Make The Road New York v. Markwayne Mullin

United States Court of Appeals FOR THE DISTRICT OF COLUMBIA CIRCUIT Argued December 9, 2025 Decided June 23, 2026 No. 25-5320 MAKE THE ROAD NEW YORK, ET AL., APPELLEES v. MARKWAYNE MULLIN, SECRETARY OF THE U.S. DEPARTMENT OF HOMELAND SECURITY, IN HIS OFFICIAL CAPACITY, ET AL., APPELLANTS Appeal from the United States District Court for the District of Columbia (No. 1:25-cv-00190) Drew C. Ensign, Deputy Assistant Attorney General, U.S. Department of Justice, argued the cause for appellants. With him on the briefs were Brett A. Shumate, Assistant Attorney General, Tyler J. Becker, Counsel to the Assistant Attorney General, and Elissa Fudim, Joseph McCarter, and Caroline McGuire, Attorneys. Christopher J. Hajec and Matt A. Crapo were on the brief for amicus curiae Federation for American Immigration Reform in support of defendants-appellants.  2 Anand Balakrishnan argued the cause for appellees. With him on the brief were Morgan Russell, Hannah Steinberg, Michael K.T. Tan, Cody Wofsy, Lucia Goin, Sidra Mahfooz, Omar C. Jadwat, Lee Gelernt, Arthur B. Spitzer, and Aditi Shah. Rob Bonta, Attorney General, Office of the Attorney General for the State of California, Vilma Palma-Solana, Supervising Deputy Attorney General, Kristin K. Mayes, Attorney General, Office of the Attorney General for the State of Arizona, Kathleen Jennings, Attorney General, Office of the Attorney General for the State of Delaware, Anne E. Lopez, Attorney General, Office of the Attorney General for the State of Hawai’i, Aaron M. Frey, Attorney General, Office of the Attorney General for the State of Maine, Andrea Joy Campbell, 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, Philip J. Weiser, Attorney General, Office of the Attorney General for the State of Colorado, William Tong, Attorney General, Office of the Attorney General for the State of Connecticut, Kwame Raoul, Attorney General, Office of the Attorney General for the State of Illinois, Anthony G. Brown, Attorney General, Office of the Attorney General for the State of Maryland, Dana Nessel, Attorney General, Office of the Attorney General for the State of Michigan, Aaron D. Ford, Attorney General, Office of the Attorney General for the State of Nevada, Matthew J. Platkin, Attorney General, Office of the Attorney General for the State of New Jersey, Letitia James, Attorney General, Office of the Attorney General for the State of New York, Charity R. Clark, Attorney General, Office of the Attorney General for the State of Vermont, Brian L. Schwalb, Attorney General, Office of the Attorney General for the District of Columbia, Raul Torrez, Attorney General, Office of the Attorney General for the State of New Mexico,  3 Dan Rayfield, Attorney General, Office of the Attorney General for the State of Oregon, and Nicholas W. Brown, Attorney General, Office of the Attorney General for the State of Washington, were on the brief for amici curiae States of California, et al. in support of appellees. Before: WILKINS, RAO and WALKER, Circuit Judges. Opinion for the Court filed by Circuit Judge WALKER, in which WILKINS, J., joins as to Parts I, II and IV, and in which RAO, J., joins as to Parts I–III, IV.B, and V. Opinion concurring in the judgment by Circuit Judge RAO, in which WALKER, J., joins as to Part II.A. Opinion concurring in part and dissenting in part by Circuit Judge WILKINS. WALKER, Circuit Judge: Thirty years ago, Congress created a new process for deporting illegal aliens. It is called “expedited removal.” Unlike other statutorily required procedures that can take years to complete, expedited removal often takes just a few days. At issue here is the provision allowing the Secretary of Homeland Security to designate certain aliens already in the country for expedited removal. Congress excluded many people from that provision. Any aliens admitted or paroled are excluded, even if they are here illegally. So too is anyone who can prove he has lived here — legally or illegally — for at least two straight years. As for whether to designate other aliens for expedited removal, Congress let the Executive decide. And for many years, while some were designated, others were not. But that  4 changed in January 2025 when the Executive expanded expedited removal to the maximum extent allowed by Congress. The district court stayed the expansion, holding that it likely violated due process. Because it does not, we vacate the stay. I. Background on Expedited Removal A. Statutory Scheme As its name suggests, “expedited removal” authorizes the rapid removal of certain aliens. Subject to various limitations, that generally includes two groups: first, those “arriving in the United States,” 8 U.S.C. § 1225(b)(1)(A)(i); second, those already in the United States who were not admitted or paroled and who cannot show continuous physical presence for at least two years, if the Secretary of Homeland Security so designates. Id. § 1225(b)(1)(A)(iii). The expedited-removal process begins with an inspection by an immigration officer. If the officer finds the alien inadmissible and no exception applies, the officer must order removal without a hearing before an immigration judge and without ordinary administrative review. Id. § 1225(b)(1)(A)(i). Before issuing a removal order, the officer must advise the alien of the charges and allow a response in a sworn statement. 