Cluster 4762946

And Make the Road has identified nothing in them that takes away what the governing statute and regulations promise — an opportunity for consultation if it can occur “at no expense to the Government” and will not unreasonably delay the highly expedited process. 8 U.S.C. § 1225 (b)(1)(B)(iv); see also 8 C.F.R. § 208.30 (d); cf. Make the Road New York v. Wolf, 962 F.3d 612, 619 (D.C.

For ease of reference, this opinion generally refers to that category as individuals who have been continuously present for at least two years, since the central issue in this case is whether the Department’s current procedures afford them a reasonable opportunity to make the affirmative showing of continuous presence on which the exception is predicated. 2 “Expedited removal lives up to its name.” Make the Road N.Y. v. Wolf, 962 F.3d 612, 619 (D.C.

N.Y. v. Wolf, 962 F.3d 612, 624 (D.C.

N.Y. v. Wolf, 962 F.3d 612, 635 (D.C.

N.Y. v. Wolf, 962 F.3d 612, 635 (D.C.

Id.; see also Make The Road N.Y. v. Wolf, 962 F.3d 612, 632 (D.C.

N.Y. v. Wolf, 962 F.3d 612, 635 (D.C.

Review of Agency Process: Notice & Comment Rulemaking Although the Secretary’s rescission of Subpart D is substantively an unreviewable agency decision, that does not insulate the Secretary’s decision from procedural judicial review.7 See Make the Road N.Y. v. Wolf, 962 F.3d 612, 634 (D.C.

N.Y. v. Wolf, 962 F.3d 612, 634 (D.C.

In Kucana, the Supreme Court found the substantive “character” of the decisions made unreviewable under clause 1252(a)(2)(B)(i) to be “significant,” and reasoned that the types of discretionary decisions shielded under clause 1252(a)(2)(B)(ii) are “of a like kind.” Id. at 248 ; cf. Make the Road N.Y. v. Wolf, 962 F.3d 612, 628-34 (D.C.

N.Y. v. 3 Wolf, 962 F.3d 612, 623 (D.C.

N.Y. v. Wolf, 962 F.3d 612, 623 (D.C.

N.Y. v. Wolf, 962 F.3d 612, 619 (D.C.

N.Y. v. Wolf, 962 F.3d 612, 623 (D.C.

“Congress created the process of ‘expedited removal’ as part of the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 (‘IIRIRA’).” Make the Road N.Y. v. Wolf, 962 F.3d 612, 618 (D.C.

This presumption applies even when a court is “determining the scope of statutory provisions specifically designed to limit judicial review.” Make the Road N.Y. v. Wolf, 962 F.3d 612, 624 (D.C.

New York v. Wolf, 962 F.3d 612, 618-19 (D.C.Cir. 2020).

New York, 962 F.3d at 632 (cleaned up). 18 And so it is subject to APA review.

N.Y. v. Wolf, 962 F.3d 612, 631 (D.C.

N.Y. v. Wolf, 962 F.3d 612, 619 (D.C.

N.Y. v. Wolf, 962 F.3d 612, 635 (D.C.

N.Y. v. Wolf, 962 F.3d 612, 630 (D.C.

New York v. Wolf, 962 F.3d 612, 619 (D.C.

In contrast, the second mechanism, expedited removal proceedings, is a “streamlined” removal process that “lives up to its name.” Make the Road New York v. Wolf, 962 F.3d 612, 619 (D.C.

This presumption applies even when a court is “determining the scope of statutory provisions specifically designed to limit judicial review.” Make the Road N.Y. v. Wolf, 962 F.3d 612, 624 (D.C.

N.Y. v. Wolf, 962 F.3d 612, 618 (D.C.

“The process is scarcely more involved” if the noncitizen “assert[s] an intention to apply for asylum or a fear of persecution.” Make the Rd., 962 F.3d at 619.

New York v. Wolf, 962 F.3d 612, 619 (D.C.

New York v. Wolf, 962 F.3d 612, 619 (D.C.

N.Y., 962 F.3d at 634.

