On June 23, 2026 a three-judge panel of the D.C. Circuit voted 2 to 1 to vacate the district court order that had blocked, since August 2025, the expansion of expedited removal to the interior of the country. Judge Walker wrote the majority opinion; Judge Rao concurred in the judgment on separate grounds; Judge Wilkins dissented in part. The case is Make the Road New York v. Mullin, and this site explained the underlying fight in January.
The panel held that the plaintiffs' due process claim fails. That is the whole holding, and it is enough to remove the only barrier that stood between DHS's January 2025 designation and the people it describes.
What the policy is
Expedited removal under INA 235(b)(1) allows an immigration officer to order a person removed without a hearing before a judge and, in most cases, without any appeal. The order carries a five-year bar on return. It has always applied at ports of entry. Since 2004 it also applied to people caught within 100 miles of a land border and within 14 days of arrival. The January 2025 designation extended it to the full extent the statute allows: anyone in the country who was never admitted or paroled, who is inadmissible for lacking documents or for fraud, and who cannot show two years of continuous physical presence.
An officer must state the charges, take a sworn statement and obtain a supervisor's approval. Judicial review is narrow; a habeas petition survives in limited circumstances, chiefly where a citizen or permanent resident has been wrongly swept in.
Who is outside it
Citizens. Permanent residents, who get a hearing before a judge instead. Anyone admitted or paroled, however long ago and whatever happened since. Unaccompanied children. Refugees and asylees. And anyone who can prove two years of continuous presence.
Anyone who expresses a fear of persecution or torture, or an intention to seek asylum, must be referred for a credible fear interview with an asylum officer. A negative finding can be reviewed by a judge within a week; a positive one moves the person into ordinary proceedings.
A pending asylum application or green card application does not by itself take a person out of expedited removal. It has to be raised, with the receipt number, at the first encounter. Fear of return has to be stated separately. These are two different sentences and both have to be said.
What has not happened yet
The panel vacated the stay, but as of this writing the appellate mandate has not issued, and until it does the district court's block remains in place. The plaintiffs may seek rehearing before the full court; the government may ask the panel to make its ruling effective immediately. Either could happen within days. The prudent assumption is that nationwide expedited removal will be in effect before the summer is out, and that the first people to encounter it will be the ones who assumed it was still blocked.
The evidence
The burden of proving two years is on the individual, on the spot. Every person without status who has been here longer than that should be able to hand an officer a folder within minutes. What belongs in it:
- tax returns and pay stubs, the older the better
- leases, mortgage statements, utility bills
- school enrollment records for children, medical records, vaccination cards
- bank statements, insurance documents, dated receipts and mail
Two copies, one at home and one with a person outside the home who can produce it. Family members and counsel should know where it is. The process can move within days; a record that takes a week to assemble is a record that does not exist.
The words
"I am afraid to return to my country." That sentence, said clearly and early, triggers the credible fear process and stops the fast track. "I have a pending application, here is the receipt number." That one puts the officer on notice of a case that expedited removal would cut off. Ask for a lawyer. Do not sign what you do not understand.
What to do
- Assemble the two-year file now, not when the mandate issues.
- Tell the people around you what the file is and where it is.
- If you have any pending application, carry the receipt notice.
- Rehearse the two sentences.
The district court thought the policy likely violated due process. Two judges of the appeals court think it does not. The disagreement will continue in the courts. Outside them, the practical question has become only when, and the answer is soon.