8 C.F.R. § 235.3(b)(2)(i). Interpretive assistance must be provided if needed. Id. The removal order and related documents “must be reviewed and approved by [a] supervisor” before becoming final. Id. § 235.3(b)(7). A person may claim that expedited removal does not apply to him. For example, he may claim U.S. citizenship, lawful  5 permanent resident status, refugee or asylee status, admission or parole, or sufficient continuous physical presence. 8 U.S.C. § 1225(b)(1)(A)(iii)(II), (1)(C); 8 C.F.R. § 235.3(b)(5). The regulations allow the person to present evidence in support of these claims. 8 C.F.R. § 235.3(b)(6)–(7). The parties agree that — at least when the executive has not exercised his discretion in a way that categorically bars asylum — the statute provides for the following regime. See Appellants’ Brief at 8–12; Appellees’ Brief at 4–6; cf. Huisha- Huisha v. Mayorkas, 27 F.4th 718, 730–31 (D.C. Cir. 2022); Refugee & Immigrant Center for Education & Legal Services v. Mullin, 174 F.4th 81, 105–11 (D.C. Cir. 2026) (addressing whether executive action may foreclose the statutory opportunity to apply for asylum). If an alien expresses fear of persecution or torture, or an intent to apply for asylum, the alien is referred to a non-adversarial “credible fear” interview with an asylum officer who decides whether there is a significant possibility that the alien could establish eligibility for asylum or related protection. 8 C.F.R. §§ 208.30(e), 235.3(b)(4); 8 U.S.C. § 1225(b)(1)(A)(ii). Under that system, if the asylum officer finds no credible fear, a supervisor reviews that decision. 8 C.F.R. § 235.3(b)(7). If the supervisor agrees, the alien may request review by an immigration judge. 8 U.S.C. § 1225(b)(1)(B)(iii)(III). The judge reviews the issue de novo. 8 C.F.R. § 1003.42(c). If the judge also finds no credible fear, the expedited removal order becomes final. Id. § 1003.42(f)(2). If credible fear is found at any stage, the alien must be detained for further consideration of the asylum application. 8 U.S.C. § 1225(b)(1)(B)(ii). United States Citizenship and Immigration Services has “complete discretion” over how to  6 proceed. 8 C.F.R. § 208.30(f). It may place the alien into regular (non-expedited) removal proceedings before an immigration judge or instead retain jurisdiction over the asylum application. Id. If USCIS retains jurisdiction, it follows the procedures set out in 8 C.F.R. § 208.9 to assess the alien’s eligibility for asylum, withholding of removal, or protection under the Convention Against Torture. See 8 U.S.C. §§ 1225(b)(1), 1158(a), 1231(b)(3); FARRA § 2242; 8 C.F.R. §§ 1208.16–18. Other forms of relief are available only in regular removal proceedings. Judicial review of individual expedited-removal orders is narrow. See id. § 1252(a)(2)(A), (e). Through habeas corpus, a court may consider only whether the petitioner is an alien, whether an expedited-removal order was issued, and whether the petitioner has lawful-permanent-resident, refugee, or asylee status. Id. § 1252(e)(2); 28 U.S.C. § 2241(c) (conferring jurisdiction). Courts may not review the underlying determination of inadmissibility or the credible-fear determination. 8 U.S.C. § 1252(e)(5). Congress has also provided limited judicial review of the expedited-removal system itself. Challenges to the lawfulness of the statute, regulations, or certain written policies must be brought in the United States District Court for the District of Columbia and within the time limits set by statute. Id. § 1252(e)(3). Detention during expedited removal is generally mandatory. 8 U.S.C. § 1225(b)(1)(B)(iii)(IV); 8 C.F.R. § 235.3(b)(2)(iii). The process operates on a short timeline. Decisions and removals often occur within days, and sometimes sooner. Hartzler Dec. ¶ 13, Make the Road New York v. Noem, No. 1:25-cv-90 (D.D.C. June 10, 2025), ECF No. 50-13.  