the authority of the
19
That review specifically includes “determinations under
section 1225(b) of this title and its implementation[.]” 8 U.S.C.
§ 1252(e)(3)(A) (emphasis added). The natural meaning of the
singular “its” points directly to litigation over
Section 1225(b)’s implementation. See United States v.
Barnes, 295 F.3d 1354, 1364 (D.C. Cir. 2002).
“[S]ection 1225(b) of this title” is also the last antecedent to
which the word “its” refers. See Barnhart v. Thomas, 540 U.S.
20, 26 (2003) (Under the “rule of the last antecedent,” a clause
or phrase “should ordinarily be read as modifying only the
noun or phrase that it immediately follows[.]”).5
Second, a basic rule of statutory construction is to “[r]ead
on.” Arkansas Game & Fish Comm’n v. United States, 568
U.S. 23, 36 (2012); see Local Union 1261, Dist. 22, United
Mine Workers v. Federal Mine Safety & Health Review
Comm’n, 917 F.2d 42, 45 (D.C. Cir. 1990) (“If the first rule of
statutory construction is ‘Read,’ the second rule is ‘Read
On!’”). The ensuing provisions of Subsection 1252(e)(3)(A)
confirm that the Subsection’s opening paragraph means what it
says. Congress enumerated the judicial challenges the
provision allows, which include whether “any regulation
issued to implement such section[] is constitutional,” and
whether “a regulation, or a written policy directive, written
policy guideline, or written procedure issued by or under the
authority of the [Secretary] to implement [expedited removal]
Attorney General to implement such section, is not
consistent with applicable provisions of this
subchapter or is otherwise in violation of law.
8 U.S.C. § 1252(e).
5
There is no dispute that jurisdiction under this provision
extends as well to this court’s appellate review of a district court
decision. See 8 U.S.C. § 1252(e)(3)(C)–(D).
20
is not consistent with applicable provisions of [the INA] or is
otherwise in violation of law.” 8 U.S.C. § 1252(e)(3)(A)(ii).
Third, earlier in Section 1252, Congress underscored its
preservation of judicial review over legal challenges to the
rules implementing the expedited removal system by thrice
qualifying its limitations on judicial review “relating to
section 1225(b)(1)” by emphasizing that review is barred
“except as provided in subsection (e)[.]” 8 U.S.C.
§ 1252(a)(2)(A) (formatting modified); see also id.
§ 1252(a)(2)(A)(i, ii, & iv).
2
Notwithstanding Subsection 1252(e)(3)’s plain textual
coverage of the types of legal and constitutional claims leveled
by the Associations, the Secretary points back to the general
limitations on judicial review catalogued in
Subsection 1252(a)(2). That argument does not work.
The Secretary is correct that Subsection 1252(a)(2)
identifies three categories of “[m]atters not subject to judicial
review.” See 8 U.S.C. § 1252(a)(2)(A)–(C). Those include
matters relating to (A) expedited removal, (B) denials of
discretionary relief, and (C) orders against criminals (which the
Secretary agrees is not relevant here). Id. Reading the statute
as a whole, the Secretary’s argument against judicial review
runs aground on the statutory text.
(i) Subsection A
Subsection A is entitled “[r]eview relating to
section 1225(b)(1),” and so speaks specifically to and directly
governs jurisdiction over challenges to the expedited removal
scheme. 8 U.S.C. § 1252(a)(2)(A) (formatting modified). The
Secretary notes that Subsection A generally bars judicial
21
review of (i) “any individual determination or to entertain any
other cause or claim arising from or relating to the
implementation or operation of an order of [expedited]
removal”; (ii) “a decision by the [Secretary] to invoke the
provisions of such section”; (iii) “the application of [the
expedited removal] section to individual aliens, including the
[credible-fear determination]”; and (iv) “procedures and
policies adopted by the [Secretary] to implement the provisions
of section 1225(b)(1)[.]” Id. § 1252(a)(2)(A).6
Those provisions hurt rather than help the Secretary’s
argument. That is because, as noted earlier, romanettes (i), (ii),
6
Subsection A provides in full:
Notwithstanding any other provision of law (statutory
or nonstatutory), including section 2241 of title 28, or any
other habeas corpus provision, and sections 1361 and 1651
of such title, no court shall have jurisdiction to review—
(i) except as provided in subsection (e), any
individual determination or to entertain any other
cause or claim arising from or relating to the
implementation or operation of an order of removal
pursuant to section 1225(b)(1) of this title,
(ii) except as provided in subsection (e), a decision by
the Attorney General to invoke the provisions of such
section,
(iii) the application of such section to individual
aliens, including the determination made under
section 1225(b)(1)(B) of this title, or
(iv) except as provided in subsection (e), procedures
and policies adopted by the Attorney General to
22
and (iv) each expressly reserve jurisdiction “as provided in
subsection (e)” for constitutional and legal challenges to the
Secretary’s rules and procedures implementing the expedited
removal system. Those provisions textually embrace the
Secretary’s decision in the Expansion Designation “to invoke”
and “to implement” both in “procedure[] and polic[y]” the full
reach of authority conferred by Congress in the expedited
removal provision, 8 U.S.C. § 1252(a)(2)(A)(ii & iv). So the
statute’s plain text steers us right back to the grant of
jurisdiction in Subsection 1252(e)(3) over precisely the type of
legal claims that the Associations press.7
The Secretary resists that straightforward reading in two
ways.
First, the Secretary argues that Section 1252(e) only
allows the initiation of a lawsuit in district court in Washington,
D.C. by an individual during those few short days that the
person is in expedited removal proceedings (which almost
invariably is conducted somewhere outside of Washington,
D.C.). The Secretary points out that Section 1252(e) is titled
“[j]udicial review of orders under section 1225(b)(1)[.]”
Secretary Br. 22–23. But read as a whole, the text says
implement the provisions of section 1225(b)(1) of
this title.
8 U.S.C. § 1252(a)(2)(A).
7
Romanette (iii) applies specifically to a challenge to the
“application” of the expedited removal process to an “individual[.]”
Those individuals must funnel their challenges to their final orders
of removal into habeas corpus review rather than through
Section 1252(e). See 8 U.S.C. § 1252(a)(2)(A)(iii), (e)(2).
23
otherwise.8 While romanettes (i) and (iii) refer to claims
pressed by individuals to whom the expedited removal scheme
is being “appli[ed]” or an order of removal is being
“implement[ed],” the other two romanettes for which review
under Subsection 1252(e)(3) is specifically authorized are not
textually confined to claims arising from individual removal
actions. Compare 8 U.S.C. § 1252(a)(2)(A)(i & iii), with id.
§ 1252(a)(2)(A)(ii) (covering challenges to “a decision by the
[Secretary] to invoke the [expedited removal] provisions”), and
id. 1252(a)(2)(A)(iv) (encompassing claims related to the
“procedures and policies adopted by the [Secretary] to
implement the [expedited removal] provisions”). So Congress
included within Subsection 1252(e)(3) two categories of
claims that, by their terms, are not confined to individual
expedited-removal proceedings, including specifically the type
of legal challenge to the Expansion Designation rule advanced
here. Id. § 1252(e)(3)(A)(i and ii).
The dissenting opinion echoes this argument, contending
that “Section 1252(e) simply does not address
designations * * * rather it explicitly preserves judicial review
of policies only in the context of ‘determinations[.]’” Dissent
Op. at 15. But that reading forsakes the text of the statute,
which expressly permits review of “determinations under
section 1225(b) * * * and its implementation,” 8 U.S.C.
§ 1252(e)(3)(A) (emphasis added). And again in
Subsection 1252(a)(2)(A)(iv), the statute expressly assigns to
Subsection 1252(e)(3)’s jurisdiction claims that exclusively
8
Section headings “are tools available for the resolution of a
doubt about the meaning of a statute.” Florida Dep’t of Revenue v.
Piccadilly Cafeterias, Inc., 554 U.S. 33, 47 (2008) (quoting Porter
v. Nussle, 534 U.S. 516, 528 (2002)). But they “cannot substitute for
the operative text of the statute.” Id.; see also Pennsylvania Dep’t of
Corrections v. Yeskey, 524 U.S. 206, 212 (1998) (“[T]he title of a
statute * * * cannot limit the plain meaning of the text.”).
24
involve challenges to “procedures and policies adopted by the
[Secretary] to implement [the statute]” divorced from any
individual determination. Id. § 1252(a)(2)(A)(iv).
Second, the Secretary points to this court’s rejection of a
challenge to an expedited-removal rule in American
Immigration Lawyers Association v. Reno, 199 F.3d 1352
(D.C. Cir. 2000). That mixes apples and oranges. American
Immigration rejected third-party organizational standing by the
American Immigration Lawyers Association itself as a basis to
sue under Subsection 1252(e)(3). See id. at 1354. The case did
not address associational standing to prosecute a case on behalf
of individuals directly regulated and affected by the challenged
rule. Id. at 1357 (explaining that the Association alleged that
the challenged rule violated “not their rights or the rights of
their members, but the constitutional and statutory rights of
unnamed aliens who were or might be subject to the statute and
regulations”).
In fact, American Immigration specifically contemplated
that litigation could be brought by affected individuals
themselves. See 199 F.3d at 1359 (“From all we can gather,
Congress must have contemplated that lawsuits challenging
[actions] would be brought, if at all, by individual aliens who—
during the sixty-day period—were aggrieved by the statute’s
implementation.”).
