The Department of Homeland Security’s Nationwide Expansion of Expedited Removal

The expansion prompts significant questions concerning the relationship between the federal government’s broad power over the entry and removal of aliens and the due process rights of aliens located within the United States. [...] During these “formal” removal proceedings, the alien has a number of procedural protections, including the right to counsel at his own expense, the right to apply for any available relief from removal (such as asylum), the right to present testimony and evidence on the alien’s own behalf, and the right to appeal an adverse decision to the Board of Immigration Appeals (BIA). [...] The court also ruled that the plaintiffs were likely to succeed on the merits of their APA claims because, in expanding expedited removal, DHS failed to comply with notice-and-comment procedures and to consider the “potential negative impacts” of expanding expedited removal into the interior of the United States. [...] Starting with the plaintiffs’ substantive claim that DHS failed to offer a “reasoned explanation” for the expedited removal expansion, the court recognized that, under the APA, there is no cause of action when the “agency action is committed to agency discretion by law.” The court determined that the plaintiffs’ challenge to DHS’s designation of additional classes of aliens subject to expedited re. [...] Circuit’s ruling, DHS may proceed with the expansion of expedited removal into the interior of the United States pending the outcome of the litigation.