7 B. History of Executive Branch Policies Since the creation of expedited removal, the Executive has implemented it through a series of Federal Register designations. Those designations have defined which aliens may be placed in expedited removal and under what conditions. A designation in 1997 applied expedited removal to aliens arriving at ports of entry and to those interdicted at sea. Inspection and Expedited Removal of Aliens; Detention and Removal of Aliens; Conduct of Removal Proceedings; Asylum Procedures, 62 Fed. Reg. 10,312 (Mar. 6, 1997). The Attorney General noted that the statute permitted future expansion and that any such expansion would depend on enforcement needs and available resources. Id. at 10,314. A 2002 designation expanded expedited removal to certain aliens who arrived in the United States by sea, were not admitted or paroled, and could not show two years of continuous physical presence. Notice Designating Aliens Subject to Expedited Removal Under Section 235(b)(1)(A)(iii) of the Immigration and Nationality Act, 67 Fed. Reg. 68,924 (Nov. 13, 2002). In 2004, the Secretary of Homeland Security expanded the application of expedited removal to all qualifying aliens encountered within 100 miles of the border and within fourteen days of entry. Designating Aliens for Expedited Removal, 69 Fed. Reg. 48,877 (Aug. 11, 2004). That designation did not limit its application to certain methods of arrival as the previous ones had. The Secretary explained that because he wanted to focus enforcement resources, he was not expanding the designation beyond those time and distance parameters. Id. at 48,879.  8 In 2017, the Secretary extended existing expedited- removal designations to Cuban nationals, who had previously been exempt. Eliminating Exception To Expedited Removal Authority for Cuban Nationals Encountered in the United States or Arriving by Sea, 82 Fed. Reg. 4,902 (Jan. 17, 2017). In July 2019, DHS issued a new designation. It authorized expedited removal for certain aliens encountered anywhere in the United States — not just within 100 miles of the border — who had not been admitted or paroled and who did not show two years of continuous physical presence. Designating Aliens for Expedited Removal, 84 Fed. Reg. 35,409 (July 23, 2019). The 2019 designation was preliminarily enjoined about two months after it was issued. See Make the Road N.Y. v. McAleenan, 405 F. Supp. 3d 1, 72 (D.D.C. Sept. 27, 2019). This court reversed the preliminary injunction. Make the Road N.Y. v. Wolf, 962 F.3d 612, 618 (D.C. Cir. 2020). In March 2022, DHS rescinded the 2019 designation. Rescission of the Notice of July 23, 2019, Designating Aliens for Expedited Removal, 87 Fed. Reg. 16,022 (Mar. 21, 2022). During the period it was in effect, it was reportedly applied to twenty-one aliens. Aleaziz, The Biden Administration Has Suspended a Trump-Era Policy That Put Immigrants at Risk of Being Deported Without Due Process, BuzzFeed News (Oct. 14, 2021), reprinted in Steinberg Decl. ¶ 13, Make the Road N.Y. v. Noem, No. 1:25-cv-90 (D.D.C. June 10, 2025), ECF No. 50-23, at 250–51. All other prior expedited-removal designations remained in effect after the rescission.  9 II. The Facts of This Case A. DHS’s 2025 Expansion of Expedited Removal On January 21, 2025, Acting Secretary of Homeland Security Benjamin Huffman issued a notice authorizing the use of expedited removal nationwide for certain aliens who cannot demonstrate continuous physical presence in the United States for at least two years. Designating Aliens for Expedited Removal, 90 Fed. Reg. 8,139 (Jan. 24, 2025).1 Under the 2025 Designation, DHS may place in expedited removal, with limited exceptions, aliens who are inadmissible because they lack valid documentation or entered via fraud or willful misrepresentation, have not been admitted or paroled, and have not affirmatively shown, to the satisfaction of an immigration officer, that they have been continuously present in the United States for the two years immediately preceding the determination of inadmissibility. Id.; 8 U.S.C. § 1182(a)(6)(C) (fraud or misrepresentation), (a)(7) (documentation requirement). In practical terms, the Designation extended expedited removal to all aliens eligible for expedited removal under the statute who were not already covered by prior designations. DHS thereby exercised its discretion to apply its expedited- removal authority to the maximum extent allowed by law. The notice stated that the Designation would “enhance national security and public safety — while reducing government costs — by facilitating prompt immigration determinations.” Designating Aliens for Expedited Removal, 1 The notice rescinded the 2022 rescission of the 2019 designation. Designating Aliens for Expedited Removal, 90 Fed. Reg. at 8,139.  