That makes sense. Whether aggrieved individuals sue on
their own or band together through a representative association
does not change the nature of the lawsuit as seeking to remedy
the individual members’ injuries arising from the Expansion
Designation. That is because associational (sometimes called
“representational”) standing is derivative and reflective of
individual standing. See Warth v. Seldin, 422 U.S. 490, 511
(1975) (“[A]n association may have standing solely as the
25
representative of its members.”); see also American Legal
Found. v. FCC, 808 F.2d 84, 90 (D.C. Cir. 1987) (Associations
can “be described as ‘but the medium through which
individuals * * * seek to make more effective the expression of
their own views[.]’”) (quoting Telecommunications Research
& Action Ctr. v. Allnet Commc’n Servs., Inc., 806 F.2d 1093,
1095–1096 (D.C. Cir. 1986)).9
To sum up, Subsection 1252(e)(3) expressly provides for
jurisdiction over the very type of claim that the Associations
are bringing on behalf of their individual members.10
9
Associational standing is particularly common in situations
like this where proceeding as individuals would identify the plaintiffs
to the government as targets of the very enforcement actions they
challenge as unlawful.
10
The dissenting opinion proffers a lengthy analysis of the
differences between designations, orders, and determinations,
Dissent Op. at 14–16, that not even the Secretary advanced. The
dissenting opinion contends that Subsection 1252(e)(3) permits
review only of orders of removal and determinations, both of which
“are directed to individual aliens[.]” Dissent Op. at 14–15. The plain
statutory text says otherwise, specifically providing for review of
Section 1225(b)’s “implementation,” “regulation[s],” “written
policy directive[s], written policy guideline[s], or written
procedure[s].” 8 U.S.C. § 1252(e)(3)(A)(i & ii); see also H.R. REP.
NO. 828, 104th Cong., 2d Sess. 219 (1996) (explaining that
“procedures and policies to implement [8 U.S.C. § 1225(b)(1)]” are
reviewable under Section 1252(e), while “[i]ndividual
determinations under [8 U.S.C. § 1225(b)(1)] may only be reviewed
under new [Subsections § 1252(e)(1)–(2)]”). That difference is
borne out in the statutory text. Subsection 1252(e)(2), which is titled
“[h]abeas corpus proceedings[,]” permits “[j]udicial review of any
determination under section 1225(b)(1) of this title[.]” 8 U.S.C.
§ 1252(e)(2) (formatting modified). By contrast,
Subsection 1252(e)(3) sweeps more broadly, permitting “[j]udicial
26
(ii) Subsection B
The Secretary next points to Subsection B of Section 1252
as foreclosing jurisdiction over the Associations’ legal
challenges. But that provision addresses what Congress
labeled “[d]enials of discretionary relief[.]” 8 U.S.C.
§ 1252(a)(2)(B) (formatting modified). The Secretary’s
decision to exercise his conferred statutory powers to expand
the scope of expedited removal, id. § 1225(b)(1)(A)(iii)(I), is a
general rulemaking governing the removal procedures to be
applied in a certain context, not a denial of discretionary relief.
The plain text of Subsection B bears its title out. That
provision is divided into Clause (i) and Clause (ii), which
specify the decisions not subject to judicial review. See 8
U.S.C. § 1252(a)(2)(B)(i & ii). Clause (i) provides an
enumerated list of discretionary forms of individual relief from
removal or exclusion that are generally immune from judicial
review. Id. § 1252(a)(2)(B)(i). Those include individual
waivers of inadmissibility that were based on certain criminal
offenses, id. § 1182(h), or based on fraud or misrepresentation,
id. § 1182(i); cancellation of removal, id. § 1229b; permission
for voluntary departure, id. § 1229c; and adjustment of status,
id. § 1255. See id. § 1252(a)(2)(B)(i); see also Kucana, 558
U.S. at 247–248. Clause (i) makes no mention of
administrative decisions generally implementing the
review of determinations under section 1225(b) of this title and its
implementation[.]” Id. § 1252(e)(3) (emphasis added) (formatting
modified). Congress knew how to limit judicial review to
“determinations” under the statute if it wished but chose not to do so
in Section 1252(e)(3). See Russello v. United States, 464 U.S. 16, 23
(1983) (“[W]here Congress includes particular language in one
section of a statute but omits it in another section of the same Act, it
is generally presumed that Congress acts intentionally and purposely
in the disparate inclusion or exclusion.”).
27
expedited-removal procedure or anything of that nature.
(Understandably, as that subject is already specifically and
exhaustively covered by Subsection A.)
The Secretary relies on Clause (ii), which removes
jurisdiction over “any other decision or action of the Attorney
General or the Secretary of Homeland Security the authority
for which is specified under this subchapter to be in the
discretion of the Attorney General or the Secretary of
Homeland Security[.]” 8 U.S.C. § 1252(a)(2)(B)(ii).
The problem for the Secretary is that the Supreme Court
has instructed that Clause (ii)’s reference to “any other decision
or action” is a “catchall provision,” the meaning of which is
“instruct[ed]” by “[t]he [C]lause (i) enumeration.” Kucana,
558 U.S. at 246–247. In Kucana, the government argued to the
Supreme Court that Clause (ii) pertains only to those
“substantive decisions * * * made by the Executive in the
immigration context as a matter of grace, things that involve
whether aliens can stay in the country or not.” Id.
Based on the statutory structure, the Supreme Court held
that those “[o]ther decisions specified by statute ‘to be in the
discretion of the Attorney General,’ and therefore shielded
from court oversight by § 1252(a)(2)(B)(ii), are of a like kind”
as those identified in Clause (i). Kucana, 558 U.S. at 248. The
Court’s recitation of the type of decisions covered by
Clause (ii) proves the point. The Court interpreted Clause (ii)’s
reach as capturing decisions under Ҥ 1157(c)(1) (discretion to
admit refugees ‘determined to be of special humanitarian
concern to the United States’); § 1181(b) (discretion to waive
requirement of documentation for readmission; [and]
§ 1182(a)(3)(D)(iii) (discretion to waive, in certain cases,
inadmissibility of aliens who have affiliated with a totalitarian
party).” Kucana, 558 U.S. at 248.
28
That reading is bolstered by the reference at the end of
Clause (ii). After specifying that those types of discretionary
decisions are nonreviewable, the provision explicitly carves out
from the jurisdictional bar another type of discretionary
substantive relief from removal for individuals—asylum
claims. See 8 U.S.C. § 1252(a)(2)(B)(ii) (excluding “the
granting of relief under section 1158(a) of this title” from the
prohibition on judicial review).
The Supreme Court repeated that understanding of
Subsection B’s scope recently in Nasrallah v. Barr,
No. 18-1432, 2020 WL 2814299, at *8 & n.5 (U.S. June 1,
2020). There, the Court again described Subsection B as
barring judicial review of “challenges to orders denying
discretionary relief, including cancellation of removal,
voluntary departure, adjustment of status, certain
inadmissibility waivers, and other determinations ‘made
discretionary by statute.’” Id. at *8 (emphasis added) (quoting
Kucana, 558 U.S. at 248). The Court then specifically
distinguished the procedures for “expedited removal
proceedings,” which the Court noted are governed by
Subsection A and Section 1252(e). Id. at *8 n.5; see also
Kucana, 558 U.S. at 248 (stating that Subsection B applies not
to discretionary judgments about removal procedures, but to
individualized discretionary judgments regarding relief from
removal that, if overturned on judicial review, would “direct
the Executive to afford the alien substantive relief” from
removal); Zhu v. Gonzales, 411 F.3d 292, 293–294 (D.C. Cir.
2005) (applying the ban on judicial review in Clause (ii) to the
Attorney General’s decision, in response to individual
applications, not to exercise his discretion to waive work
certification requirements).
In short, the statutory text, confirmed by the Supreme
Court’s holding in Kucana and reaffirmed in Nasrallah,
29
focuses Clause (ii)’s bar on individualized forms of
discretionary relief from removal or exclusion, which is not the
type of generally applicable rulemaking governing removal
procedures undertaken by the Secretary in this case.11
A wider view of Section 1252 affords still more relevant
perspective on the Secretary’s argument. Even where it
applies, Subsection B’s jurisdictional bar does not apply to
challenges based on “constitutional claims or questions of
law.” 8 U.S.C. § 1252(a)(2)(D). Instead, the statute allows
such claims to be “raised upon a petition for review filed with
an appropriate court of appeals[.]” Id.; see also Guerrero-
Lasprilla, 140 S. Ct. at 1068–1069.12 That tells us two things.
11
The dissenting opinion asserts that Kucana stands for the
proposition that all decisions statutorily committed to the Secretary’s
discretion fall within Subsection B’s ambit. See Dissent Op. at 10–
11. But Kucana teaches two things—not just one. First, decisions
made discretionary by regulation do not fall within Subsection B’s
jurisdictional bar. See Kucana, 558 U.S. at 237. Second, Clause (i)
“is instructive in determining the meaning of [Clause] (ii)[.]” Id. at
247. We draw on that second teaching in interpreting Clause (ii)’s
reach here. The dissenting opinion also points to the government’s
brief in Kucana, which identified the Designation Provision as
“explicitly grant[ing] the Attorney General * * * ‘discretion’ to
make a certain decision.” See 558 U.S. at 247 n.14 (referring
generally to Respondent’s Br. 19–20 n.11, Kucana v. Holder,
No. 08-911, 2009 WL 2028903 (July 13, 2009)). The Designation
Provision certainly does confer expansive discretion on the
Secretary. But that footnote served only to distinguish statutory from
regulatory conferrals of discretion, which is not an issue in this case.
Kucana, 558 U.S. at 247 & n.14.
12
The dissenting opinion claims that we “mistakenly rel[y]” on
Subsection D. Dissent Op. at 17. Not so. As directed by the
Supreme Court, we just look to Subsection D as part of the relevant
30
First, whatever Subsection B’s jurisdictional bar covers, it
is not the type of challenges to the Secretary’s regulations,
orders, policies, and directives specifically implementing the
expedited removal scheme for which Section 1252(e)
expressly grants jurisdiction—and that are brought by the
Associations here. What IIRIRA does in Section 1252 is route
those legal and constitutional challenges to two different fora.
