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Case Name Make the Road New York v. Wolf IM-DC-0095
Docket / Court 1:19-cv-02369-KBJ ( D.D.C. )
State/Territory District of Columbia
Case Type(s) Immigration and/or the Border
Special Collection Trump Immigration Enforcement Order Challenges
Attorney Organization ACLU Affiliates (any)
ACLU Immigrants' Rights Project
American Immigration Council's Legal Action Center
Case Summary
This case concerns the Trump Administration’s decision to expand “expedited removal,” under which low-level Department of Homeland Security (“DHS”) immigration officers were allowed to summarily deport individuals from the United States without a court hearing or opportunity for ... read more >
This case concerns the Trump Administration’s decision to expand “expedited removal,” under which low-level Department of Homeland Security (“DHS”) immigration officers were allowed to summarily deport individuals from the United States without a court hearing or opportunity for meaningful review. The plaintiffs were a number of nonprofits, including Make the Road New York, La Union del Pueblo Entero, WeCount, the National Immigration Litigation Alliance, and a number of private plaintiffs. The ACLU helped represent the plaintiffs. The states of California, Connecticut, Delaware, Hawaii, Illinois, Maryland, Massachusetts, Michigan, Minnesota, Nevada, New Jersey, New Mexico, New York, Oregon, Vermont, Virginia, and Washington, as well as Washington D.C., signed on as movants.

The plaintiffs filed suit in the U.S. District Court for the District of Columbia on August 6, 2019. The plaintiffs argued the expedited removal policy: 1) violated the Administrative Procedure Act (APA) (5 U.S.C. §553) by not complying with notice and comment rulemaking procedures; 2) violated the APA for being arbitrary and capricious; 3) violated the Immigration and Nationality Act (INA) (8 U.S.C. §1225(a)) for depriving persons faced with expedited removal with minimal safeguards of due process; 4) violated the INA for restricting access to counsel for those facing expedited removal; 5) violated the Due Process clause of the Fifth Amendment; and 6) violated the Suspension Clause (Art. 1 §9, cl. 2) by depriving subjected individuals to removal without federal court review. Judge Ketanji Brown Jackson was assigned to the case.

The plaintiffs sought a declaration that the policy was unconstitutional and a violation of law, injunctive relief ordering the government to refrain from implementing the rule, and reasonable attorney fees. The same day the case was filed, the plaintiffs moved for a preliminary injunction to enjoin the government from applying the Notice Designating Aliens for Expedited Removal.

On September 27, 2019, Judge Jackson granted the plaintiff’s motion for preliminary injunction and enjoined the Secretary of DHS from enforcing the policy changes in question. Judge Jackson found that the Department of Homeland Security had likely violated the APA since the decision to alter the expedited removal rule had likely resulted from arbitrary and capricious decision making—this was based on evidence provided by the plaintiffs of flaws in the pre-existing expedited scheme which the agency failed to account for. 405 F.Supp.3d 1.

The government appealed the decision on the preliminary injunction to the U.S. Court of Appeals of the D.C. Circuit on October 25, 2019. The appeal was expedited after a government request. On June 23, 2020, the D.C. Circuit Court reversed the preliminary injunction, finding that while DHS’s actions were subject to judicial review, the rule change implemented constituted agency action committed to agency discretion by law. The circuit court pointed to the language of the Designation Provision of the INA (8 U.S.C. §1225(b)) as evidence of congressional intent to leave decisions regarding the scope of expedited removal within the Secretary’s independent judgement. The relevant text read: “Such designation shall be in the sole and unreviewable discretion of the [Secretary] and may be modified at any time.” The court remanded the case back to the district court. The plaintiffs filed a petition for rehearing en banc on September 4, 2020; the D.C. Circuit Court denied this on September 22.

Back at the district court, the plaintiffs filed a second amended complaint on October 19, 2020. This complaint added a claim that DHS’s policy violated the Homeland Security Act (6 U.S.C. §113(g)). The plaintiffs filed a second motion for preliminary injunction on October 19, 2020.

Before the district court ruled on the second motion for preliminary injunction, Joe Biden won the 2020 Presidential election. On January 20, 2021, the Biden-led DHS issued a memo indicating the department would be reviewing its rules, policies, and practices concerning immigration enforcement. Judge Jackson stayed the case on February 8, 2021, pending the Biden Administration’s review and possible alteration of the expedited removal policy. The case remained stayed throughout the spring and summer of 2021 after a series of joint status reports from the parties. Meanwhile, Judge Jackson was elevated to the D.C. Circuit Court of Appeals by President Biden and the US Senate in June, and was thus unassigned from the case.