10 90 Fed. Reg. at 8,139. It also stated that the expanded use of expedited removal would allow DHS to address more effectively “the large volume of aliens who are present in the United States unlawfully” and to ensure their prompt removal. Id. On January 23, 2025, Acting Secretary Huffman issued an internal memorandum providing guidance on how to implement the Designation. The Huffman Memorandum directs immigration officers to take all steps necessary to review an alien’s case and to evaluate whether the alien should be placed in expedited removal. It instructs officers to consider applying expedited removal to any alien who is “amenable” to that process. Department of Homeland Security, Guidance Regarding How to Exercise Enforcement Discretion (Jan. 23, 2025), perma.cc/X7EG-WKZ7. In addition, the memorandum addresses how officers should exercise enforcement discretion in implementing the expanded authority. It encourages them to consider a range of factors, including whether an individual is eligible for expedited removal and whether the individual failed to apply for asylum within the statutory deadline. The memorandum thus functions as an operational directive. It does not itself expand the statutory scope of expedited removal. Instead, it guides officers in identifying cases in which expedited-removal procedures may be appropriate under the 2025 Designation and existing law. B. This Case’s Procedural History Make the Road New York filed this action challenging the 2025 Designation and the Huffman Memorandum. The complaint asserted statutory and constitutional claims,  11 including a claim that the Designation and Huffman Memorandum violate the Due Process Clause. It alleged standing on behalf of its members, asserting that some were subject to expedited removal under the 2025 Designation.2 In June 2025, Make the Road moved to postpone the effective date of the Designation and Huffman Memorandum under 5 U.S.C. § 705.3 The district court granted the § 705 stay in August 2025. Applying the framework of Mathews v. Eldridge, it concluded that Make the Road was likely to succeed on its due process claim because aliens subject to expedited removal have a significant liberty interest in remaining in the United States and face a substantial risk of erroneous deprivation of this interest under the procedures established by the Designation and Huffman Memorandum. The district court identified three principal areas of risk: 1. The procedures for referring individuals who fear removal for credible-fear interviews. 2. The credible-fear interviews themselves. 3. The procedures for determining whether an alien has been continuously present in the United States for two years. The court concluded that the Government’s interest in swift removals did not outweigh the value of additional 2 The complaint also named two individual plaintiffs, Mary and John Doe. They alleged that they were placed in expedited-removal proceedings and removed under the Designation and the Huffman Memorandum. 3 The individual plaintiffs did not seek relief in that motion.  12 procedural safeguards. It also determined that equitable factors favored relief. By its terms, the order “postponed and stayed” without qualification “the effective dates of implementation and enforcement” of the 2025 Designation and the Huffman Memorandum. Order, Make the Road N.Y. v. Noem, No. 1:25- cv-190 (D.D.C. Aug. 29, 2025), ECF No. 65. The stay thus applied on a nationwide basis. It was not limited to Make the Road or its members. The Government filed an emergency motion in this court for an administrative stay and a stay pending appeal. The court denied the motion for an administrative stay, granted in part the motion for a stay pending appeal, and denied it in part. Order, Make the Road N.Y. v. Noem, No. 25-5320, 2025 WL 3563313 at *1 (D.C. Cir. Nov. 22, 2025). Judge Rao dissented, stating that the district court lacked authority to enter the § 705 stay. Id. at *45 (Rao, J., dissenting). III. Standard of Review and Summary of Analysis “The factors to be considered in determining whether a stay is warranted are: (1) the likelihood that the party seeking the stay will prevail on the merits of the appeal; (2) the likelihood that the moving party will be irreparably harmed absent a stay; (3) the prospect that others will be harmed if the court grants the stay; and (4) the public interest in granting the stay.” Cuomo v. NRC, 772 F.2d 972, 974 (D.C. Cir. 1985). In the nearly two decades since the Supreme Court decided Winter v. NRDC, 555 U.S. 7 (2008), and Nken v. Holder, 556 U.S. 418 (2009), our circuit has not had occasion to decide whether, as those opinions at least suggest, the party moving for a preliminary injunction (Winter) or a stay (Nken) needs to  13 show that the party is likely to succeed on the merits, and that the