Those involving orders denying discretionary relief in
individual cases are covered by Subsection B and are routed to
federal courts of appeals across the United States. See 8 U.S.C.
§ 1252(a)(2)(D); see also Nasrallah, 2020 WL 2814299, at *8
n.5 (treating separately Subsection B’s area of application and
the statutory provisions that govern in the expedited removal
context, including Section 1252(e)). And those challenges
pertaining to the expedited removal program must be filed in
the District of Columbia district court. See id. § 1252(e)(3).13
Second, what pervades Subsection 1252(a)(2) is
Congress’s commitment to preserving the jurisdiction of
federal courts to review constitutional and legal challenges to
the decisions otherwise covered by its general bars on judicial
review. See Guerrero-Lasprilla, 140 S. Ct. at 1072–1073
(discussing Congress’s calibration of the statute to allow for
legal and constitutional challenges in the wake of INS v. St.
Cyr, 533 U.S. 289 (2001)). The Secretary’s and dissenting
opinion’s proposed interpretation of the statute, by contrast,
statutory context. See Guerrero-Lasprilla, 140 S. Ct. at 1070–1071;
see also Kucana, 558 U.S. at 245 (same).
13
It is well established “that the specific governs the general.”
RadLAX Gateway Hotel, LLC v. Amalgamated Bank, 566 U.S. 639,
645 (2012) (quoting Morales v. Trans World Airlines, Inc., 504 U.S.
374, 384 (1992)).
31
would broadly preclude such review in the expedited removal
context.
B
While establishing jurisdiction gets the Associations
through the courthouse door, it does not keep them there. They
also need a cause of action to prosecute. That is where the
Associations’ APA notice-and-comment and reasoned
decisionmaking claims founder.
1
The APA’s judicial review provisions, 5 U.S.C. §§ 701–
706, “provide ‘a limited cause of action for parties adversely
affected by agency action.’” Oryszak v. Sullivan, 576 F.3d 522,
525 (D.C. Cir. 2009) (quoting Trudeau v. FTC, 456 F.3d 178,
185 (D.C. Cir. 2006)); see also Chrysler Corp. v. Brown, 441
U.S. 281, 317 n.47 (1979) (“Jurisdiction to review agency
action under the APA is found in 28 U.S.C. § 1331.”).
But that cause of action is not available where, among
other things, “agency action is committed to agency discretion
by law.” 5 U.S.C. § 701(a)(2); see Department of Commerce
v. New York, 139 S. Ct. 2551, 2567 (2019); Oryszak, 576 F.3d
at 525 (“Because the APA does not apply to agency action
committed to agency discretion by law, a plaintiff who
challenges such an action cannot state a claim under the
APA.”).
The APA exception for actions committed to agency
discretion by law is read “quite narrowly, restricting it to those
rare circumstances where the relevant statute is drawn so that a
court would have no meaningful standard against which to
judge the agency’s exercise of discretion.” Department of
Commerce, 139 S. Ct. at 2568 (quoting Weyerhaeuser Co. v.
32
United States Fish & Wildlife Serv., 139 S. Ct. 361, 370
(2018)).
But rare does not mean never. The Designation Provision,
which empowers the Secretary to decide the extent to which
expedited removal will operate within statutory bounds, 8
U.S.C. § 1225(b)(1)(A)(iii)(I), falls squarely within
Section 701(a)(2)’s restrictive mold.
The Designation Provision allows the extension of
expedited removal procedures “as designated by” the
Secretary” “to any or all” individuals who have not been
admitted or paroled into the United States and who cannot
demonstrate that they have been continuously present in the
United States for two years. 8 U.S.C. § 1225(b)(1)(A)(iii)(I);
see id. § 1225(b)(1)(A)(iii)(II). Critically, “[s]uch designation
shall be in the sole and unreviewable discretion of the
[Secretary] and may be modified at any time.” Id.
§ 1225(b)(1)(A)(iii)(I).
There could hardly be a more definitive expression of
congressional intent to leave the decision about the scope of
expedited removal, within statutory bounds, to the Secretary’s
independent judgment. The “forceful phrase ‘sole and
unreviewable discretion,’” by its exceptional terms, heralds
Congress’s judgment to commit the decision exclusively to
agency discretion. See Bourdon v. United States Dep’t of
Homeland Sec., 940 F.3d 537, 542 (11th Cir. 2019). For
example, in Webster v. Doe, 486 U.S. 592 (1988), the Supreme
Court stressed that an agency’s power to terminate an
employee whenever the official “shall deem such termination
necessary or advisable” “fairly exudes deference[.]” Id. at 600;
see also Drake v. Federal Aviation Admin., 291 F.3d 59, 72
(D.C. Cir. 2002) (statute that permits an official to act
33
whenever she “is of the opinion” affords “virtually unbridled
discretion”).
Congress’s addition of the phrase “and unreviewable
discretion” to “sole” doubles down on the confinement of the
judgment to one decisionmaker, and one decisionmaker alone.
The natural meaning of the statutory text is that, unless the
Secretary crosses the statute’s bounds (which is not argued in
this appeal), no second opinions are allowed.
Tripling down, Congress teamed “sole and unreviewable
discretion” with the additional authority to modify that
unreviewable decision “at any time.” 8 U.S.C.
§ 1225(b)(1)(A)(iii)(I). That statutory language confines the
judgment to the Secretary’s hands and, in so doing, inescapably
seeks to withdraw the decision from APA review.
Of course, a statute’s grant of “broad discretion to an
agency does not render the agency’s decisions completely
nonreviewable under the ‘committed to agency discretion by
law’ exception” unless the court also determines that the
“statutory scheme[,] taken together with other relevant
materials, provides absolutely no guidance as to how that
discretion is to be exercised.” Robbins v. Reagan, 780 F.2d 37,
45 (D.C. Cir. 1985) (per curiam). If no standards for judging
the agency action “are discernable, meaningful judicial review
is impossible, and agency action is shielded from the scrutiny
of the courts,” Drake, 291 F.3d at 70, “at least [as] long as the
agency’s action does not otherwise infringe some
constitutional right or protection,” id. at 72.
The Designation Provision checks that box as well. It
provides no discernible standards by which a court could
evaluate the Secretary’s judgment. In the hunt for applicable
guidance, we consider “both the nature of the administrative
action at issue and the language and structure of the statute that
34
supplies the applicable legal standards for reviewing that
action.” Secretary of Labor v. Twentymile Coal Co., 456 F.3d
151, 156 (D.C. Cir. 2006) (quoting Drake, 291 F.3d at 70).
With respect to the nature of the agency action, the
Associations are correct that the designation is not the type of
judgment that, as a matter of tradition, is presumptively
committed to agency discretion. Certain actions, like refusals
to initiate enforcement proceedings, criminal charging
decisions, and the allocation of funds from a lump-sum
appropriation, have long been regarded as committed to agency
discretion. See Twentymile, 456 F.3d at 156 & n.6. The
designation decision does not fall within one of those almost-
automatically-unreviewable categories.
But that does not move the ball far in the Associations’
favor. It means only that a “presumption of [APA]
reviewability” attaches. Sierra Club v. Jackson, 648 F.3d 848,
856 (D.C. Cir. 2011).
So the question becomes whether the language or structure
of the statute provides substantive legal standards for a court to
apply. The Designation Provision does not. The Provision
states only that the Secretary “may” apply expedited removal
“to any or all [eligible] aliens” under the statute. See 8 U.S.C.
§ 1225(b)(1)(A)(iii)(I). The individuals statutorily subject to
expedited removal are those “who ha[ve] not been admitted or
paroled into the United States, and who ha[ve] not
affirmatively shown, to the satisfaction of an immigration
officer, that the[y] ha[ve] been physically present in the United
States continuously for the 2-year period immediately prior to
the date of the determination of inadmissibility[.]” Id.
§ 1225(b)(1)(A)(iii)(II). The Associations do not allege that
the Secretary’s expansion of the designation exceeded those
statutory bounds.
35
That is it. Neither the statutory text nor structure provides
any other legal standards constraining the Secretary’s
discretionary judgment. The statute says only that the
Secretary is authorized to designate the groups that fall within
statutory bounds in his “sole and unreviewable discretion” and
may modify such designation “at any time.” See 8 U.S.C.
§ 1225(b)(1)(A)(iii)(I). In looking for judicially administrable
standards by which to judge the Secretary’s decision, that
language is an empty vessel.
The Associations insist that “[t]he INA is not ‘drawn so
that it furnishes no meaningful standard.’” See Associations’
Response Br. 36 (quoting Department of Commerce, 139 S. Ct.
at 2568). But they do not back that up by identifying any such
meaningful standard. Instead, they reason that “[t]he expedited
removal statute delineates a process by which officers decide
whether expedited removal applies and whether noncitizens
should receive further proceedings on their claims for
protection or regarding lawful status.” Id. As a result, the
Associations claim the Secretary was “required to consider the
ability to administer these standards accurately and fairly when
applying expedited removal to the new class of noncitizens.”
Id.
That argument misses the mark. The standards identified
by the Associations apply to the screening process laid out in a
different part of Section 1225(b). See 8 U.S.C.
§ 1225(b)(1)(A)(i)–(ii). The Secretary’s designation authority,
however, derives from a separate statutory provision. See id.
§ 1225(b)(1)(A)(iii). And Congress deliberately chose in the
Designation Provision to commit such enforcement and
resource judgments to the Secretary’s “sole and unreviewable
discretion[.]” Id. § 1225(b)(1)(A)(iii)(I).
