MAKE THE ROAD NEW YORK v. WOLF

No. 19-5298.

962 F.3d 612 (2020)

MAKE THE ROAD NEW YORK, et al., Appellees, v. Chad F. WOLF, Acting Secretary of the Department of Homeland Security, in his official capacity, et al., Appellants.

United States Court of Appeals, District of Columbia Circuit.

Decided June 23, 2020.


Attorney(s) appearing for the Case

Scott G. Stewart , Deputy Assistant Attorney General, U.S. Department of Justice, argued the cause for appellants. With him on the briefs was Erez Reuveni , Assistant Director, U.S. Department of Justice.

Michael M. Hethmon was on the brief for amicus curiae Immigration Reform Law Institute in support of appellants.

Anand Balakrishnan argued the cause for appellees. With him on the brief were Omar C. Jadwat , Michael Tan , Celso Perez , Trina Realmuto , Kristin Macleod-Ball , Karolina J. Walters , Stephen B. Kang , Julie Veroff , Arthur B. Spitzer , Scott Michelman , Jonathan K. Youngwood , Susannah S. Geltman , Joshua Polster , and Adrienne V. Baxley .

Xavier Becerra , Attorney General, Office of the Attorney General for the State of California, Antonette Benita Cordero , Laura Faer , Vilma Palma-Solana , Anthony Seferian , Deputy Attorneys General, Office of the Attorney General for the State of California, William Tong , Attorney General, Office of the Attorney General for the State of Connecticut, Clare Kindall , Solicitor General for the State of Connecticut, Clare E. Connors , Attorney General, Office of the Attorney General for the State of Hawaii, Kimberly Tsumoto Guidry , Solicitor General for the State of Hawaii, Aaron M. Frey , Attorney General, Office of the Attorney General for the State of Maine, Laura E. Jensen , Assistant Attorney General, Office of the Attorney General for the State of Maine, Philip J. Weiser , Attorney General, Office of the Attorney General for the State of Colorado, Eric R. Olson , Solicitor General for the State of Colorado, Kathleen Jennings , Attorney General, Office of the Attorney General for the State of Delaware, Christian Douglas Wright , Director of Impact Litigation, Office of the Attorney General for the State of Delaware, Kwame Raoul , Attorney General, Office of the Attorney General for the State of Illinois, Sarah A. Hunger , Deputy Solicitor General for the State of Illinois, Maura Healey , Attorney General, Office of the Attorney General for the Commonwealth of Massachusetts, Robert E. Toone , Assistant Attorney General, Office of the Attorney General for the Commonwealth of Massachusetts, Keith Ellison , Attorney General, Office of the Attorney General for the State of Minnesota, Kathryn Iverson Landrum , Assistant Attorney General, Office of the Attorney General for the State of Minnesota, Gurbir S. Grewal , Attorney General, Office of the Attorney General for the State of New Jersey, Glenn J. Moramarco , Assistant Attorney General, Office of the Attorney General for the State of New Jersey, Brian E. Frosh , Attorney General, Office of the Attorney General for the State of Maryland, Adam D. Snyder , Deputy Chief of Litigation, Office of the Attorney General for the State of Maryland, Dana Nessel , Attorney General, Office of the Attorney General for the State of Michigan, Fadwa A. Hammoud , Solicitor General for the State of Michigan, Aaron D. Ford , Attorney General, Office of the Attorney General for the State of Nevada, Heidi Parry Stern , Solicitor General for the State of Nevada, Letitia James , Attorney General, Office of the Attorney General for the State of New York, Steven C. Wu , Deputy Solicitor General for the State of New York, Josh Shapiro , Attorney General, Office of the Attorney General for the Commonwealth of Pennsylvania, Aimee D. Thomson , Deputy Attorney General, Office of the Attorney General for the Commonwealth of Pennsylvania, Thomas J. Donovan, Jr. , Attorney General, Office of the Attorney General for the State of Vermont, Benjamin D. Battles , Solicitor General for the State of Vermont, Hector Balderas , Attorney General, Office of the Attorney General for the State of New Mexico, Tania Maestas , Chief Deputy Attorney General, Brian E. McMath , Assistant Attorney General, Office of the Attorney General for the State of New Mexico, Ellen F. Rosenblum , Attorney General, Office of the Attorney General for the State of Oregon, Jona Maukonen , Assistant Attorney General, Office of the Attorney General for the State of Oregon, Peter F. Neronha , Attorney General, Office of the Attorney General for the State of Rhode Island, Adam D. Roach , Special Assistant Attorney General, Office of the Attorney General for the State of Rhode Island, Robert W. Ferguson , Attorney General, Office of the Attorney General for the State of Washington, Noah Guzzo Purcell , Solicitor General for the State of Washington, Mark R. Herring , Attorney General, Office of the Attorney General for the Commonwealth of Virginia, Toby J. Heytens , Solicitor General for the Commonwealth of Virginia, Karl A. Racine , Attorney General, Office of the Attorney General for the District of Columbia, and Loren L. AliKhan , Solicitor General for the District of Columbia, were on the brief for amici curiae The State of California, et al. in support of appellees.

Richard Caldarone , Paul J. Nathanson , and Kenneth L. Wainstein were on the brief for amici curiae The Tahirih Justice Center, et al. in support of appellees.

William J. Trunk and Megan D. Browder were on the brief for amici curiae Former Homeland Security and Immigration Officials in support of appellees.

Before: Millett and Rao, Circuit Judges, and Edwards, Senior Circuit Judge.


Federal law commits to the "sole and unreviewable discretion" of the Secretary of Homeland Security the decision whether to subject certain individuals present in the United States without documentation to "expedited removal." 8 U.S.C. § 1225(b)(1)(A)(iii)(I). In July 2019, the Secretary decided to expand the reach of...

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