Judge Neomi Rao, U.S. Court of Appeals for the D.C. Circuit (Photo: Diego M. Radzinschi/ALM)

The U.S. Court of Appeals for the D.C. Circuit threw out a preliminary injunction blocking the Trump administration's expedited removal policy for undocumented immigrants, finding the secretary of Homeland Security had authority under administrative law to vastly expand the procedures.

In a divided ruling Tuesday, Judges Patricia Millett and Senior Judge Harry Edwards ruled immigration groups challenging the policy could go to court but rejected their claims that administration officials violated the Administrative Procedure Act in changing the policy.

"While establishing jurisdiction gets the associations through the courthouse door, it does not keep them there. They also need a cause of action to prosecute," Millett wrote in the majority opinion. "That is where the associations' APA notice-and-comment and reasoned decisionmaking claims founder."

However, Judge Neomi Rao wrote in a dissenting opinion that the case was blocked from judicial review under immigration law and that District Judge Ketanji Brown Jackson was incorrect in issuing the injunction in the first place.

"Although I generally agree with the majority's conclusion that the expedited removal designation is committed to agency discretion by law, we have an antecedent duty to ensure jurisdiction. Here, the INA unambiguously withholds jurisdiction over plaintiffs' suit to enjoin the Expansion Designation," Rao wrote. "Courts must respect limits on their jurisdiction, particularly in areas such as immigration that implicate power traditionally wielded by the political branches."

The policy, first implemented last year, allows for the quick deportation of undocumented immigrants located anywhere in the country and who entered the U.S. within the past two years without first appearing before an immigration judge. Those measures previously only applied to immigrants within 100 miles of the southern border who had entered the country within the prior two weeks.

In the majority opinion, Millett and Edwards rejected the Justice Department's argument that the lawsuit was foreclosed by immigration law. "While the statutory provisions at issue are complex, straightforward rules of statutory construction knit them together and, at every turn, expressly preserve jurisdiction over challenges like the associations' claims of legal or constitutional error in the Secretary's rules implementing expedited removal," Millett wrote.

The majority opinion pointed to consistent U.S. Supreme Court rulings on "'the presumption of reviewability to immigration statutes,' including the very statute at issue here … and the very subsection on which the dissenting opinion relies." It also highlighted a part of the statute that "specifically provided in the expedited removal context for more traditional judicial review of '[c]hallenges on validity of the system[.]'"

However, Millett wrote the statute also grants the administration the authority to expand the fast-track deportation policy "to the secretary's 'sole and unreviewable discretion,'" the revised policy cannot be challenged under the APA.

In the dissenting opinion, Rao argued the same statute within the Immigration and Nationality Act "expressly bars the courts from reviewing the secretary's discretionary decisions regarding expedited removal. One of the few checks on the independent judiciary comes from Congress's ability to set the jurisdiction of the inferior federal courts."

"Congress could hardly have been clearer in systematically leaving expedited removal designations to the secretary's discretion and then removing discretionary decisions from judicial review," Rao wrote. "The majority ignores a fundamental constitutional limit on the courts in favor of a presumption of recent mint and uncertain grounding."

The objecting judge also took issue with the preliminary injunction issued by Jackson at the district court, arguing those kinds of court orders are similarly blocked under the immigration statute except in cases of individual removal proceedings. "The district court reached an opposite conclusion by relying on a dubious distinction between enjoining the statute and enjoining the Secretary from carrying the statute into operation. If the anti-injunction provision applies only to injunctions restraining the statutory text, it is a nullity, indeed an absurdity, because injunctions run against an officer, not statutory text," Rao wrote. 

"With respect to expedited removal, Congress was crystal clear in conferring designations to the secretary's discretion and barring our review over preenforcement challenges. By disregarding the INA's multi-layered jurisdictional bar, the majority encroaches upon Congress's plenary power over jurisdiction and upon the political branches' authority over immigration. We witness yet another marker on the road to government by injunction," the judge concluded.

In her September opinion issuing the injunction, Jackson slammed the Justice Department's arguments against issuing such an order, writing: "It reeks of bad faith, demonstrates contempt for the authority that the Constitution's framers have vested in the judicial branch, and, ultimately, deprives successful plaintiffs of the full measure of the remedy to which they are entitled."

Millett's majority opinion only briefly touched on injunctions, noting the issue is largely moot in the case due to the rejection of the APA claims. "Of course, to the extent the dissenting opinion implies some jurisdictionally troublesome lack of redressability, then we must dispel that concern. Which is easily done," the judge wrote, saying Jackson had the authority to issue a declaratory judgement in the case.

Jackson's opinion last year and the circuit opinion Tuesday did not touch on the immigration or constitutional claims raised in the lawsuit, meaning those can move forward in district court.