 36
At bottom, while the Associations want the court to
substantively superintend the Secretary’s designation judgment
even when the Secretary stays within statutory bounds, the
search for governing standards comes up empty. That
judgment is committed to agency discretion by law and, under
Section 701 of the APA, there is no cause of action to evaluate
the merits of the Secretary’s judgment under APA standards.14
2
While there is no APA cause of action for substantive
review of the Secretary’s designation, the Associations
separately argue that the Secretary was obligated to make the
designation through the formal APA notice-and-comment
rulemaking process. The Associations are correct in one
respect: Even when a decision is committed to agency
discretion by law, and so is immune from substantive review,
the agency’s decision may still be subject to notice-and-
comment rulemaking. See Lincoln v. Vigil, 508 U.S. 182, 195
(1993); see also American Med. Ass’n v. Reno, 57 F.3d 1129,
1134 (D.C. Cir. 1995) (“[W]e note that under the APA the
ultimate availability of substantive judicial review is distinct
from the question of whether the basic rulemaking strictures of
notice and comment and reasoned explanation apply.”). But
14
Because there is no argument before us that the Secretary’s
designation decision exceeded the bounds of statutory authority
granted by the INA and because the district court did not address the
Associations’ statutory claims under the INA and constitutional
claims in granting a preliminary injunction, see Make the Road, 405
F. Supp. 3d at 25 n.12, we do not address whether there would be a
cause of action under the APA or otherwise if the Secretary expanded
expedited removal beyond the statute’s bounds or otherwise violated
the INA, or if the Secretary’s actions were unconstitutional.
37
here, the statute renders the formal notice-and-comment
rulemaking regime inapplicable.
For starters, a central purpose of notice-and-comment
rulemaking is to subject agency decisionmaking to public input
and to obligate the agency to consider and respond to the
material comments and concerns that are voiced. See Perez v.
Mortgage Bankers Ass’n, 575 U.S. 92, 96 (2015) (“An agency
must consider and respond to significant comments received
during the period for public comment.”); see also Lilliputian
Sys., Inc. v. Pipeline & Hazardous Materials Safety Admin.,
741 F.3d 1309, 1312 (D.C. Cir. 2014) (“An agency’s failure to
respond to relevant and significant public comments generally
‘demonstrates that the agency’s decision was not based on a
consideration of the relevant factors.’”) (quoting Thompson v.
Clark, 741 F.2d 401, 409 (D.C. Cir. 1984)).
But the Designation Provision is explicit that the Secretary
is under no duty to consider the views of others in expanding
or contracting the scope of the designation. That decision is in
the Secretary’s “sole” discretion. 8 U.S.C.
§ 1225(b)(1)(A)(iii)(I). That means that the Secretary alone
has the power to make the designation entirely independent of
the views of others.
On top of that, “part of the purpose of notice and comment
rulemaking is to ensure the parties develop a record for judicial
review.” American Clinical Lab., 931 F.3d at 1206; see also
International Union, United Mine Workers v. Mine Safety &
Health Admin., 407 F.3d 1250, 1259 (D.C. Cir. 2005)
(“[Rulemaking n]otice requirements are designed * * * to give
affected parties an opportunity to develop evidence in the
record to support their objections to the rule and thereby
enhance the quality of judicial review.”).
38
Yet there is no need to create a record for judicial review
where there is no cause of action for substantive judicial review
of the designation decision. The decision is in the Secretary’s
“unreviewable discretion.” 8 U.S.C. § 1225(b)(1)(A)(iii)(I).
Finally, the Secretary is permitted to modify the
designation “at any time,” 8 U.S.C. § 1225(b)(1)(A)(iii)(I),
which in this context necessarily means without taking the time
to first go through the usually lengthy notice-and-comment
rulemaking process. The power to modify “at any time” and in
his “sole discretion” also means that the Secretary would be
free to ignore the comments that the notice-and-comment
process produces. Under those circumstances, the notice-and-
comment procedure would be an empty, yet time-consuming,
exercise—all form and no substance. Where Congress leaves
the notice-and-comment process no work to do and expressly
authorizes the Executive Branch to exercise its unreviewable
discretion “at any time,” the APA does not require an agency
to undertake the process for its own sake.
One last point. The dissenting opinion discusses, at length,
whether the district court possessed authority to issue an
injunction and whether nationwide injunctions are appropriate.
It seems rather obvious that, having held that there is no APA
cause of action for the Associations to pursue in this appeal, we
need not address whether an injunctive remedy would be
available if there were a cause of action.
Of course, to the extent the dissenting opinion implies
some jurisdictionally troublesome lack of redressability,
Dissent Op. at 18, then we must dispel that concern. Which is
easily done.
Section 1252(f) prohibits only injunctions against “the
operation of the provisions of part IV of this subchapter” as
amended by IIRIRA. 8 U.S.C. § 1252(f). It does not proscribe
39
issuance of a declaratory judgment, which the Associations
sought here, see J.A. 38–39. The Supreme Court has
specifically held that Section 1252(f) does not bar declaratory
relief. Nielsen v. Preap, 139 S. Ct. 954, 962 (2019). So, like
the Supreme Court, we “need not resolve whether we would
have jurisdiction” to enter an injunction to establish Article III
redressability because the district court “had jurisdiction to
entertain the plaintiffs’ request for declaratory relief[.]” Id.;
see also Alli v. Decker, 650 F.3d 1007, 1013 (3d Cir. 2011)
(“[I]t is apparent that the jurisdictional limitations in
[Section 1252(f)] do not encompass declaratory relief.”);
Rodriguez v. Hayes, 591 F.3d 1105, 1119 (9th Cir. 2010)
(holding that Section 1252(f) covers only injunctive relief);
Arevalo v. Aschroft, 344 F.3d 1, 7 (1st Cir. 2003) (same).
IV
We hold that the district court properly exercised
jurisdiction under 8 U.S.C. § 1252(e) over the Associations’
claims, but that there is no cause of action under the APA to
scrutinize the Secretary’s designation decision so long as it
falls within statutory and constitutional bounds. We therefore
reverse the district court’s grant of a preliminary injunction and
remand for further proceedings consistent with this opinion.
So ordered.
RAO, Circuit Judge, dissenting: Citing national security
and resource allocation concerns, the Secretary of Homeland
Security designated additional aliens for expedited removal
from our borders. See 84 Fed. Reg. 35,409 (July 23, 2019)
(“Expansion Designation”). Although no alien has been
removed under the new designation, several immigrant rights
organizations (“plaintiffs”) brought a preenforcement
challenge to the Secretary’s policy. The district court granted a
nationwide preliminary injunction halting enforcement of the
Expansion Designation. While the majority reverses the district
court’s preliminary injunction on the merits, I would dismiss
plaintiffs’ claims at the threshold. The Immigration and
Nationality Act (“INA”) expressly bars the courts from
reviewing the Secretary’s discretionary decisions regarding
expedited removal. One of the few checks on the independent
judiciary comes from Congress’s ability to set the jurisdiction
of the inferior federal courts. Because the majority exercises
jurisdiction over a claim that Congress explicitly withholds
from our review, I respectfully dissent.
I.
Although the majority begins with the statutory
presumption of reviewability, I begin from a different starting
point, the constitutional power of Congress to strip lower
federal courts of jurisdiction over a class of cases. The
Constitution vests Congress with the power “[t]o constitute
Tribunals inferior to the supreme Court,” U.S. CONST. art. I,
§ 8, cl. 9, a power that naturally “includes [the] lesser power to
‘limit the jurisdiction of those Courts,’” Patchak v. Zinke, 138
S. Ct. 897, 906 (2018) (quoting United States v. Hudson, 11
U.S. (7 Cranch) 32, 33 (1812)). See also Sheldon v. Sill, 49 U.S.
441, 449 (1850); John Harrison, The Power of Congress to
Limit the Jurisdiction of Federal Courts and the Text of Article
III, 64 U. Chi. L. Rev. 203, 209 (1997) (“Congress may give
[inferior federal courts] all the jurisdiction the Constitution
2
permits, or none at all, or anything in between, as far as Article
III is concerned.”).
Under our Constitution, inferior federal courts have no
power except that which is specifically granted by Congress.
“[O]nly Congress may determine a lower federal court’s
subject-matter jurisdiction.” Bowles v. Russell, 551 U.S. 205,
211 (2007) (quotation omitted); Hudson, 11 U.S. (7 Cranch) at
33 (“All … Courts created by the general Government possess
no jurisdiction but what is given them by the power that creates
them.”). In consequence, Congress may withhold inferior
federal court jurisdiction “in the exact degrees and character
which to Congress may seem proper for the public good.” Cary
v. Curtis, 44 U.S. 236, 245 (1845). Indeed, “[t]o deny this
position would be to elevate the judicial over the legislative
branch of the government, and to give to the former powers
limited by its own discretion merely.” Id. Congress’s power to
confer or to withhold inferior federal court jurisdiction is a vital
element of the Constitution’s structure of separated and limited
powers. See Patchak, 138 S. Ct. at 907 (citing Steel Co. v.
