On November 22, the D.C. Circuit issued a ruling that cuts directly into the center of the administration’s interior immigration crackdown.
The case is Make the Road New York v. Noem, and the question is simple:
Can DHS use Expedited Removal anywhere in the United States without giving people a real chance to show they’ve lived here long enough to avoid it?
For months, the administration has argued that its expanded use of Expedited Removal is lawful, efficient, and necessary. The record the government submitted to the courts tells a very different story — and the judges took notice.
What follows is a plain-language breakdown of what Expedited Removal is, how DHS expanded it this year, what the courts found in the government’s own paperwork, and what this ruling means for families across the country.
What Expedited Removal Actually Is
Expedited Removal is a fast-track deportation tool Congress created in 1996.
It allows DHS to deport certain migrants without a hearing before an immigration judge — but only under very specific circumstances:
Under federal law, Expedited Removal can only be used on:
People who entered unlawfully,
Who have been in the U.S. for less than two years,
And who cannot affirmatively show that they meet or exceed that two-year mark.
For nearly two decades, DHS applied Expedited Removal in a narrow way: only at the border, within 100 miles of the border, or for certain arrivals by sea.
The logic was simple: presence determinations are complicated. Proving two years in the country often requires documents, witnesses, children’s school records, leases, medical files, bank records, or even affidavits — all things that cannot be reviewed inside a holding cell in a matter of minutes.
The courts consistently accepted this limited approach.
That all changed in January.
How DHS Changed the Policy
On January 21, 2025, DHS issued what it called the Expansion Order. It did something no administration had ever attempted:
It extended Expedited Removal across the entire United States.
Anyone arrested anywhere — in New York, Chicago, Dallas, Atlanta, Los Angeles, St. Louis, and beyond — could be placed into Expedited Removal unless they could instantly prove two years of continuous presence.
Two days later, DHS issued internal instructions telling officers to consider Expedited Removal for “any alien… amenable to expedited removal.”
This expansion wasn’t theoretical. DHS immediately began using it.
How This Has Been Playing Out in the Real World
The court’s opinion pulls from sworn declarations, government filings, and DHS’s own documents. Here’s what it shows:
▪ PEOPLE WERE REMOVED IN HOURS
The judges cite findings showing that individuals placed in Expedited Removal were deported “within a few days, if not hours.”
▪ OFFICERS NEVER ASKED THE KEY QUESTION
The key legal requirement is whether the person has been here two years. Yet the court notes:
Officers “do not ask if the individual has been present… for two or more years.”
Instead, officers only asked if the person feared harm if deported — which is unrelated to whether they are even eligible for Expedited Removal in the first place.
▪ NO CHANCE TO PROVE ANYTHING
The opinion explains that people are not given an opportunity to gather documents or show evidence of long-term presence.
▪ WORKPLACE RAIDS & COURTHOUSE ARRESTS
DHS wasn’t just making roadside arrests. The record shows a coordinated enforcement campaign:
Workplace raids described as the new phase of the immigration crackdown.
Courthouse arrests: Officers terminated immigrants’ active court cases without warning, then arrested them outside the courtroom and placed them into Expedited Removal.
▪ A GOAL OF 3,000 ARRESTS PER DAY
From DHS’s own numbers:
The government set a goal of “3,000 immigration arrests each day.”
▪ WRONGFUL REMOVALS WERE ALREADY HAPPENING
The court highlights the strongest evidence in the entire record:
Two individuals with more than two years of continuous presence “were summarily removed anyway.”
This proves the risk wasn’t hypothetical — it was happening.
▪ PEOPLE WERE NOT ALLOWED TO CALL ANYONE
One pair of plaintiffs, a mother and son, were:
“not allowed to make any calls or contact an attorney.”
They were issued removal orders by 9 a.m. the next day and sent to a border bridge.
The Due Process Problem
Everything in this case turns on a simple idea: you can’t deport someone using Expedited Removal unless you first determine that they are legally eligible for Expedited Removal.
That requires a process.
The court found that DHS had no process at all:
No meaningful notice
No inquiry into presence
No time to gather documents
No mechanism for officers to consider evidence
No safeguard against error
The district court described the system as “woefully inadequate.”
The appeals court agreed.
What the Appeals Court Actually Ruled
The D.C. Circuit denied the government’s request to restart the nationwide expansion.
What stays blocked:
The Expansion Order itself
The January 23 guidance
The use of Expedited Removal anywhere in the interior without new procedures
The courthouse-arrest pathway
The workplace-raid pathway
The rapid removal timelines
The use of ER on people who may have two years’ presence
What DHS is allowed to continue:
Using its existing credible-fear interview procedures, but only for individuals who are already properly in Expedited Removal.
This is the only part of the district court’s order the D.C. Circuit put on hold.
Everything else remains frozen.
The Dissent: A Warning Shot Aimed at the Supreme Court
While the majority kept nearly all of the district court’s stay in place, the dissent by Judge Rao serves a different purpose. It reads less like a disagreement with her colleagues and more like an invitation to the Supreme Court to take this case.
Her opinion argues that the district court had no authority to block the expansion of Expedited Removal, and she frames the stay as a breach of the judiciary’s limits:
“Observing the limits on judicial authority… is required by a judge’s oath to follow the law.”
She accuses the district court of “ducking and weaving” past the jurisdictional boundaries set by IIRIRA and the Administrative Procedure Act, concluding that, because the district court acted outside those limits, the government should have been allowed to continue carrying out expedited removals immediately.
Then the dissent becomes even more pointed.
Rao writes:
“I emphasize for purposes of further review by our en banc court or the Supreme Court that IIRIRA is best read to strip jurisdiction over designation decisions altogether.”
This is not subtle.
It is a written roadmap for the next stage of litigation.
Her argument is that federal courts may not have jurisdiction at all to review DHS’s decision to expand Expedited Removal — a position that would remove judicial oversight from one of the most sweeping immigration powers the government can exercise. She acknowledges that this reading is “foreclosed by Make the Road I,” meaning existing D.C. Circuit precedent blocks her from applying it here. But she resurrects the argument anyway, not for the panel, but for a higher court.
It’s exactly the kind of dissent that invites a cert petition.
If the Supreme Court were to adopt her view, DHS could expand Expedited Removal across the entire interior of the United States with almost no legal mechanism for organizations like Make the Road to challenge the policy. And that’s the larger context of this case: the administration’s strategy hinges not only on the tools it uses, but on whether anyone can meaningfully challenge those tools in federal court.
The majority kept the stay in place.
The dissent signals the next battleground.
To Note: The legal landscape isn’t shifting in one direction at a time. While this case blocked DHS from accelerating removals through Expedited Removal, the new BIA rulings expand who can be detained or removed in the first place. They hit many of the same families and long-term residents from a different angle.
I broke that down here:
Why This Case Matters
This ruling directly affects hundreds of thousands of people:
Long-settled immigrants who have been here more than two years
Parents with school-age children
Workers targeted in workplace raids
People who were already in the middle of regular immigration court cases
Anyone mistakenly caught up in a fast-track system that never checked eligibility
And it matters for an even bigger reason:
The government attempted to use the fastest, least protected form of deportation far from the border — without building any of the safeguards that the law requires.
The courts are now forcing DHS back to the starting point. If the administration wants to use Expedited Removal in the interior, it will need to create a process that actually determines who qualifies for it. And it will need to give people enough time to show they have lived here long enough to stay in regular court.
Until then, the system remains blocked.
I'm glad you mentioned the BIA cases. I don't know how that works with this one. It's all so unfair.