The case remains open and proceedings remain stayed.

John Duffield - 08/04/2021


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Issues and Causes of Action
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Issues
Constitutional Clause
Due Process
Due Process: Procedural Due Process
Content of Injunction
Preliminary relief granted
Defendant-type
Jurisdiction-wide
General
Access to lawyers or judicial system
Immigration/Border
Deportation - judicial review
Deportation - procedure
Plaintiff Type
Non-profit NON-religious organization
Type of Facility
Government-run
Causes of Action Administrative Procedure Act, 5 U.S.C. §§ 551 et seq.
Declaratory Judgment Act, 28 U.S.C. § 2201
Ex parte Young (federal or state officials)
Immigration and Nationality Act (INA), 8 U.S.C. §§ 1101 et seq.
Defendant(s) Department of Homeland Security
Plaintiff Description A number of immigrant right nonprofit groups
Indexed Lawyer Organizations ACLU Affiliates (any)
ACLU Immigrants' Rights Project
American Immigration Council's Legal Action Center
Class action status sought No
Class action status outcome Not sought
Filed Pro Se No
Prevailing Party Defendant
Public Int. Lawyer Yes
Nature of Relief None yet
Preliminary injunction overturned by appeals court
Source of Relief None yet
Filed 08/06/2019
Case Ongoing Yes
Additional Resources
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  See this case at CourtListener.com (May provide additional documents and, for active cases, real-time alerts)
  Implementation of Executive Order 13768, "Enhancing Public Safety in the Interior of the United States
The Washington Post
Date: May 22, 2017
By: Jefferson Sessions (U.S. Department of Justice)
[ Detail ] [ External Link ]

  Re: Implementing the President's Border Security and Immigration Enforcement Improvements Policies (Final, 2/20/2017)
dhs.gov
Date: Feb. 20, 2017
By: DHS Secretary John Kelly (United States Department of Homeland Security)
[ Detail ] [ PDF ] [ External Link ]

  Re: Enforcement of the Immigration Laws to Serve the National Interest (Final, 2/20/2017)
dhs.gov
Date: Feb. 20, 2017
By: DHS Secretary John Kelly (United States Department of Homeland Security)
[ Detail ] [ PDF ] [ External Link ]

  Executive Order 13767: Border Security and Immigration Enforcement Improvements
Federal Register
Date: Jan. 27, 2017
By: President Donald Trump (Office of the President)
Citation: 82 Fed. Reg. Presidential Documents 8793 (Jan. 27, 2017)
[ Detail ] [ PDF ]

  Executive Order 13768: Enhancing Public Safety in the Interior of the United States
Federal Register
Date: Jan. 25, 2017
By: President Donald Trump (Office of the President)
[ Detail ] [ PDF ] [ External Link ]

