President Donald Trump speaks as he visits the Lincoln Memorial Reflecting Pool to see the new blue protective coating being applied as part of a renovation project, Thursday, May 7, 2026, in Washington, as Homeland Security Secretary Markwayne Mullin listens (AP Photo/Mark Schiefelbein).
The Trump administration can continue using a fast-track deportation procedure for certain immigrants living anywhere in the country, a D.C.-based federal court of appeals ruled on Tuesday.
The expedited removal mechanism in question has long been used to quickly deport immigrants who arrive at or near the border – without giving an individual a chance to appear before an immigration judge.
In January 2025, the government asserted the authority to use the removal power on immigrants well beyond the nation's borders.
In August 2025, U.S. District Judge Jia M. Cobb, a Joe Biden appointee, nixed the expanded use of the statutory power by opining that "everyone would be at risk" of losing due process rights. The trial court judge further warned that 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."
Those due process concerns did not hold up before the U.S. Court of Appeals for the District of Columbia Circuit.
In a somewhat fractured 2-1 opinion penned by Circuit Judge Justin R. Walker, a Trump appointee, the appellate court found the expansion of the expedited removal power "does not" violate due process.
To hear the majority tell it, immigrants subjected to expedited removal receive adequate formal procedures before being deported.
"Start with notice," the opinion reads. "The expedited-removal process provides notice that the individual is being placed in removal proceedings and is subject to removal for inadmissibility – specifically, for lacking valid entry documents or for fraud."
Such notices are detailed and instruct immigration agents to highlight why someone is being deported, the opinion notes. Moreover, immigrants who receive notice are given an "opportunity to respond" by offering objections within "a reasonable time."
The court says this is enough process, based on how the Make the Road immigrant advocacy group fashioned its legal challenge.
"With its due-process claim, Make the Road challenges only the 'written policy directive[s]' and the procedures they incorporate," the opinion goes on. "Because Make the Road has not shown that those directives and procedures violate due process, its claim fails."
But the pro-immigrant group offered a secondary argument about formal notice – saying it was incumbent on the Department of Homeland Security (DHS) to advise prospective deportees about a caveat in federal law that would nullify expedited removal.
That is, an immigrant who can show they have had a continuous presence in the United States for two years or more is not subject to expedited removal. Make the Road said the new policy violated due process for failing to include such information in the notice provided to immigrants.
The court rejected that argument out of hand.
From the opinion, at length:
We disagree. 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 defenses 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. If due process requires the government to inform individuals of the two-year continuous-presence rule, it presumably also requires informing them of every other basis for contesting expedited removal.
The opinion also clarifies that while each immigrant may not see an immigration judge when faced with expedited removal, that does not mean the process lacks oversight.
"[T]he district court criticized the absence of a neutral adjudicator at the initial screening," the opinion continues. "But due process does not require a neutral adjudicator at every stage of a multi-step administrative process — as many regulated industries know all too well."
The majority explains – while chiding the group for the oversight issue, which has nothing to do with the written notices – that, in fact, the administration's process could still include a form of review.
"Congress assigned credible-fear interviews to asylum officers, and de novo review of negative determinations to immigration judges," the opinion goes on. "The availability of immigration-judge review provides the neutral check needed to satisfy due process."
While the D.C. Circuit's ruling does not create a circuit split, conditions are ripe for one in the near future – and would position the issue for ultimate consideration by the U.S. Supreme Court.
Other district courts in other jurisdictions have almost uniformly moved to cabin increased immigration powers exerted by the Trump administration – and relitigating the issue before another district court in a friendlier circuit might result in another nationwide pause.
The most likely course of action for Make the Road in the immediate future is requesting an en banc review, asking the full D.C. court to hear the case.
Comments