Citizens for a Better Env’t, 523 U.S. 83, 101 (1998)).1
1
Congress, of course, cannot “violate other constitutional
provisions” in the exercise of its control over jurisdiction. Patchak,
138 S. Ct. at 906. Neither plaintiffs nor the majority suggest that the
INA’s denial of jurisdiction over this non-habeas preenforcement
challenge would transgress a constitutional boundary. Nor could
they, given Congress’s broad power over immigration and
longstanding limits on judicial review. See Jennings v. Rodriguez,
138 S. Ct. 830, 856 (2018) (Thomas, J., concurring in part and
concurring in the judgment) (“[I]n the context of deportation …
limits on the courts’ jurisdiction have existed for almost as long as
federal immigration laws, and … this Court has repeatedly affirmed
the constitutionality of those limits.”); see also Zadvydas v. Davis,
3
Congress’s constitutional power over inferior federal
jurisdiction means any presumption of reviewability must give
way to “clear and convincing evidence of congressional intent
to preclude judicial review.” Guerrero-Lasprilla v. Barr, 140
S. Ct. 1062, 1069 (2020) (quotation marks omitted); Kucana v.
Holder, 558 U.S. 233, 252 (2010). Despite this fundamental
precept, the majority begins its analysis with the presumption
of reviewability and then interprets each separate jurisdiction
stripping provision in light of that presumption. Maj. Op. 15–
17. Yet the presumption, originally a creature of the
Administrative Procedure Act, does not operate to place a
thumb on the scale when interpreting jurisdiction stripping
provisions. For example, in Kucana v. Holder, the Supreme
Court looked to the presumption only after an extensive
discussion of the text and structure of the INA, and to dispel
“[a]ny lingering doubt about the proper interpretation.” 558
U.S. at 251. And as the majority notes, the presumption applies
only when a statute is “reasonably susceptible to divergent
interpretation.” Maj. Op. 16 (quoting Guerrero-Lasprilla, 140
S. Ct. at 1069). The majority does not cite a single case in
which a court employs the presumption at the outset to evade a
clear jurisdiction stripping provision. Maj. Op. 15–17.2 The
533 U.S. 678, 687 (2001) (noting these longstanding limits on
review).
2
The cases cited by the majority provide no support for applying the
presumption to statutory text that explicitly strips jurisdiction. The
majority’s reliance upon Guerrero-Lasprilla is particularly
misleading. Maj. Op. 15. Interpreting the INA’s jurisdictional
provisions, the Court first “consider[ed] the statute’s language.”
Guerrero-Lasprilla, 140 S. Ct. at 1068. Only after concluding that
nothing in the “language of the statute” stripped jurisdiction, did the
Court refer to the presumption. Far from considering the presumption
at the outset or as part of its textual analysis, the Court used it “first”
only in a series of rebuttals against the government’s
counterarguments. Id. at 1069–70. See also SAS Inst., Inc. v. Iancu,
4
Supreme Court employs the presumption in the immigration
context only after examining the text and structure of a
jurisdiction stripping statute and finding an ambiguity, or
sometimes in response to litigants’ counterarguments. See, e.g.,
McNary v. Haitian Refugee Ctr., Inc., 498 U.S. 479, 494–96
(1991) (analyzing first the text of the INA and only employing
the presumption to rebut the petitioner’s argument); see also
Guerrero-Lasprilla, 140 S. Ct. at 1069 (same).
In the non-habeas INA context, this court, like the
Supreme Court, either leaves the presumption of reviewability
as a final consideration or declines to apply it at all. See, e.g.,
Nasrallah v. Barr, No. 18-1432, 2020 WL 2814299, at *8 &
n.5 (U.S. June 1, 2020) (interpreting INA jurisdiction stripping
provision with no mention of the presumption); Kucana, 558
U.S. at 251–52 (looking to the presumption only to resolve
“lingering doubt”); Zhu v. Gonzales, 411 F.3d 292, 294 (D.C.
Cir. 2005) (holding that section 1252(a)(2)(B) stripped
jurisdiction without mentioning the presumption). Whatever
the merits of applying the APA’s presumption of reviewability
to a discretionary immigration policy determination, it can be
employed only as a tiebreaker, a last resort in the face of
ambiguous text. Although the majority places great weight
upon the presumption of reviewability, it has no application
138 S. Ct. 1348, 1359 (2018) (applying a precedent holding that an
administrative no-appeal provision in the America Invents Act does
not preclude judicial review); NetCoalition v. SEC, 715 F.3d 342,
348 (D.C. Cir. 2013) (noting in review of a jurisdiction stripping
provision, “[w]e begin, as we must, with the text of the statute” and
when “[t]he language is not ambiguous … this court simply is not at
liberty to displace, or to improve upon, the jurisdictional choices of
Congress”) (quotation marks omitted); El Paso Natural Gas Co. v.
United States, 632 F.3d 1272, 1276 (D.C. Cir. 2011) (holding that a
statute stripped jurisdiction because it is “not ‘reasonably susceptible
to divergent interpretation’”) (quoting Kucana, 558 U.S. at 251).
5
here, where the statute’s plain meaning is not ambiguous and
not susceptible to divergent interpretations. As discussed
below, Congress could hardly have been clearer in
systematically leaving expedited removal designations to the
Secretary’s discretion and then removing discretionary
decisions from judicial review. The majority ignores a
fundamental constitutional limit on the courts in favor of a
presumption of recent mint and uncertain grounding.3
While courts should not shy from exercising jurisdiction
properly conferred, we cannot decide cases explicitly withheld
from our decision. The Supreme Court has explained that we
must interpret jurisdiction stripping statutes to mean what they
say. Cheng Fan Kwok v. INS, 392 U.S. 206, 212 (1968) (“[A]
jurisdictional statute … must be construed both with precision
and with fidelity to the terms by which Congress has expressed
its wishes.”); Bruner v. United States, 343 U.S. 112, 116 (1952)
(“[W]hen [the] terms [of a jurisdiction stripping statute] are
unambiguous we may not speculate on probabilities of
intention.”) (quoting Merchants’ Ins. Co. v. Ritchie, 72 U.S.
541, 545 (1866)). In the immigration context no less than other
areas, “[j]udicial review provisions … are jurisdictional in
nature and must be construed with strict fidelity to their terms.”
Stone v. INS, 514 U.S. 386, 405 (1995); see also Kokkonen v.
3
The presumption of reviewability is rooted in the Administrative
Procedure Act rather than the Constitution. See Abbott Labs. v.
Gardner, 387 U.S. 136, 140 (1967). It has since drifted into the
jurisdictional setting. See, e.g., Guerrero-Lasprilla, 140 S. Ct. at
1077–78 (Thomas, J., dissenting). The Supreme Court, however, has
long held the presumption in favor of review must yield when it
conflicts with Congress’s plenary power over jurisdiction and the
political branches’ power over immigration. See Heikkila v. Barber,
345 U.S. 229, 234 (1953) (noting that the APA presumption of
reviewability does not displace Congress’s plenary power over
jurisdiction and the political branches’ control over aliens).
6
Guardian Life Ins. Co. of Am., 511 U.S. 375, 377 (1994)
(federal jurisdiction “is not to be expanded by judicial decree”).
A narrow reading of jurisdiction stripping provisions runs the
danger that inferior federal courts will arrogate to themselves a
power withheld by Congress.4 With these principles in mind, I
evaluate whether this court has jurisdiction over plaintiffs’
challenge to the Expansion Designation.
II.
In 1996, “Congress amended the INA aggressively to
expedite removal of aliens lacking a legal basis to remain in the
United States.” Kucana, 558 U.S. at 249. These amendments
to the INA established a category of aliens eligible for an
expedited removal process that substantially shortens the time
between the apprehension and deportation of an illegally
present alien. See Illegal Immigration Reform and Immigrant
Responsibility Act of 1996 (“IIRIRA”), Pub. L. No. 104-208,
§ 302, 110 Stat. 3009-546, 3009-579 (1996) (codified at 8
U.S.C. § 1225). The statutory class includes aliens who entered
the United States unlawfully and have been physically present
in the country for less than a continuous two-year period. 8
U.S.C. § 1225(b)(1)(A)(iii)(II). Section 1225(b) entrusts the
Secretary of Homeland Security with the “sole and
unreviewable” discretion to designate which aliens within the
4
The Supreme Court has long admonished that lower courts should
exercise only the jurisdiction conferred by Congress. Kline v. Burke
Const. Co., 260 U.S. 226, 234 (1922) (“The Constitution simply
gives to the inferior courts the capacity to take jurisdiction in the
enumerated cases, but it requires an act of Congress to confer it. And
the jurisdiction having been conferred may, at the will of Congress,
be taken away in whole or in part.”) (citations omitted); cf. Turner v.
Bank of N. Am., 4 U.S. (4 Dall.) 8, 10 (1799) (“[T]he fair presumption
is … that a cause is without [an inferior federal court’s] jurisdiction,
until the contrary appears.”).
7
statutory class will be subject to expedited removal
proceedings. Id. § 1225(b)(1)(A)(iii)(I). In section 1252, also
added by IIRIRA, Congress reinforced the Secretary’s
authority by stripping the courts of jurisdiction to review
discretionary policies and various other decisions relating to
the expedited removal provisions, subject only to limited
exceptions. See id. §§ 1252(a)(2)(A), (B).
Following the Supreme Court’s approach in Kucana, 558
U.S. 233, which also interpreted section 1252’s jurisdiction
stripping provisions, I look to the text and structure of the INA
and conclude that Congress withdrew judicial review over
plaintiffs’ challenge to the Expansion Designation. First,
section 1252(a)(2)(B) withdraws jurisdiction to review any
decision committed to the Secretary’s discretion by the INA.
See 8 U.S.C. § 1252(a)(2)(B)(ii). Because the Expansion
Designation was committed to the Secretary’s “sole and
unreviewable discretion,” we have no jurisdiction to review it.
See id. § 1225(b)(1)(A)(iii)(I). Second, section 1252(a)(2)(A)
precludes challenges to the Secretary’s policies implementing
expedited removal, unless the challenge is brought in the
context of an individual determination. See id.
§§ 1252(a)(2)(A), 1252(e)(3)(A). Because the Expansion
Designation is a policy implementing expedited removal and
no individual determination has been made here, we have no
jurisdiction under section 1252(a)(2)(A). Finally, there is no
longstanding tradition of judicial review of expedited removal
designations. Contrary to the majority’s strained reading,
Congress stripped jurisdiction from the federal courts to
consider this preenforcement challenge to the Expansion
Designation.
8
A.
While the INA is complex, it unambiguously strips the
federal courts of jurisdiction to review the Secretary’s
Expansion Designation. See Kucana, 558 U.S. at 243–45
(looking first to the INA’s text). Quite simply, Congress left
expedited removal to the Secretary’s discretion and then barred
discretionary decisions from judicial review.
