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Immigration

D.C. Circuit Rejects Challenge to Trump Administration Expedited Removal Policy (Is an En Banc Petition to Follow?)

Is the D.C. Circuit willing to allow "conservative" panel decisions on hot-button issues to stand? And is en banc review more than a way to ensure further review at One First Street?

Jonathan H. Adler | 6.24.2026 10:26 AM

Yesterday, in Make the Road New York v. Mullin, a divided panel of the U.S. Court of Appeals for the D.C. Circuit vacated a district court's stay blocking the Department of Homeland Security from applying "expedited removal" processes more broadly. Judge Walker wrote the opinion for the court. Judge Rao concurred in part and concurred in the judgment. Judge Wilkins concurred in part and dissented in part. Given the subject matter of this case, and the panel's composition, I suspect Make the Road will seek en banc review, and that there's a strong chance such a petition will be granted, as the full D.C. Circuit is significantly more liberal than this panel.

Judge Walker's offered this summary at the start of his opinion:

Thirty years ago, Congress created a new process for deporting illegal aliens. It is called "expedited removal." Unlike other statutorily required procedures that can take years to complete, expedited removal often takes just a few days.

At issue here is the provision allowing the Secretary of Homeland Security to designate certain aliens already in the country for expedited removal. Congress excluded many people from that provision. Any aliens admitted or paroled are excluded, even if they are here illegally. So too is anyone who can prove he has lived here — legally or illegally — for at least two straight years.

As for whether to designate other aliens for expedited removal, Congress let the Executive decide. And for many years, while some were designated, others were not. But that changed in January 2025 when the Executive expanded expedited removal to the maximum extent allowed by Congress.

The district court stayed the expansion, holding that it likely violated due process.

Because it does not, we vacate the stay.

Judge Rao agreed with Judge Walker that the expansion of expedited removal does not violate due process, but disagreed with the majority's conclusion that this question is subject to judicial review. Judge Wilkins agreed with Judge Walker that the expedited review policy was........

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