The US Court of Appeals for the District of Columbia Circuit has ruled, in a 2-1 decision handed down on 23 June 2026, that the Trump administration’s expanded use of expedited removal does not violate due process, clearing the way for fast-track deportations of immigrants well beyond the nation’s borders. The D.C. Circuit opinion in case No. 25-5320, authored by Circuit Judge Justin R. Walker, resolved the expedited removal due process question for now, though further litigation appears likely.
Background: From the Border to the Interior
Expedited removal has long allowed immigration officers to deport individuals who arrive at or near the border without affording them a hearing before an immigration judge. The mechanism targets those found inadmissible under the Immigration and Nationality Act for lacking valid entry documents or for fraud or wilful misrepresentation.
A Federal Register notice published on 24 January 2025 formally extended that power to cover, with limited exceptions, any inadmissible alien anywhere in the country who cannot affirmatively demonstrate two years of continuous physical presence. An ICE implementation memorandum issued on 28 February 2025 by Acting ICE Director Caleb Vitello directed that the designation apply regardless of whether a noncitizen had entered the country before the new policy was announced.
The challenge was filed on 22 January 2025, the day after President Trump’s inauguration, by Make the Road New York together with the ACLU and the New York Civil Liberties Union. US District Judge Jia M. Cobb, a Biden appointee, struck down the expansion in August 2025, warning that ‘everyone would be at risk’ of losing due process rights. The government appealed on 2 September 2025 and sought a stay, which a different panel of the D.C. Circuit denied on 22 November 2025 in opinions running to 100 pages. Oral argument on the merits was heard on 9 December 2025.
The Expedited Removal Due Process Ruling Explained
Judge Walker’s majority opinion, joined in relevant parts by Circuit Judges Wilkins and Rao, held that the written directives governing expedited removal satisfy due process on their face. The court reasoned that adequate notice is provided: immigration officers must inform individuals that they are being placed in removal proceedings and identify the specific grounds for inadmissibility, and recipients are given a reasonable time to respond.
Make the Road had pressed a secondary argument: that due process required DHS to advise prospective deportees of the two-year continuous-presence exemption, which, if established, would remove a person from the scope of expedited removal. The court dismissed that contention squarely.
‘We disagree,’ the opinion states. ‘Make the Road has identified no authority (and we are aware of none) holding that due process requires the government to instruct individuals on available defences or exemptions. The constitutional requirement is notice of the action the government is taking and the grounds for it, plus an opportunity to respond. It is not a requirement that the government explain how the individual might prevail… Make the Road’s contrary reasoning would require immigration officers to provide what amounts to legal advice.’
On the absence of an immigration judge at the initial screening stage, the majority held that due process does not demand a neutral adjudicator at every step of a multi-stage administrative process. Credible-fear interviews conducted by asylum officers, together with de novo review of negative determinations by immigration judges, were sufficient, in the court’s view, to supply the neutral check the Constitution requires.
The Department of Justice had previously characterised Judge Cobb’s ruling as an ‘egregious error’ that deprived the administration of an ‘essential tool’ to deport potentially millions of people, according to NPR’s reporting on Justice Department court filings.
Courthouse News reported that the majority acknowledged instances where immigrants present for more than two years had been wrongly subjected to expedited removal, but attributed those errors to individual immigration officers rather than to the policy itself.
What Comes Next
The ruling does not settle the wider legal picture. A Maryland Attorney General amicus brief filed in November 2025 noted that in states along the south-west border, between 45% and 58% of those without immigration authorisation have been present for more than 20 years, underlining the practical stakes of accurately identifying who qualifies for the two-year exemption.
The most immediate procedural step available to Make the Road is a petition for en banc rehearing before the full D.C. Circuit. District courts in other circuits have broadly moved to restrain expanded immigration enforcement powers, meaning a conflicting ruling elsewhere could create a circuit split and place the question before the Supreme Court of the United Kingdom’s American counterpart. Subject to any such onward challenge, the administration may now apply expedited removal nationally under the January 2025 Federal Register designation.
