Make the Road New York v. Mullin: The D.C. Circuit Lets Nationwide Expedited Removal Stand
- Citation
- Make the Road New York v. Mullin, No. 25-5320 (D.C. Cir. June 23, 2026), vacating the stay entered in No. 1:25-cv-00190 (D.D.C.)
- Court
- U.S. Court of Appeals for the District of Columbia Circuit
- Decided
- June 23, 2026
- Statute
- 8 U.S.C. § 1225(b)(1)(A)(iii); 8 U.S.C. § 1252(e)(2)–(3); Fifth Amendment Due Process Clause
- Holding
- The 2025 nationwide designation for expedited removal does not, on its face, violate the Due Process Clause. The district court’s stay of the designation is vacated.
Thirty years ago Congress built a second track for deportation and called it expedited removal. Where ordinary removal proceedings can take years, expedited removal often takes days. The question in this case was how far the Executive may extend that track into the interior of the country — and the D.C. Circuit’s answer, delivered on June 23, 2026, is: as far as the statute’s own text allows.
The statutory architecture
Expedited removal reaches two groups. The first is people “arriving in the United States,” 8 U.S.C. § 1225(b)(1)(A)(i). The second — the one at issue here — is people already inside the country who were neither admitted nor paroled and who cannot show two years of continuous physical presence, if the Secretary of Homeland Security designates them. Id. § 1225(b)(1)(A)(iii).
Congress wrote the exclusions itself. Anyone admitted or paroled is outside the provision, even if they are here unlawfully. So is anyone who can prove two straight years of presence, lawful or not. Whether to designate anyone else, Congress left to the Executive.
The process is thin by design. An immigration officer inspects; if the officer finds the person inadmissible and no exception applies, the officer orders removal with no hearing before an immigration judge and no ordinary administrative review. The officer must state the charges and take a sworn response, interpretation must be provided if needed, and a supervisor must review and approve the order before it becomes final. 8 C.F.R. § 235.3(b)(2)(i), (b)(7). A person may claim that the track does not apply to him at all — U.S. citizenship, lawful permanent residence, refugee or asylee status, admission or parole, or enough continuous presence — and the regulations let him put in evidence. Id. § 235.3(b)(5)–(7).
Why this matters to habeas practitioners in particular
Because the judicial review that remains is very nearly nothing. Under § 1252(e)(2), a court entertaining a habeas petition from someone under an expedited-removal order may decide only three things: whether the petitioner is an alien, whether an expedited-removal order was in fact issued, and whether the petitioner holds lawful-permanent-resident, refugee or asylee status. The underlying finding of inadmissibility is off the table, and so is the credible-fear determination. Id. § 1252(e)(5).
That is the whole of it. A habeas petition cannot be used to argue that the officer got the facts wrong, that the fear interview was mishandled, or that removal is unjust. Systemic challenges — to the statute, the regulations, or certain written policies — must go to the District Court for the District of Columbia under § 1252(e)(3), within the statutory time limit. Every expansion of the designation therefore transfers a slice of the removal docket out of the world where habeas does useful work and into a world where it does almost none.
Thirty years of designations
The Executive has always implemented expedited removal through Federal Register designations, and until 2025 each one stopped well short of the statutory ceiling. The 1997 designation covered people arriving at ports of entry and those interdicted at sea. 62 Fed. Reg. 10,312. A 2002 designation added certain people who arrived by sea. 67 Fed. Reg. 68,924. In 2004 the Secretary reached everyone encountered within 100 miles of the border and within fourteen days of entry — and said explicitly that he was declining to go further in order to focus enforcement resources. 69 Fed. Reg. 48,877, 48,879. In 2017 the exemption for Cuban nationals came out. 82 Fed. Reg. 4,902.
July 2019 brought the first attempt at the ceiling: expedited removal anywhere in the country, for anyone not admitted or paroled who could not show two years’ presence. 84 Fed. Reg. 35,409. It was preliminarily enjoined two months later, Make the Road N.Y. v. McAleenan, 405 F. Supp. 3d 1 (D.D.C. 2019), and this court reversed that injunction, Make the Road N.Y. v. Wolf, 962 F.3d 612 (D.C. Cir. 2020). DHS rescinded the designation in March 2022. 87 Fed. Reg. 16,022. While it was live it was reportedly applied to twenty-one people.
The 2025 designation and the ruling
On January 21, 2025, Acting Secretary Benjamine Huffman authorized nationwide expedited removal for people who cannot demonstrate two years of continuous physical presence. 90 Fed. Reg. 8,139 (Jan. 24, 2025). The district court stayed the expansion, holding that it likely violated due process. The D.C. Circuit vacated the stay. Judge Walker wrote for the court; Judge Wilkins joined Parts I, II and IV, and Judge Rao joined Parts I–III, IV.B and V. Judge Rao concurred in the judgment, Judge Walker joining Part II.A of that opinion; Judge Wilkins concurred in part and dissented in part.
The fractured line-up is worth noticing. A reader who wants the holding rather than the reasoning will find that the panel agreed on the disposition and divided over how to get there — which is a familiar pattern in this area and a reason to read the concurrences before relying on any particular passage.
Significance
The practical consequence is a large one, and it is not confined to the border. A person encountered in Chicago or Atlanta who cannot document two years of presence is now, as a matter of designation, eligible for a process that produces a final removal order in days, with mandatory detention throughout, 8 U.S.C. § 1225(b)(1)(B)(iii)(IV), and with habeas review limited to the three questions in § 1252(e)(2).
For anyone advising a client in that posture, the operative work has moved forward in time. The two-year showing and the claim to admission, parole or status are made to the officer, on the record the regulations provide, before the order is final — because afterwards there is no forum in which to make them. The 2019 designation reached twenty-one people before it was enjoined. Whether the 2025 designation will be used at a comparable scale is the question the next year of this docket will answer.
Filed under Procedural & Doctrinal. Published June 23, 2026.