Under the INA, expedited removal designations are
committed to the Secretary’s “sole and unreviewable
discretion.” 8 U.S.C. § 1225(b)(1)(A)(iii)(I). Since the
inclusion of the expedited removal provision, the Secretary has
designated various subgroups of aliens for expedited removal.
See Maj. Op. 7–9. The Expansion Designation under review is
a further exercise of this discretionary authority to extend
expedited removal to inadmissible aliens within “the full
remaining scope of [the Department’s] statutory authority”
subject to “limited exceptions.” 84 Fed. Reg. at 35,409.
Section 1252(a)(2)(B) explicitly shields a wide range of
discretionary decisions from judicial review, namely “any
other decision or action of … the Secretary of Homeland
Security the authority for which is specified under this
subchapter[5] to be in the discretion of … the Secretary.” 8
U.S.C. § 1252(a)(2)(B)(ii). The phrase “any other” “suggests a
broad meaning.” Ali v. Fed. Bureau of Prisons, 552 U.S. 214,
218–19 (2008) (quotation marks omitted). The term “any
other” is so broad the Court has found it displaces “the rule of
ejusdem generis” because such “expansive language offers no
indication whatever that Congress intended [a] limiting
construction” of the class of covered subjects. Harrison v. PPG
5
“[T]his subchapter” refers to 8 U.S.C. §§ 1151–1381. The
expedited removal provision is codified at 8 U.S.C. § 1225.
9
Indus., Inc., 446 U.S. 578, 588–89 (1980). By including the
sweeping phrase “any other,” the statute removes power to
review any discretionary decision assigned to the Secretary by
the INA. See 8 U.S.C. § 1252(a)(2)(B)(ii). As the majority
recognizes, Maj. Op. 32–33, expedited removal designations
are explicitly assigned to the Secretary’s “sole and
unreviewable discretion.” 8 U.S.C. § 1225(b)(1)(A)(iii)(I).
Reading section 1252(a)(2)(B) and the expedited removal
provision together provides a clear statutory directive
withdrawing judicial review over the Secretary’s Expansion
Designation.
Moreover, this interpretation is consistent with the
Supreme Court’s analysis of section 1252(a)(2)(B). In Kucana,
the Court held that the term “any other decision” “barred court
review of discretionary decisions only when Congress itself set
out the [Secretary’s] discretionary authority in the statute.” 558
U.S. at 247 (interpreting 8 U.S.C. § 1252(a)(2)(B)). The Court
defined the type of decisions protected by this “catchall
provision” to broadly include “those made discretionary by
statute” rather than those made discretionary by regulation. Id.
at 246–48. The Expansion Designation unmistakeably fits
within this class because the INA, rather than a regulation,
confers upon the Secretary the “sole and unreviewable
discretion” to designate aliens for expedited removal.
Similarly, in Zhu v. Gonzales, this court enforced section
1252(a)(2)(B)’s jurisdiction stripping provision according to
its terms. 411 F.3d at 294–95. We held it was a discretionary
decision for purposes of section 1252(a)(2)(B) when the
Attorney General6 used his authority to waive certain
6
The Attorney General’s INA authority over the “detention and
removal program” was transferred to the Secretary of Homeland
10
requirements he “deems … to be in the national interest.” Id. at
293 (quoting 8 U.S.C. § 1153(b)(2)(B)(i)). We first noted that
a provision need not specifically use the term “discretion” to
bring a decision within the jurisdictional bar of section
1252(a)(2)(B). Id. at 294–95. It was enough that the statute
entrusted the decision to the Attorney General’s “expertise and
judgment unfettered by any statutory standard whatsoever.” Id.
at 295.7 Here the INA is even more explicit and places the
designation of expedited removal in the “sole and unreviewable
discretion” of the Secretary. The majority’s interpretation
cannot be reconciled with our decision in Zhu.
Moreover, the Court in Kucana clarified that discretionary
decisions such as the Expansion Designation would not be
subject to judicial review. The Court construed the “character
of the decisions” insulated from judicial review by section
1252(a)(2)(B) to include “substantive decisions … made by the
Executive in the immigration context as a matter of grace,
things that involve whether aliens can stay in the country or
not.” Kucana, 558 U.S. at 247 (internal quotation marks
omitted).8 The Secretary’s designation authority over
Security under the Homeland Security Act of 2002. See 6 U.S.C.
§§ 251, 557.
7
After determining “§ 1252(a)(2)(B)(ii) precludes judicial review,”
the Zhu court explained it need not reach the government’s argument
that the Attorney General’s decision was “committed to agency
discretion by law” under the APA. 411 F.3d at 294.
8
In determining that the INA included numerous “decisions falling
within § 1252(a)(2)(B)’s compass,” the Court cited the respondent’s
identification of “over thirty provisions in the relevant subchapter of
the INA” that “explicitly grant the Attorney General … ‘discretion’
to make a certain decision.” Kucana, 558 U.S. at 247 n.14 (quoting
Brief for Respondent 19–20 & n.11). One of the “thirty provisions”
was the expedited removal designation provision at issue here, 8
11
expedited removal involves precisely this type of substantive
discretionary policy. Kucana therefore undermines the
majority’s interpretation of section 1252(a)(2)(B) to cover only
“individualized forms of discretionary relief from removal or
exclusion” and not broader policy decisions such as the
Expansion Designation. Maj. Op. 29. The text plainly bars
judicial review of more than individual claims because it bars
review of “any other decision or action” of the Secretary
“regardless of whether the judgment, decision, or action is
made in removal proceedings.” 8 U.S.C. § 1252(a)(2)(B).
The majority also asserts that the Expansion Designation
is not “of a like kind” as the other decisions covered by section
1252(a)(2)(B), Maj. Op. 27, but the Court expressly defined the
“genre” of decisions shielded from review as “those made
discretionary by legislation.” Kucana, 558 U.S. at 246–47. No
party disputes that the text of the INA, not a regulation, entrusts
the Secretary with discretion over designating aliens for
expedited removal. Therefore, consistent with Kucana,
plaintiffs’ challenge to the Expansion Designation is barred by
section 1252(a)(2)(B).
Finally, the majority’s reliance upon Nasrallah v. Barr,
2020 WL 2814299, is misplaced. Maj. Op. 28, 30. The Court
explicitly stated that its decision “has no effect” on the
jurisdiction stripping provisions of sections 1252(a)(2)(A) and
(B). See Nasrallah, 2020 WL 2814299, at 8 & n.5.9
U.S.C. § 1225(b)(1)(A)(iii)(I). Brief for Respondent 19–20 n.11,
Kucana v. Holder, 2009 WL 2028903 (U.S. 2009).
9
Contrary to the majority’s assertion, Maj. Op. 28, Nasrallah did not
interpret section 1252(a)(2)(B) to apply only to “orders,” a reading
that would ignore the statute’s text, which explicitly applies to “any
other [discretionary] decision or action.” 8 U.S.C. § 1252(a)(2)(B).
The Court addressed section 1252(a)(2)(B) to answer a potential
12
B.
The structure and context of the INA’s jurisdictional
provisions also confirm that the Secretary’s Expansion
Designation is barred from judicial review. Cf. Kucana, 558
U.S. at 245 (looking to statutory context in interpreting section
1252(a)(2)(B)). Section 1252(a)(2) includes two jurisdiction
stripping provisions that are relevant here. As I have already
explained, the Secretary’s Expansion Designation plainly falls
within section 1252(a)(2)(B) because it is a discretionary
policy. The majority maintains, however, that the Expansion
Designation fits only within section 1252(a)(2)(A), which
applies to expedited removal decisions, and that jurisdiction is
preserved through one of the exceptions found in section
1252(e). Maj. Op. 18–25. Yet as the majority’s analysis proves,
the Expansion Designation is both a discretionary action and
an action that pertains to expedited removal, and therefore fits
within both sections 1252(a)(2)(A) and (B). Because both
provisions begin with the clause “Notwithstanding any other
provision of law,” 8 U.S.C. §§ 1252(a)(2)(A), (B), jurisdiction
can be ousted by either provision, but jurisdiction can be
preserved only by finding an exception to both provisions.
This interpretation is directly supported by the Supreme
Court’s recent decision in Nasrallah, which maintains that each
of section 1252(a)(2)’s jurisdiction stripping provisions can
serve as an independent ground to bar jurisdiction. See 2020
WL 2814299, at *8 & n.5 (noting that even if a claim is not
“slippery slope” argument: “If factual challenges to [Convention
Against Torture] orders may be reviewed, what other orders will now
be subject to factual challenges in the courts of appeals?” Nasrallah,
2020 WL 2814299, at *8. In addressing orders, the Court did not
thereby eliminate section 1252(a)(2)(B)’s application to other
discretionary decisions or actions, such as the Expansion
Designation.
13
barred under section 1252(a)(2)(C), it can be independently
barred under sections 1252(a)(2)(A) or (B)). Nasrallah
reinforces that even if jurisdiction over the expedited removal
designation is not precluded by section 1252(a)(2)(A), it is still
independently precluded by section 1252(a)(2)(B).
Thus, even assuming the majority is correct that an
exception to section 1252(a)(2)(A) preserves jurisdiction over
the Expansion Designation, the majority fails to explain how
section 1252(a)(2)(B) does not bar jurisdiction, since it applies
“notwithstanding” anything in section 1252(a)(2)(A). The best
reading of the statute must harmonize the application of both
of these provisions to the Secretary’s Expansion Designation,
because “there can be no justification for needlessly rendering
[these two provisions] in conflict if they can be interpreted
harmoniously.” Antonin Scalia & Bryan A. Garner, READING
LAW: THE INTERPRETATION OF LEGAL TEXTS 180 (2012). The
plain meaning of sections 1252(a)(2)(A) and (B) readily allows
such harmonization because both sections prohibit judicial
review of the Secretary’s designation policies regarding
expedited removal.
