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
No. 19-5298
United States Court of Appeals FOR THE DISTRICT OF COLUMBIA CIRCUIT
Argued March 6, 2020 Decided June 23, 2020
Appeal from the United States District Court for the District of Columbia (No. 1:19-cv-02369)
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 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,
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.”
Three organizations whose members are covered by that expansion (“Associations“) filed suit, contending that the Secretary‘s decision violated the Administrative Procedure Act (“APA“),
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,”
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
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[,]”
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
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.
The process is scarcely more involved for individuals who assert an intention to apply for asylum or a fear of persecution. See
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 “arriving” individuals, defined as those “who seek[] admission to or transit through the United
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).
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,
Second, Subsection 1252(a)(2)(A)‘s bar on judicial review of the expedited removal process is subject to enumerated exceptions.
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
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 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,
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
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 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
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
II
The district court exercised federal question jurisdiction over the APA claims under
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 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
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 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,
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
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[.]”
That review specifically includes “determinations under section 1225(b) of this title and its implementation[.]”
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]
is not consistent with applicable provisions of [the INA] or is otherwise in violation of law.”
Third, earlier in Section 1252, Congress underscored its preservation of judicial review
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
(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.
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), 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,
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 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
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,”
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
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 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
(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
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
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[.]”
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 “§ 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.
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
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
In short, the statutory text, confirmed by the Supreme Court‘s holding in Kucana and reaffirmed in Nasrallah, 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.”
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
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, 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,
But that cause of action is not available where, among other things, “agency action is committed to agency discretion by law.”
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. 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,
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 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.”
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 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
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
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
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
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
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 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.
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.“). 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.”
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.
IV
We hold that the district court properly exercised jurisdiction under
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
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,”
permits, or none at all, or anything in between, as far as
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
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
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. 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
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
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.”
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
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
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 requirements he “deems … to be in the national interest.” Id. at 293 (quoting
Moreover, the Court in Kucana clarified that discretionary decisions such as the Expansion Designation would not be subject
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
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
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 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).”
Section 1252(e) covers “Judicial review of orders under section 1225(b)(1).”
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,
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 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
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.”
Reading on in the statute, section 1252(f) further confirms that courts cannot engage in preenforcement review of the legal validity of an expedited removal designation.
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
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. 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.”
***
The majority concludes that plaintiffs’ claims are not barred and are properly reviewed under (apparently) either general federal question jurisdiction or jurisdiction
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 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.
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.”
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.”
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.”
* * *
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.
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
Notes
(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 Attorney General to implement such section, is not consistent with applicable provisions of this subchapter or is otherwise in violation of law.
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 implement the provisions of section 1225(b)(1) of this title.
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.“).
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,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].”