party is irreparably harmed, and that the balance of equities favors that party. In other words, we have not decided if the movant’s failure to establish any one of the factors dooms the motion or if instead we can apply a sliding-scale approach (as we did before Winter and Nken). Nor do we need to decide so today because Make the Road has not satisfied the more movant-friendly, sliding-scale standard. First, it is not likely to prevail on the merits. See infra, Part V. Second, lawful “removal alone cannot constitute the requisite irreparable injury.” Nken, 556 U.S. at 435. Third, the Government is harmed by “an improper intrusion by a federal court into the workings of a coordinate branch of the Government.” INS v. Legalization Assistance Project, 510 U.S. 1301, 1305-06 (1993) (O’Connor J., in chambers). And fourth, when removal is lawful, the public has an “interest in prompt execution of removal orders.” Nken, 556 U.S. at 436. Because the application of the second, third, and fourth factors are well established in the context of alien removals, the rest of this opinion focuses on the first factor — Make the Road’s failure to show that it is likely to succeed on the merits. IV. Jurisdiction, Standing, Timeliness, and the District Court’s Authority to Issue a Stay Before turning to whether Make the Road has shown that the challenged agency actions likely violate due process, we discuss four threshold issues: (A) jurisdiction; (B) standing; (C) timeliness; and (D) the district court’s authority to issue a stay. None of those issues blocked the district court from proceeding as it did.  14 A. Jurisdiction First, jurisdiction. The district court had jurisdiction under 8 U.S.C. § 1252(e)(3). Section 1252 tightly restricts judicial review of expedited removal. It bars review of individual removal orders, subject to narrow exceptions not relevant here. See 8 U.S.C. § 1252(a)(2)(A), (e)(2). And it commits the Secretary’s decision whether to designate classes of aliens for expedited removal to the Secretary’s “sole and unreviewable discretion.” Id. § 1225(b)(1)(A)(iii)(I); see also id. § 1252(a)(2)(A)(ii); Make the Road New York v. Wolf, 962 F.3d 612, 631–34 (D.C. Cir. 2020) (“Make the Road I”) (holding that courts may not second-guess the Secretary’s policy judgment). But the statute does not eliminate all judicial review. Instead, § 1252(e)(3) channels to the District Court of the District of Columbia claims that the expedited-removal statute, its implementing regulations, or any “written policy directive, written policy guideline, or written procedure” is unconstitutional, inconsistent with the INA, or otherwise contrary to law. 8 U.S.C. § 1252(e)(3)(A). Under Make the Road I, this suit falls within that preserved category.4 The Plaintiffs challenge two “written policy directive[s]”: the January 21, 2025 Designation Notice and the January 23, 2025 Huffman Memorandum. And they challenge 4 Like Judge Rao, I am not persuaded by the court’s analysis in Make the Road I, and I join Part II.A of her concurrence in the judgment. But because Make the Road I is a binding precedent, I apply its holding in today’s case.  15 whether those directives comply with statutory and constitutional limits. So the district court had jurisdiction. That conclusion follows from the line this court has already drawn between unreviewable designation decisions and reviewable challenges to the written policies implementing expedited removal. Make the Road I held that the District Court for the District of Columbia has jurisdiction over systemic challenges to designation decisions or their implementing directives. As the court explained, “Section 1252 . . . route[s] . . . legal and constitutional challenges to two different fora”: individual challenges to orders denying discretionary relief go to the courts of appeals, while “challenges pertaining to the expedited removal program must be filed in the District of Columbia district court.” 962 F.3d at 630–31. Since the plaintiffs brought their legal and constitutional challenges to the program in the D.C. district court, under Make the Road I, their challenges may proceed.5 5 In an amicus brief, the Federation for American Immigration Reform suggests that Make the Road I’s jurisdictional analysis is undermined by this court’s subsequent decision in iTech U.S., Inc. v. Renaud, 5 F.4th 59 (D.C. Cir. 2021). But iTech addressed whether the jurisdictional bar in § 1252(a)(2)(B)(ii) is limited to “[d]enials of discretionary relief,” holding that it is not. Id. at 63. Make the Road I, by contrast, addressed the distinct question whether that generally worded jurisdictional bar blocks review of generally applicable implementing directives in light of the specific review scheme Congress established in § 1252(e)(3). Because iTech neither involved expedited removal nor considered the interaction between § 1252(a)(2)(B) and § 1252(e)(3), it does not displace Make the Road I’s conclusion that Congress preserved judicial review of such directives.  