Make The Road New York v. Chad F. Wolf, 962 F.3d 612

Background

In July 2019 DHS published an "Expansion Designation" extending expedited removal to all non‑admitted, non‑paroled aliens present in the U.S. for less than two continuous years under 8 U.S.C. § 1225(b)(1)(A)(iii).
Three advocacy organizations sued on behalf of members, asserting APA challenges (arbitrary-and-capricious and failure to use notice‑and‑comment), statutory (INA) and constitutional claims; the district court granted a preliminary injunction based on the APA claims.
Key statutory text: the Designation Provision vests the Secretary with "sole and unreviewable discretion" to designate groups for expedited removal and to modify designations "at any time."
The INA contains multiple jurisdictional limits (8 U.S.C. § 1252(a)(2)(A) and (B)) but also a district‑court review provision for challenges to the implementation of § 1225(b) in 8 U.S.C. § 1252(e)(3)(A). The INA also limits injunctive relief in § 1252(f).
The D.C. Circuit majority held the district court had jurisdiction under § 1252(e) and § 1331, but ruled the Secretary’s designation decision is committed to agency discretion by law (5 U.S.C. § 701(a)(2)), so the APA does not provide a cause of action for substantive review and notice‑and‑comment was not required; it reversed the preliminary injunction.
A dissent argued Congress unambiguously stripped jurisdiction over such pre‑enforcement challenges and that the INA’s anti‑injunction provision forecloses the district court’s nationwide injunction.

Issues

Issue	Plaintiff's Argument	Defendant's Argument	Held
Jurisdiction — may district court hear APA challenge to the Expansion Designation?	§1252(e)(3) and §1331 preserve district‑court review of regulations/policies implementing §1225(b); associational standing is proper.	INA’s broad jurisdiction‑stripping ( §§1252(a)(2)(A),(B) ) precludes district‑court review of designation policies; review, if any, is cabined.	Court: District court had jurisdiction under §1252(e) and §1331 to hear the Associations’ APA claims.
APA substantive reviewability — is the designation "committed to agency discretion by law"?	Secretary’s decision must be reasoned and is reviewable under the APA; statute and structure supply standards (e.g., screening and admin concerns).	Statute gives the Secretary "sole and unreviewable discretion" with power to modify "at any time," supplying no judicially manageable standards; §701(a)(2) bars APA review.	Court: The Designation Provision commits the decision to the Secretary’s unreviewable discretion; APA substantive review not available.
Notice‑and‑comment rulemaking — did the Secretary need to use formal rulemaking?	Expansion is a substantive rule that significantly changes rights/procedures; notice‑and‑comment was required absent good cause.	Even if substantive, the statutory grant of "sole and unreviewable discretion" and power to modify "at any time" makes notice‑and‑comment unnecessary and futile.	Court: No notice‑and‑comment requirement applies here because Congress committed the decision and allowed modification "at any time," undermining the purpose of notice‑and‑comment.
Remedies / injunctionability — could district court enter nationwide preliminary injunction?	Injunctive relief was appropriate to prevent irreparable harms to members pending review.	INA §1252(f) and the statutory scheme limit injunctive relief and channel review; nationwide injunctions are improper here.	Court: Because the APA causes of action fail, the panel did not decide availability of injunction; majority reversed injunction on merits. Dissent: would dismiss for lack of jurisdiction and bar the injunction under §1252(f).

Key Cases Cited

Guerrero‑Lasprilla v. Barr, 140 S. Ct. 1062 (2020) (strong presumption in favor of judicial review of administrative action)
Kucana v. Holder, 558 U.S. 233 (2010) (interpretation of §1252(a)(2)(B) and limits on review of discretionary decisions)
Department of Commerce v. New York, 139 S. Ct. 2551 (2019) (§701(a)(2) is a narrow exception where no judicially manageable standard exists)
Weyerhaeuser Co. v. U.S. Fish & Wildlife Serv., 139 S. Ct. 361 (2018) (clarifying when statute supplies no meaningful standard)
Lincoln v. Vigil, 508 U.S. 182 (1993) (even where substantive review is limited, notice‑and‑comment may sometimes still apply)
Perez v. Mortgage Bankers Ass'n, 575 U.S. 92 (2015) (agency must consider and respond to significant comments)
Reno v. Am.-Arab Anti‑Discrimination Comm., 525 U.S. 471 (1999) (IIRIRA’s theme protecting Executive discretion from courts)
Heckler v. Chaney, 470 U.S. 821 (1985) (enforcement discretion typically unreviewable)
Webster v. Doe, 486 U.S. 592 (1988) (statutory text committing action to agency discretion signals nonreviewability)
Bourdon v. United States Dep't of Homeland Sec., 940 F.3d 537 (11th Cir. 2019) (statutory "sole and unreviewable discretion" indicates nonreviewability)
American Immigration Lawyers Ass'n v. Reno, 199 F.3d 1352 (D.C. Cir. 2000) (limits on organizational standing and discussion of §1252(e) litigation by affected individuals)
Zhu v. Gonzales, 411 F.3d 292 (D.C. Cir. 2005) (applying §1252(a)(2)(B) to agency decisions entrusted to Executive discretion)
Nielsen v. Preap, 139 S. Ct. 954 (2019) (§1252(f) does not bar declaratory relief)
Oryszak v. Sullivan, 576 F.3d 522 (D.C. Cir. 2009) (APA provides limited cause of action for parties adversely affected by agency action)