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In other words, without regard to Congress's intent to vest an agency with unreviewable discretion to make a substantive decision, it can also intend for the APA to apply to constrain an agency's decision making process with respect to that entirely discretionary judgment call, and when it does, an agency that fails to follow the mandated process risks having its policy decision "held unlawful and set aside" under the APA. 5 U.S.C. § 706(2).
Prior to July 23, 2019, the Department of Homeland Security ("DHS") had authorized expedited removal with respect to undocumented non-citizens who arrived in the United States by land only if such persons were encountered near the border and had been in the country for no longer than 14 days. In a "Notice" that DHS published in the Federal Register on July 23, 2019 (more than two and half years after President Donald Trump issued an executive order that demanded that DHS expand its established expedited removal practices), the agency instantly authorized line immigration-enforcement agents to apply expedited removal to non-citizens encountered anywhere in the United States for up to two years after the non-citizen arrived in the United States, effective immediately. This abrupt change in the official policies that govern DHS's deportation practices is the subject of the legal claims that have been presented to the Court in this case. Three immigrant-rights organizations—Make the Road New York, La Union Del Pueblo Entero ("LUPE"), and WeCount! (collectively, "Plaintiffs")—have filed the instant lawsuit against DHS, its Secretary, and other agency officials (collectively, "DHS" or "Defendants"). Plaintiffs alleged, among other things, that DHS's July 23rd Notice violated the Administrative Procedure Act ("APA"), because the agency did not engage in notice and comment rulemaking prior to issuing the July 23rd Notice, and also because DHS failed to take the established flaws in the preexisting expedited removal system into account before it reached the conclusion that the expedited removal process should be applied to a broader category of non-citizens. Before the Court at present is a motion for a preliminary injunction that Plaintiffs have filed "to prevent severe and irreparable harm" to their members while the parties litigate the myriad legal issues that this legal action raises.
Did Congress intend to commit implementation of the expedited removal process it authorized entirely to agency discretion?
The Court found that Plaintiffs' motion for a preliminary injunction must be granted and therefore, Defendants will be preliminary enjoined from enforcing the policy change that Acting DHS Secretary McAleenan implemented with the July 23rd Notice, pending the outcome of the litigation before this Court, as set forth in the accompanying Order. Consistent with the language of the APA, the Federal Rules of Civil Procedure, and established constitutional norms, the Court's preliminary injunction treats the expanded expedited removal rule laid out in DHS's July 23rd Notice as void ab initio during the pendency of this action, based on the Court's preliminary finding that Plaintiffs are likely to be successful on the merits of their APA claims; that Plaintiffs' members would be irreparably harmed by the challenged agency action in the absence of a preliminary injunction; and that both the public interest and the balance of the harms weigh in favor of the issuance of a preliminary injunction. Consequently, DHS is prohibited from applying the expanded expedited removal policy to anyone to whom it would apply, while this action proceeds, until further Order of the Court. The Court found that without regard to Congress's intent to vest an agency with unreviewable discretion to make a substantive decision, it can also intend for the APA to apply to constrain an agency's decision making process with respect to that entirely discretionary judgment call, and when it does, an agency that fails to follow the mandated process risks having its policy decision "held unlawful and set aside" under the APA. 5 U.S.C. § 706(2).