MAKE THE ROAD NEW YORK V. NOEM (CHALLENGING “EXPEDITED REMOVAL” OF IMMIGRANTS)

The day after Donald Trump’s inauguration, his administration announced a new plan to massively expand fast-track deportation (called “expedited removal”) of undocumented immigrants without a fair legal process. The next day (January 22, 2025) we filed suit challenging that plan, together with the National ACLU and the New York Civil Liberties Union. The plaintiff in the lawsuit is Make the Road New York, an organization that serves immigrant communities in that state.

The policy targets undocumented immigrants nationwide. People apprehended by ICE who cannot prove that they are U.S. citizens, or that they have permission to be in the United States, or that they have been in the country continuously for at least two years, can be summarily deported. Under this rule, immigrants who may have been integrated into our communities would get less due process contesting their deportation than they would contesting a traffic ticket. Multiple U.S. citizens have been erroneously deported under the previous, much more limited version of “expedited removal,” because they have been unable to prove their status to the satisfaction of an immigration officer.

The lawsuit contends that such people are entitled to due process, meaning a fair opportunity to consult with counsel and to gather and present evidence showing that they are not subject to removal, including a fair opportunity to apply for asylum or other relief. The lawsuit alleges violations of the Fifth Amendment’s due process clause, the Immigration and Nationality Act, and the Administrative Procedure Act.

In March, we filed an amended complaint with updated facts about the Trump administration’s new policies. The government filed a motion to dismiss the case, which we opposed, and also asked the court to rule on that motion before allowing us to seek even temporary relief against the program. The court denied the latter request, and on June 10 we filed our motion to postpone the implementation of the new program. After the government opposed that motion and we replied, the court heard argument on July 9, 2025.

On August 29, 2025, the court granted our motion and stayed (enjoined) the new policies. On September 2, the government appealed, and on September 9 filed a motion to stay the district court’s order pending appeal. On September 15 we filed our opposition and on September 19 the government replied. The court of appeals heard oral argument on October 6, and on November 22, in opinions totaling 100 pages, denied the government’s motion for a stay. Meanwhile, briefs were filed on the merits, and the court of appeals held argument on December 9, 2025.

On June 23, 2026, the court of appeals reversed, ruling that the government is not required “to instruct individuals on available defenses” against deportation. Judge Wilkins dissented, concluding that the failure to ask or advise about the two-year limit on the use of expedited removal violates due process. On July 27 we filed a petition for rehearing en banc, asking the full court to review the case.