16 To be sure, Make the Road I acknowledged that the Secretary’s policy choice concerning “whether to expand expedited removal” is unreviewable. Id. at 618. But that is irrelevant. All Make the Road I meant is that no one may challenge the Secretary’s decision if it “falls within statutory and constitutional bounds.” Id. at 635. So, plaintiffs cannot challenge the designation decision, because that represents a policy choice to expand expedited removal. Id. at 631–34. But they can challenge the written directives effectuating that choice for constitutional and statutory defects — just as they have done here. Id. at 625–26.6 B. Standing To demonstrate associational standing, Make the Road must show, among other things, that at least one of its members has “standing to sue in [his] own right.” Hunt v. Washington State Apple Advertising Commission, 432 U.S. 333, 343 (1977). It has done so.7 6 Nor does a written directive cease to be a “written policy directive” under § 1252(e)(3)(A) merely because it also announces a designation decision. It is both — and the former is subject to judicial review. 7 The parties disagree about whether any member of Make the Road has standing to challenge DHS’s continuous-presence requirements. So our discussion of standing focuses only on that. Make the Road satisfies the other requirements for associational standing to challenge DHS’s continuous-presence procedures and has associational standing to challenge DHS’s credible-fear procedures. See Hunt v. Washington State Apple Advertising Commission, 432 U.S. 333, 343 (1977) (association has standing when “(a) its members would otherwise have standing to sue in their own right; (b) the interests it seeks to protect are germane to the organization’s  17 Make the Road challenges a unitary set of agency actions: the Designation and the Huffman Memorandum. It claims that those DHS directives injure its members who have a credible fear of persecution abroad by denying them the adequate credible-fear interviews that due process requires. It has therefore alleged (1) an injury (2) traceable to the directives and (3) redressable by vacatur of the directives. DHS does not dispute Make the Road’s standing on those grounds. But it says Make the Road can only challenge the directives’ alleged denial of adequate credible-fear interviews — not the directives’ alleged denial of an adequate chance to show that the alien has lived in the country for two straight years. But that confuses Make the Road’s legal claim with its legal arguments. After establishing standing to seek vacatur of the directives based on its members’ credible-fear injuries, Make the Road may advance any legal argument to show that the directives are unlawful. In this case, one of those arguments is that the directives violate due process by denying adequate credible-fear interviews. Another of those arguments is that the directives violate due process by denying others an adequate opportunity to establish two years of continuous presence in the United States. To be clear, Make the Road cannot ask the court for a remedy that would redress only other people’s injuries. Here, regardless of what due-process argument is made, Make the Road’s requested remedy — vacatur of the directives — would redress the (alleged) injury to its members caused when those purpose; and (c) neither the claim asserted nor the relief requested requires the participation of individual members in the lawsuit”).  18 directives (allegedly) prevent their members from receiving adequate credible-fear interviews. This court confirmed that principle in Ascendium Education Solutions, Inc. v. Cardona, 78 F.4th 470 (D.C. Cir. 2023). There, the plaintiffs challenged an agency rule and sought vacatur. Id. at 474. We held that when a plaintiff has standing to seek vacatur of a rule, it “has standing to bring any claims that could lead to the Rule’s vacatur.” Id. at 478. That is so “even if” some of the challenged provisions of that rule “are not directly linked to Petitioners’ injuries.” Id. (quoting Mozilla Corp. v. FCC, 940 F.3d 1, 46–47 (D.C. Cir. 2019)). Because vacating the directives would redress its members’ injuries, Make the Road may advance any legal theory that would justify vacating those directives. C. Timeliness Next, timeliness. Because the suit was filed within 60 days of the challenged written directives, it is timely. A challenge under § 1252(e)(3) “must be filed no later than 60 days after the date the challenged section, regulation, directive, guideline, or procedure . . . is first implemented.” 