Make the Rd. N.Y. v. McAleenan

Make the Rd. N.Y. v. McAleenan

Opinion

 [*8]  MEMORANDUM OPINION

TABLE OF CONTENTS

I. Introduction

II. Background [**3] 

 A. The Immigration And Nationality Act's Expedited Removal Provision

 B. Agency Implementation Of The INA's Expedited Removal Provision

  1. Prior Section 1225(b)(1)(A)(iii) Expedited Removal Designations

  2. Acting DHS Secretary Kevin McAleenan's Notice Of July 23, 2019

 C. Judicial Review Of Legal Claims Regarding Expedited Removal

III. Procedural History

IV. Motions For Preliminary Injunctions In Cases Challenging Agency

Action

V. Analysis

 A. Plaintiffs Have A Likelihood Of Succeeding With Respect To Their

  Administrative Procedure Act ("APA") Claims

   1. Plaintiffs Are Likely To Be Able To Demonstrate That Article III's

   Jurisdictional And Standing Requirements Are Satisfied

   a. It is likely that this Court has subject-matter jurisdiction to

   consider Plaintiffs' APA claims under 28 U.S.C. § 1331

   b. It is likely that Plaintiffs have associational standing

   2. Plaintiffs Are Likely To Be Able To Establish That The APA Provides

   A Cause Of Action For Their Claims That DHS Has Committed Procedural

   Violations

   a. It is unlikely that the INA provides a cause of action for

   Plaintiffs' procedural claims

   b. It is unlikely that the INA commits to agency discretion the

   process by [**4]  which the section 1225(b)(1)(A)(iii) expedited removal

   designation is to be determined

   3. Plaintiffs Are Likely To Succeed On The Merits Of Their APA

   Arguments

   a. The APA requires that agencies seek public comment prior to

   rulemaking, and that they conduct their deliberations so as to

   minimize the risk of reaching arbitrary and capricious conclusions

   b. It is likely that DHS needed to proceed through notice and comment

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