Court Docket(s)
D.D.C.
06/28/2021
1:19-cv-02369-KBJ
IM-DC-0095-9000.pdf | Detail
Source: PACER [Public Access to Court Electronic Records]
General Documents
D.D.C.
08/06/2019
Complaint for Declaratory and Injunctive Relief [ECF# 1]
IM-DC-0095-0001.pdf | Detail
Source: PACER [Public Access to Court Electronic Records]
D.D.C.
08/09/2019
Plaintiffs' Motion for a Preliminary Injunction [ECF# 13]
IM-DC-0095-0002.pdf | Detail
Source: PACER [Public Access to Court Electronic Records]
D.D.C.
08/14/2019
Joint Statement on Scheduling [ECF# 20]
IM-DC-0095-0003.pdf | Detail
Source: PACER [Public Access to Court Electronic Records]
D.D.C.
09/27/2019
Memorandum Opinion [ECF# 40] (405 F.Supp.3d 1)
IM-DC-0095-0004.pdf | WESTLAW| LEXIS | Detail
Source: PACER [Public Access to Court Electronic Records]
D.D.C.
10/19/2020
Second Amended Complaint for Declaratory and Injunctive Relief [ECF# 55]
IM-DC-0095-0005.pdf | Detail
Source: PACER [Public Access to Court Electronic Records]
D.D.C.
10/19/2020
Plaintiffs' Motion for a Preliminary Injunction [ECF# 56]
IM-DC-0095-0006.pdf | Detail
Source: PACER [Public Access to Court Electronic Records]
D.D.C.
02/04/2021
Plaintiffs' Response to Order to Show Cause [ECF# 76]
IM-DC-0095-0007.pdf | Detail
Source: PACER [Public Access to Court Electronic Records]
D.D.C.
06/02/2021
Status Report [ECF# 79]
IM-DC-0095-0008.pdf | Detail
Source: PACER [Public Access to Court Electronic Records]
show all people docs
Judges Jackson, Ketanji Brown (D.D.C., D.C. Circuit) show/hide docs
IM-DC-0095-0004 | IM-DC-0095-9000
Plaintiff's Lawyers Amdur, Spencer E. W. (California) show/hide docs
IM-DC-0095-9000
Balakrishnan, Anand V. (New York) show/hide docs
IM-DC-0095-0001 | IM-DC-0095-0002 | IM-DC-0095-0003 | IM-DC-0095-0005 | IM-DC-0095-0006 | IM-DC-0095-0007 | IM-DC-0095-0008 | IM-DC-0095-9000
Baxley, Adrienne V. (District of Columbia) show/hide docs
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Gelernt, Lee (New York) show/hide docs
IM-DC-0095-0001 | IM-DC-0095-0002 | IM-DC-0095-0003 | IM-DC-0095-0005 | IM-DC-0095-0006 | IM-DC-0095-0007 | IM-DC-0095-0008 | IM-DC-0095-9000
Geltman, Susannah S (New York) show/hide docs
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Jadwat, Omar C. (New York) show/hide docs
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Kang, Stephen B. (California) show/hide docs
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Macleod-Ball, Kristin A. (Massachusetts) show/hide docs
IM-DC-0095-0001 | IM-DC-0095-0002 | IM-DC-0095-0003 | IM-DC-0095-0005 | IM-DC-0095-0006 | IM-DC-0095-0007 | IM-DC-0095-0008 | IM-DC-0095-9000
Michelman, Scott (District of Columbia) show/hide docs
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Newell, Jennifer Chang (California) show/hide docs
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Perez, Celso Javier (New York) show/hide docs
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Polster, Joshua (New York) show/hide docs
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Realmuto, Trina (Massachusetts) show/hide docs
IM-DC-0095-0001 | IM-DC-0095-0002 | IM-DC-0095-0003 | IM-DC-0095-0005 | IM-DC-0095-0006 | IM-DC-0095-0007 | IM-DC-0095-0008 | IM-DC-0095-9000
Spitzer, Arthur (District of Columbia) show/hide docs
IM-DC-0095-0001 | IM-DC-0095-0002 | IM-DC-0095-0003 | IM-DC-0095-0005 | IM-DC-0095-0006 | IM-DC-0095-0007 | IM-DC-0095-0008 | IM-DC-0095-9000
Tan, Michael K. T. (New York) show/hide docs
IM-DC-0095-9000
Veroff, Julie Michelle (California) show/hide docs
IM-DC-0095-0001 | IM-DC-0095-0002 | IM-DC-0095-0003 | IM-DC-0095-0005 | IM-DC-0095-0006 | IM-DC-0095-0007 | IM-DC-0095-0008
Walters, Karolina Joanna (District of Columbia) show/hide docs
IM-DC-0095-0001 | IM-DC-0095-0002 | IM-DC-0095-0003 | IM-DC-0095-0005 | IM-DC-0095-0006 | IM-DC-0095-0007 | IM-DC-0095-0008 | IM-DC-0095-9000
Youngwood, Jonathan K. (New York) show/hide docs
IM-DC-0095-0001 | IM-DC-0095-0002 | IM-DC-0095-0003 | IM-DC-0095-0005 | IM-DC-0095-0006 | IM-DC-0095-0007 | IM-DC-0095-0008 | IM-DC-0095-9000
Defendant's Lawyers Cutri-Kohart, Rebecca (District of Columbia) show/hide docs
IM-DC-0095-9000
Gray, Kathryne M. (District of Columbia) show/hide docs
IM-DC-0095-0003 | IM-DC-0095-9000
Hunt, Joseph H. (District of Columbia) show/hide docs
IM-DC-0095-0003
Peachey, William Charles (District of Columbia) show/hide docs
IM-DC-0095-0003
Ramkumar, Archith (District of Columbia) show/hide docs
IM-DC-0095-0003 | IM-DC-0095-9000
Reuveni, Erez (District of Columbia) show/hide docs
IM-DC-0095-0003 | IM-DC-0095-9000
Other Lawyers Faer, Laura Lynne (California) show/hide docs
IM-DC-0095-9000
Gorod, Brianne J. (District of Columbia) show/hide docs
IM-DC-0095-9000

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