8 U.S.C. § 1252(e)(3)(B). This requirement is jurisdictional. M.M.V. v. Garland, 1 F.4th 1100, 1109 (D.C. Cir. 2021). In calculating compliance with the time requirement, courts must look to when “the challenged” directive or procedure was “first implemented.” Id. at 1108. Here, the suit was timely. The Plaintiffs challenge two written directives: the Designation and the Huffman Memorandum. The Designation was implemented on January 21, 2025; the Huffman Memorandum was implemented on  19 January 23, 2025. The Plaintiffs filed suit on January 22, 2025 and timely amended on March 22, 2025. That is within 60 days of both directives. So the suit was timely. The Government and its amicus respond that the Plaintiffs’ suit is untimely because the procedures invoked by the 2025 directives were first implemented years ago — in 2002 for aliens arriving by sea, in 2004 for aliens near land borders, and in 2019 for all other aliens eligible under the statute. On that view, the January 2025 directives are not independently reviewable. They are mere transmission devices for pre- existing procedures, and challenges to those procedures are time-barred. That is wrong. Section 1252(e)(3) contemplates review of a specific written instrument — “a regulation,” “a written policy directive, written policy guideline, or written procedure.” 8 U.S.C. § 1252(e)(3)(A)(ii). Judicial review attaches to these discrete legal instruments, not to abstract policies divorced from particular documents. Cf. Biden v. Texas, 597 U.S. 785, 809 (2022) (explaining that the APA does not contemplate review of “an abstract decision apart from specific agency action”). The January 2025 Designation Notice and Huffman Memorandum are specific written directives. They are the legal instruments the Plaintiffs ask the court to set aside. They are the objects of this lawsuit. And they were first implemented in January 2025. The Government’s argument assumes that a written directive invoking pre-existing procedures is not itself a “written policy directive” subject to review — or that challenges to such a directive collapse into challenges to the underlying procedures. But the statute draws no such distinction. A directive does not cease to be a reviewable written instrument merely because it incorporates procedures  20 used elsewhere. Each written directive is a distinct legal instrument, and each is subject to its own 60-day window. Moreover, the Government’s contrary reading would gut § 1252(e)(3). If a directive invoking pre-existing procedures inherits those procedures’ timeliness bar, then any expansion of expedited removal could be insulated from judicial review. The Government would need only to employ pre-existing procedures, regardless of their original scope or context. A procedure designed for and tested only on aliens arriving by sea could later be applied to millions of long-term residents in the interior. Yet, no court could hear a challenge. That would allow the Government to dodge the judicial review contemplated by Congress in § 1252(e)(3).8 Think about it from another angle. The January 2025 directives applied expedited removal to a new population under new circumstances. The question in this case is whether those new applications comport with due process — i.e., whether procedures adequate for arriving aliens are adequate for long- term interior residents. That question could not have even been raised until the directives existed. So it is hard to understand how we could hold that the Plaintiffs failed to raise in a timely 8 Even setting aside the structural problem, the 2019 designation provides no barrier. That designation was formally rescinded in 2022. See Rescission of the Notice of July 23, 2019, Designating Aliens for Expedited Removal, 87 Fed. Reg. 16,022 (Mar. 21, 2022). Once rescinded, it had no continuing legal effect. The 2025 Designation Notice is a new written directive creating new legal obligations. Agencies cannot immunize directives from review by rescinding them when challenged and reinstating them later, outside the 60-day window.  