NYCLA Rule of Law Task Force Commends D.C. Court’s Deportation Stay

In 1996, Congress enacted policies for the expedited removal from the United States of certain non-citizens. Those policies authorized fast-track removal proceedings run by an immigration officer, not a judge, in which the non-citizen has no right to obtain counsel, to review evidence against them, to cross-examine witnesses, to a neutral fact-finder, or to seek judicial review. Through these proceedings, an individual may be removed from the country in a matter of days or even hours. But the expedited removal policies applied only to a limited class of non-citizens – only to non-citizens who were arriving in the U.S. illegally, who were apprehended within 100 air miles of any U.S. international land border and who entered within the last 14 days, or had arrived in the US by sea within the last two years. These rules are consistent with the longstanding doctrine that only non-citizens “who have once passed through our gates” are entitled to the full range of due process protections under our Constitution. Shaughnessy v. United States ex rel. Mezei, 345 U.S. 206, 212 (1953) and Mathews v. Diaz, 426 U.S. 67, 77 (1976)

In January 2025, under the authority of a Department of Homeland Security notice and memorandum, the Administration greatly expanded the expedited removal regime. It extended the threat of expedited removal to non-citizens who have been in the US for as long as two years and who may be found anywhere in the country. In this way, persons who are not criminals, and have become part of the fabric of American life, have been arrested while walking the streets, driving their cars, working at their jobs, and pursuing asylum proceedings at a courthouse.  Then they have been deported almost immediately. Court Opinion at 11-12, 14, and 25

On August 29, 2025, the U.S. District Court for the District of Columbia applied the due process provisions of the Fifth Amendment to our Constitution to issue an order staying the enforcement of the new policies and procedures for expedited removal.

The Rule of Law Task of the New York County Lawyers Association applauds this order and the court’s September 5, 2025 order denying the Administration’s motion to stay the August 29 order pending appeal of the decision. These court actions remove for now the threat of expedited deportation without due process for the many non-citizens who have become valued members of our communities, as well as for citizens who may also be mistakenly deported under these policies and procedures. 

The court recognized that under the Fifth Amendment to our Constitution, no one may be deprived of their liberty without due process of law. Those who are exposed to these new expedited removal proceedings are as entitled to these constitutional protections as are US citizens. The new expedited removal proceedings threaten the right of these persons and US citizens not to be improperly deprived of their liberty. Court Opinion, at 20-26. In fact, as the court observed, id., at 2-3, the Administration’s policy on expedited removal threatens the Constitutional rights of all Americans. If that policy is enforced, then

not only non-citizens, but everyone would be at risk. The Government could accuse you of entering unlawfully, relegate you to a bare-bones proceeding where it would “prove” your unlawful entry, and then immediately remove you. By merely accusing you of entering unlawfully, the Government would deprive you of any meaningful opportunity to disprove its allegations. Fortunately, that is not the law.

The court also recognized the grim fact that persons newly threatened with expedited removal, and potentially wrongful deportation, run the risk of the severe and irreparable harm (the standard required to obtain the stay that the court granted under Section 705 of the Administrative Procedures Act). If detained, and even if not deported, they will be separated from their families. If deported, they could be persecuted or killed, and almost certainly will be trapped in a foreign country with little ability to return. The court then rightly concluded, id. at 43, “the injury [the plaintiffs] face [from application of the new expedited removal procedures] is a ‘threatened invasion of [their] constitutional right’ to due process, and after removal there is little possibility that the Court can order the Government to provide them with the process they were denied.”

This Administration’s immigration enforcement project demonstrates a pronounced cruelty towards non-citizens – images of detainees shackled in their underwear in steel cages; parents ripped away from crying children; anonymous masked agents smashing car windows and beating defenseless people in the street; mass round-ups of retail, factory, construction, and farm workers at their job sites. The court stay of the newly adopted expedited removals may slow, at least for the moment, the onslaught against the Rule of Law, and it reminds us that all of us are endangered if the most vulnerable among us are deprived of the rights, liberties, and freedoms provided by our Constitution. That is what due process is supposed to protect.

About the New York County Lawyers Association
The New York County Lawyers Association (www.nycla.org) was founded in 1908 as one of the first major bar associations in the country that admitted members without regard to race, ethnicity, religion, or gender. Since its inception, it has pioneered some of the most far-reaching and tangible reforms in American jurisprudence and has continuously played an active role in legal developments and public policy.

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