Formal and Expedited Removal Procedures Before 1996, “an individual in the United States without proper documentation could be considered ‘deportable,’ 8 U.S.C. § 1251 (a) (1995), if, among other things, that person had ‘entered the United States without inspection or at any time or place other than as designated by the Attorney General[,]’ see id. § 1251(a)(1)(B) (1995).” Make The Road New York v. Wolf, 962 F.3d 612, 618 (D.C.

New York v. Wolf, 962 F.3d 612, 635 (2020); accord Alli v. Decker, 650 F.3d 1007, 1013 (3d Cir. 2011); Nielsen v. Preap, 586 U.S. 392, 402 (2019) (plurality opinion) (explaining “whether the [district] court had jurisdiction to enter . . . [a class-wide] injunction is irrelevant because [it] had jurisdiction to entertain the plaintiffs’ request for declaratory relief” (cleaned up)).

N.Y. v. Wolf, 962 F.3d 612, 618 (D.C.

N.Y. v. Wolf, 962 F.3d 612, 630 (D.C.

N.Y. v. Wolf, 962 F.3d 612, 623 (D.C.

N.Y. v. Wolf, 962 F.3d 612, 623 (D.C.

N.Y. v. Wolf, 962 F.3d 612, 631 (D.C.

N.Y. v. Wolf, 962 F.3d 612, 623 (D.C.

New York v. Wolf, 962 F.3d 612, 624 (D.C.

That “exception” is “gen- erally” limited to actions in “areas traditionally committed to agency discretion.” Dep’t of Com- merce, 139 S. Ct. at 2568. 5 But it also applies if the statutory text “heralds Congress's judgment 5 Examples include “a decision not to institute enforcement proceedings,” Dep’t of Com- merce, 139 S. Ct. at 2568 (citing Heckler v. Chaney, 47 U.S. 821 , 831–32 (1985)), “a decision by an intelligence agency to terminate an employee in the interest of na…

N.Y. v. Wolf, 962 F.3d 612, 632 (D.C.

N.Y. v. Wolf, 962 F.3d 612, 623 (D.C.

And Section 1252(e)(5) limits the scope of a court’s inquiry “to whether [a removal] order in fact was issued and whether it relates to petitioner,” stating “[t]here shall be no review of whether the alien is actually inadmissible or entitled to any relief from removal.” 8 U.S.C. § 1252 (e)(4); cf Make the Road N.Y. v. Wolf, 962 F.3d 612, 643 (Rao, J., dissenting) (interpreting Section 1252(e) to apply to “limited review only of individual determinations”).

See Brito v. Garland, 22 F. 4th 240 , 250–252 (CA1 2021); Make The Road New York v. Wolf, 962 F. 3d 612, 635 (CADC 2020); Alli v. Decker, 650 F. 3d 1007 , 1010–1013 (CA3 2011); Rodriguez v. Hayes, 591 F. 3d 1105 , 1119– 1120 (CA9 2010).

See Brito v. Garland, 22 F. 4th 240 , 250–252 (CA1 2021); Make The Road New York v. Wolf, 962 F. 3d 612, 635 (CADC 2020); Alli v. Decker, 650 F. 3d 1007 , 1010–1013 (CA3 2011); Rodriguez v. Hayes, 591 F. 3d 1105 , 1119– 1120 (CA9 2010).

Make the Road New York v. Wolf, 962 F.3d 612, 623 (D.C.

Co., 463 U.S. 29, 43 (1983); Make the Road N.Y. v. Wolf, 962 F.3d 612, 634 (D.C.

We start from “the presumption favoring judicial review of administrative action.” Make the Road New York v. Wolf, 962 F.3d 612, 623 (D.C.

“The APA exception for actions committed to agency discretion by law is read ‘quite narrowly, restricting it to those rare circumstances where the relevant statute is drawn so that a court would have no meaningful standard against which to judge the agency’s exercise of discretion.’” Make the Road New York v. Wolf, 962 F.3d 612, 631 (D.C.

A robust notice-and- comment process serves the “central purpose[s]” of “subject[ing] agency decisionmaking to public input . . .[,] obligat[ing] the agency to consider and respond to the material comments and concerns that are voiced,” and “ensur[ing] the parties develop a record for judicial review.” Make the Road N.Y. v. Wolf, 962 F.3d 612, 634 (D.C.