Although the jurisdictional ouster in section 1252(a)(2)(B)
is sufficient to bar judicial review of plaintiffs’ claims, it
provides useful context to explain how jurisdiction over the
Expansion Designation is also barred by section 1252(a)(2)(A),
which states that “no court shall have jurisdiction to review …
except as provided in subsection (e), procedures and policies
adopted by the [Secretary] to implement the provisions of
section 1225(b)(1).” 8 U.S.C. § 1252(a)(2)(A)(iv). The
Expansion Designation is a policy adopted by the Secretary to
implement the expedited removal provision, section
1225(b)(1). Therefore, we have no jurisdiction to review the
Designation, unless an exception can be found in section
14
1252(e). Contrary to the majority’s arguments, section 1252(e)
does not save jurisdiction here.
Section 1252(e) covers “Judicial review of orders under
section 1225(b)(1).” Id. § 1252(e). In section 1225(b)(1),
Congress created three classes of decisions: orders of removal,
determinations, and designations. See id. § 1225(b)(1). Orders
of removal and determinations are directed to individual aliens,
while designations apply broadly to “any or all aliens”
designated by the Secretary for expedited removal. Id.
§ 1225(b)(1)(A)(iii)(I). Moreover, the power to enter
determinations and orders of removal is placed in immigration
officers while designations are entrusted exclusively to the
Secretary’s discretion.10 Both section 1252(a)(2)(A) and
section 1252(e) treat these three types of decisions differently.
10
Section 1225(b) authorizes immigration officers to make several
“determination[s],” all of which are made in the context of an
individual alien. For example, immigration officers can “determine[]
that an alien … is inadmissible” and can also “determine[]” whether
“an alien has a credible fear of persecution.” 8 U.S.C.
§§ 1225(b)(1)(A)(i), (b)(1)(B)(ii). Immigration officers may also
enter “orders” of removal to an individual alien. See, e.g., 8 U.S.C.
§ 1225(b)(1)(B)(iii)(I) (“[T]he officer shall order the alien
removed.”). Finally, the Secretary is authorized to make two
“designations”: the expedited removal designation, id.
§ 1225(b)(1)(A)(iii)(I), and the designation of where asylum
interviews will take place, id. § 1225(b)(1)(B)(i). “Designations”
thus differ from “orders” and “determinations” in two ways. First,
they apply broadly rather than in the context of an individual alien.
Second, they are assigned to the Secretary rather than an immigration
officer. Contrary to the majority’s implication, Maj. Op. 25 n.10,
when properly presented with a case concerning the scope of a
statute, judges have an obligation to read the words of that statute,
with or without assistance from the Executive Branch.
15
As relevant here, the Expansion Designation fits within
section 1252(a)(2)(A)(iv), which precludes review of
“procedures and policies” implementing expedited removal,
except as preserved by section 1252(e). Section 1252(e)
expressly addresses orders and determinations. It constrains
review of orders, id. § 1252(e)(5), and grants review of certain
aspects of determinations, id. § 1252(e)(2), (3). Yet section
1252(e) nowhere authorizes judicial review of an expedited
removal “designation.” Instead, it allows courts to review a
“written policy directive,” which arguably would include the
Expansion Designation, but clarifies that such review is
authorized solely in the context of individual “determinations
under section 1225(b) … and its implementation.” Id.
§ 1252(e)(3)(A). Thus, an expedited removal “determination”
is a necessary condition to obtain judicial review of a policy
regarding expedited removal.
Section 1252(e) simply does not address designations,
which are discretionary policies of the Secretary; rather it
explicitly preserves judicial review of policies only in the
context of “determinations,” a term with a specific meaning
under section 1225(b). See supra n.10. Contrary to the
majority, the term “its implementation” cannot be read
expansively to include the Secretary’s “designations,” because
these are a separate category of decisions regarding expedited
removal.11 It would be inconsistent with the text and structure
11
The majority reads section 1252(e)’s authorization of challenges
to “determinations under section 1225(b) … and its implementation”
to allow for a preenforcement challenge to designations in the
absence of an individual determination. This reading, however,
renders the term “determinations” surplusage. Section 1252(e)
allows a court to overturn an individual determination only on the
ground that a written policy or procedure is contrary to law; it does
not allow an alien to challenge the factual or legal conclusions
underpinning the determination. The “determination” is thus the
16
of the statute for Congress to permit preenforcement challenges
to policies such as the Expansion Designation in a subpart that
allows limited review only of individual determinations.
Because section 1252(e) does not revive jurisdiction for
preenforcement challenges to designation policies, the
Expansion Designation cannot be reviewed under the plain
meaning of section 1252(a)(2)(A), which bars judicial review
of policies implementing expedited removal. See 8 U.S.C.
§ 1252(a)(2)(A)(iv).
Thus, both sections 1252(a)(2)(A) and (B) bar judicial
review of this suit.12 Congress coherently and systematically
removed jurisdiction to review the Secretary’s Expansion
Designation in the absence of any affected individual. As this
court has previously explained, the structure of section 1252
necessary procedural vehicle to challenge policies implementing the
INA. If an alien or group could rely on the phrase “its
implementation” to bring a challenge absent an individual
determination, the term “determinations under section 1225(b)”
would be superfluous. 8 U.S.C. § 1252(e)(3)(A); see also Am.
Immigration Lawyers Ass’n (AILA) v. Reno, 199 F.3d 1352, 1359–
60 (D.C. Cir. 2000).
12
The majority’s attempt to use the general-specific canon of
interpretation, Maj. Op. 30 n.13, fails because the canon applies only
when statutory provisions conflict. See READING LAW 183 (general-
specific canon applies only “when the attribution of no permissible
meaning can eliminate the conflict”). Here the provisions read
together create no conflict, but instead consistently strip the courts of
jurisdiction over plaintiffs’ preenforcement suit. Moreover, it is
hardly clear that one provision here is general and the other specific.
Compare 8 U.S.C. § 1252(a)(2)(A) (addressing expedited removal),
with id. § 1252(a)(2)(B) (addressing discretionary decisions). The
Expansion Designation is both an expedited removal policy and a
discretionary policy, a fact the majority’s reading cannot square.
17
demonstrates that “Congress meant to allow actions only by
aliens who have been subjected to the summary procedures
contained in § 1225(b) and its implementing regulations.” Am.
Immigration Lawyers Ass’n (AILA) v. Reno, 199 F.3d 1352,
1359 (D.C. Cir. 2000).
In addition, the majority mistakenly relies on section
1252(a)(2)(D).13 Maj. Op. 29–30. This section allows review
of certain constitutional and legal claims “raised upon a
petition for review filed with an appropriate court of appeals.”
8 U.S.C. § 1252(a)(2)(D). But it has no applicability to
expedited removal designations, which can be reviewed, if at
all, only in an action brought in federal district court pursuant
to the procedures set forth in section 1252(e). See 8 U.S.C.
§ 1252(a)(2)(A). To the extent the majority suggests the
structure of section 1252(a)(2) evinces a commitment to
preserve review, the Supreme Court has reached precisely the
opposite conclusion: “[M]any provisions of IIRIRA are aimed
at protecting the Executive’s discretion from the courts—
indeed, that can fairly be said to be the theme of the
legislation.” Reno v. Am.-Arab Anti-Discrimination Comm.,
525 U.S. 471, 486–87 (1999) (citing, inter alia, 8 U.S.C.
§§ 1252(a)(2)(A), (B)).
Reading on in the statute, section 1252(f) further confirms
that courts cannot engage in preenforcement review of the legal
13
Congress added section 1252(a)(2)(D) to provide an “adequate
substitute for habeas.” Guerrero-Lasprilla, 140 S. Ct. at 1071–72
(internal quotation marks omitted). Contrary to the majority’s
assertion, Maj. Op. 29–30, this provision tells us little about this case
because “[i]mmigration law has long drawn a distinction between …
declaratory and injunctive relief … and habeas relief.” Jennings, 138
S. Ct. at 858 (Thomas, J., concurring in part and concurring in the
judgment) (citing INS v. St. Cyr, 533 U.S. 289, 309–10 (2001)); see
also Heikkila, 345 U.S. at 230.
18
validity of an expedited removal designation. 8 U.S.C.
§ 1252(f)(1). Section 1252(f) allows for injunctive relief only
“with respect to the application of such provisions to an
individual alien against whom proceedings under such part
have been initiated.” Id. Yet no individual proceedings have
been initiated against any member of the plaintiff
organizations. Cf. AILA, 199 F.3d at 1359 (noting that section
1252(f) bolsters the conclusion that “Congress must have
contemplated that lawsuits challenging its enactment would be
brought, if at all, by individual aliens who … were aggrieved
by the statute’s implementation”).
Congress cannot confer jurisdiction on the courts to issue
a merely advisory opinion; but that would be the consequence
of reading section 1252(e)(3)(A) to confer jurisdiction over
plaintiffs’ suit. Even if the court found the Expansion
Designation to be unlawful, it is precluded from providing any
injunctive relief. See 8 U.S.C. § 1252(f)(1); cf. AILA, 199 F.3d
at 1359–60 (“Congress meant to allow litigation challenging
the new system by, and only by, aliens against whom the new
procedures had been applied.”).
The text and structure of the INA’s jurisdiction stripping
provisions demonstrate that we lack the authority to review
plaintiffs’ claims regarding the Expansion Designation.
C.
Reading the INA’s jurisdictional bars to bar jurisdiction is
further supported by the fact that there is no “longstanding
exercise of judicial review” of expedited removal designations.
Kucana, 558 U.S. at 237. Twenty years ago, this court upheld
the expedited removal system generally against constitutional
challenge. See AILA, 199 F.3d 1352. Since that time, no court
has examined the merits of the Secretary’s expedited removal
designations. See 82 Fed. Reg. 4,902 (Jan. 17, 2017); 69 Fed.
19
Reg. 48,877 (Aug. 11, 2004); 67 Fed. Reg. 68,924 (Nov. 13,
2002). Moreover, the Expansion Designation is not like the
individual immigration determinations courts generally
review. Instead, it is more like an enforcement policy, because
the agency must balance different factors, including ordering
its immigration priorities, contending with limited resources,
and fulfilling statutory requirements. Cf. Heckler v. Chaney,
470 U.S. 821, 831–32 (1985).
In the Expansion Designation, the Secretary made clear he
was exercising his discretion pursuant to his statutory authority
under the INA and “issuing the New Designation to use more
effectively and efficiently [the agency’s] limited resources to
fulfill its mission to enforce the immigration laws and ensure
the security of the Nation’s borders.” 84 Fed. Reg. at 35,411.
Exercises of enforcement discretion are not ordinarily subject
to judicial review. See, e.g., Ass’n of Irritated Residents v. EPA,
494 F.3d 1027, 1032 (D.C. Cir. 2007) (“These [enforcement]
judgments—arising from considerations of resource allocation,
agency priorities, and costs of alternatives—are well within the
agency’s expertise and discretion.”); Brock v. Cathedral Bluffs
Shale Oil Co., 796 F.2d 533, 538 (D.C. Cir. 1986) (Scalia, J.)
(“[T]he statement here in question pertains to an agency’s
exercise of its enforcement discretion—an area in which the
courts have traditionally been most reluctant to interfere.”).
The INA leaves expedited removal designations to the
“sole and unreviewable discretion” of the Secretary and he may
modify them “at any time.” 8 U.S.C. § 1225(b)(1)(A)(iii)(I).
Congress clearly placed designations within the class of
discretionary enforcement policies not traditionally subject to
judicial review. Cf. Kucana, 558 U.S. at 237. Such an explicit
conferral of discretion “reflects a congressional recognition”
that the Secretary “can make necessary adjustments for
unforeseen developments and changing requirements” without
20
judicial interference. Lincoln v. Vigil, 508 U.S. 182, 193 (1993)
(internal quotation marks omitted). This historical lack of
judicial review reinforces the plain meaning of the text and
structure of the INA to preclude review of the Secretary’s
Expansion Designation. See Kucana, 558 U.S. at 251–52.
***
The majority concludes that plaintiffs’ claims are not
barred and are properly reviewed under (apparently) either
general federal question jurisdiction or jurisdiction conferred
directly by the INA. Maj. Op. 18 (citing 28 U.S.C. § 1331), 39
(citing 8 U.S.C. § 1252(e)). Yet the INA strips jurisdiction over
discretionary decisions as well as policies to implement
expedited removal absent an individual “determination.” These
provisions separately and independently preclude judicial
review of the Expansion Designation and apply
“notwithstanding any other provision of law.” See 8 U.S.C.
§§ 1252(a)(2)(A), (B). This means the INA’s jurisdictional
ousters apply notwithstanding general federal question
jurisdiction under section 1331. See Patchak, 138 S. Ct. at 905.
In sum, neither the INA nor section 1331 allow us to exercise
jurisdiction over plaintiffs’ suit.
III.
Even on the majority’s view that the district court had
jurisdiction over plaintiffs’ suit, the INA categorically
prohibits injunctive relief absent proceedings against an
individual alien. The anti-injunction provision states in full:
Regardless of the nature of the action or claim
or of the identity of the party or parties bringing
the action, no court (other than the Supreme
Court) shall have jurisdiction or authority to
enjoin or restrain the operation of the provisions
21
of part IV of this subchapter,[14] as amended by
the [IIRIRA], other than with respect to the
application of such provisions to an individual
alien against whom proceedings under such part
have been initiated.
8 U.S.C. § 1252(f)(1). This provision speaks in the broadest
possible terms and unambiguously prohibits the
preenforcement injunction the district court entered here.
The expedited removal provision allows the Secretary in
his “sole and unreviewable discretion” to designate classes of
aliens up to the statutory maximum for expedited removal “at
any time.” Id. § 1225(b)(1)(A)(iii)(I). The Secretary is
entrusted with carrying this provision into operation. See id. By
enjoining the Secretary’s Expansion Designation, the district
court “enjoin[ed] … the operation” of the expedited removal
provision. See Nken v. Holder, 556 U.S. 418, 431–32 (2009)
(noting the anti-injunction provision demonstrates
congressional “concern[] about the possibility that courts
would enjoin application of particular provisions of the INA”).
The anti-injunction provision carves out a single exception
for “the application of such provisions to an individual alien
against whom proceedings under such part have been
initiated.” 8 U.S.C. § 1252(f)(1). Here, the exception has not
been triggered because expedited removal proceedings have
not “been initiated” against any member of the plaintiff
organizations, nor indeed, against any individual. Thus, no
court “other than the Supreme Court” has jurisdiction to enjoin
the operation of the Expansion Designation. Id.; see American-
Arab Anti-Discrimination Comm., 525 U.S. at 481–82 (the
14
“[P]art IV of this subchapter” refers to 8 U.S.C. §§ 1221–1231.
The expedited removal provision is codified as 8 U.S.C. § 1225.
22
anti-injunction provision “is nothing more or less than a limit
on injunctive relief”); Padilla v. ICE, 953 F.3d 1134, 1150 (9th
Cir. 2020) (“Congress intended [the anti-injunction provision]
to prohibit injunctive relief with respect to organizational
plaintiffs.”). The anti-injunction provision thus runs in parallel
to the jurisdiction stripping provisions, which allow judicial
review only in the context of concrete individual
“determinations.” See 8 U.S.C. §§ 1252(a)(2)(A), 1252(e)(3).
The district court reached an opposite conclusion by
relying on a dubious distinction between enjoining the statute
and enjoining the Secretary from carrying the statute into
operation. See Make the Rd. New York v. McAleenan, 405 F.
Supp. 3d 1, 68 n.37 (D.D.C. 2019). If the anti-injunction
provision applies only to injunctions restraining the statutory
text, it is a nullity, indeed an absurdity, because injunctions run
against an officer, not statutory text. The anti-injunction
provision prohibits injunctions restraining “the operation of the
provisions of part IV of this subchapter.” 8 U.S.C. § 1252(f)(1).
Of course the Expansion Designation is not part of the statute;
however, designations are the mechanism by which the
Secretary carries his expedited removal authority into
“operation.” By enjoining the Secretary from issuing the
Expansion Designation, the district court “enjoin[ed] or
restrain[ed] the operation of” the expedited removal
designation provision in violation of the INA.15 The district
15
The Sixth Circuit rejected a similar argument that “the district
court was not enjoining or restraining the statutes” under section
1252(f)(1) as “implausible on its face” because “[t]he district court
… created out of thin air a requirement … that does not exist in the
statute; and adopted standards that the government must meet.”
Hamama v. Adducci, 912 F.3d 869, 879–80 (6th Cir. 2018). So too
here. “If these limitations on what the government can and cannot do
under the … provision are not ‘restraints,’ it is not at all clear what
would qualify as a restraint” under section 1252(f). Id.
23
court thus not only lacked jurisdiction over the case, it also
lacked jurisdiction to enter this injunctive remedy.16
***
Although I generally agree with the majority’s conclusion
that the expedited removal designation is committed to agency
discretion by law, we have an antecedent duty to ensure
jurisdiction. Here, the INA unambiguously withholds
jurisdiction over plaintiffs’ suit to enjoin the Expansion
Designation. Courts must respect limits on their jurisdiction,
particularly in areas such as immigration that implicate power
traditionally wielded by the political branches. See Fiallo v.
Bell, 430 U.S. 787, 792 (1977) (“[T]he power to expel or
exclude aliens [is] a fundamental sovereign attribute exercised
by the Government’s political departments largely immune
from judicial control.”) (quotation marks omitted); Heikkila,
345 U.S. at 233–34 (noting the “peculiarly political nature of
the legislative power over aliens”). Decisions of the Supreme
Court and this circuit have consistently read the INA’s
jurisdiction stripping provisions to mean what they say.
16
The district court’s entry of nationwide relief is particularly
egregious in light of the INA’s anti-injunction provision, which
explicitly limits relief to an alien “against whom proceedings … have
been initiated.” 8 U.S.C. § 1252(f)(1). While the legality of
nationwide injunctions is in doubt under both the Constitution and
federal statutes, see Trump v. Hawaii, 138 S. Ct. 2392, 2424–29
(2018) (Thomas, J., concurring), it is especially problematic here
given the INA’s unambiguous foreclosure of any injunctive relief
outside a proceeding against an individual alien. Rather than limiting
relief to individual affected aliens, as required by the statute, the
district court upended the Secretary’s discretion through a “cosmic”
injunction extending across the land. DHS v. New York, 140 S. Ct.
599, 600 (2020) (Gorsuch, J., concurring in the grant of stay).
24
In light of these precedents, the majority manages to “knit”
together an argument to preserve jurisdiction only by glossing
over the plain meaning of the INA and relying on the
presumption of judicial review. Maj. Op. 18. Yet because
Congress possesses plenary authority over the jurisdiction of
the lower federal courts, the presumption of reviewability must
yield to a clear statement removing jurisdiction. “[W]hat the
Congress gives, the Congress may take away.” Knapp Medical
Center v. Hargan, 875 F.3d 1125, 1128 (D.C. Cir. 2017). With
respect to expedited removal, Congress was crystal clear in
conferring designations to the Secretary’s discretion and
barring our review over preenforcement challenges. By
disregarding the INA’s multi-layered jurisdictional bar, the
majority encroaches upon Congress’s plenary power over
jurisdiction and upon the political branches’ authority over
immigration. We witness yet another marker on the road to
government by injunction. I respectfully dissent.