21 fashion a challenge that was impossible to raise because the directive to be challenged did not exist.9 This reading is consistent with M.M.V. v. Garland, 1 F.4th 1100 (D.C. Cir. 2021). The plaintiffs there argued that the 60- day clock should run from when the challenged policy was applied to them specifically — i.e., when agents first took actions, authorized by the policy, at the particular facility where they were held. Id. at 1109. This court rejected that position as a misreading of 8 U.S.C. § 1252(e)(3)(B). The court held that the limitations period runs from when “the agreement became effective” or “when CBP agents began conducting interviews” of anyone covered by the policy — not from when the policy was “first applied to specific facilities or [specific] aliens.” Id. Unlike the unsuccessful plaintiffs in M.M.V., the Plaintiffs here do not rely on when the challenged policies were applied to them personally. Instead, they contend that the clock runs from when the written directives they challenge — the 2025 9 The Government suggests that the mode of arrival or length of presence is constitutionally irrelevant — that procedures adequate for aliens arriving by sea are equally adequate for long-term residents in the interior. Perhaps so. But that is an argument about whether the Plaintiffs’ due-process claim succeeds, not about whether they may bring it. The timeliness question is whether the Plaintiffs challenged the directives within 60 days of their implementation. They did. Cf. Corner Post, Inc. v. Board of Governors of Federal Reserve System, 144 S. Ct. 2440, 2451 (2024) (“we have ‘reject[ed]’ the possibility that a ‘limitations period commences at a time when the [plaintiff] could not yet file suit’ as ‘inconsistent with basic limitations principles’”) (quoting Bay Area Laundry and Dry Cleaning Pension Trust Fund v. Ferbar Corp. of California, 522 U.S. 192, 200 (1997)).  22 Designation Notice and the Huffman Memorandum — first took legal effect. That is the implementation-based trigger M.M.V. identified. D. The District Court’s Authority to Issue a Stay We reach our final threshold issue: whether the district court had authority to issue a stay. It did. First, 5 U.S.C. § 705 authorized the district court to issue a stay. And second, the limit on injunctive relief in 8 U.S.C. § 1252(f)(1) did not stand in the way. Start with the district court’s authority to issue the stay in the first place. The source of that authority came from the Administrative Procedure Act. The APA authorizes courts to “hold unlawful and set aside agency action” that is “contrary to constitutional right.” 5 U.S.C. § 706(2)(B). Constitutional challenges to agency action are therefore resolved within the APA’s judicial- review framework. See Webster v. Doe, 486 U.S. 592, 599, 602-04 (1988) (even when “committed to agency discretion,” constitutional claims may proceed “under the APA” because the Constitution provides a “law to apply”); id. at 607 n.* (Scalia, J., dissenting) (“Chapter 7 (originally enacted as § 10 of the APA) is an umbrella statute governing judicial review of all federal agency action. While a right to judicial review of agency action may be created by a separate statutory or constitutional provision, once created it becomes subject to the judicial review provisions of the APA unless specifically excluded, see 5 U.S.C. § 559.”). And 5 U.S.C. § 705 has been  23 understood to authorize courts to issue stays when they are engaged in judicial review under the APA.10 The due-process challenge sought vacatur of agency action as unconstitutional. So it was properly reviewed under the standard set forth in § 706(2)(B). True, the district court claimed it did “not reach Make the Road’s APA claims.” Make the Road New York v. Noem, No. 25-cv-190, 2025 WL 2494908, at *9 n.14 (D.D.C. Aug. 29, 2025). But it meant only the Plaintiffs’ claims that the agency actions were unreasonable, were unreasonably explained, or violated notice-and-comment requirements. The court went on to evaluate the due-process claim and to grant a § 705 stay based on its assessment of that claim’s merits. That said, the APA does not always supply the governing framework for judicial review of agency action. It provides the default structure for such review, including a general cause of action (§ 702), default forms of proceeding (§ 703), authority for interim relief pending review (§ 705), and standards of review (§ 706). Congress may displace that framework by creating a special statutory review scheme. When such a scheme exists, § 703 directs courts to use the specified form of proceeding rather than the APA’s default route. But the APA’s provisions remain applicable except to the extent a later statute “expressly” supersedes them. 5 U.S.C. § 559. This Court applies that principle strictly. A statute displaces APA procedures only when Congress creates procedures “so clearly different from those required by the APA that it must have intended to displace the norm.” Citizens for Responsibility & Ethics in Washington v. FEC, 993 F.3d 10 See, e.g., West Virginia v. EPA, 577 U.S. 1126, 1126 (2016).  24 880, 889–90 (D.C. Cir. 2021) (quoting Asiana Airlines v. FAA, 134 F.3d 393, 397 (D.C. Cir. 1998)). Section 1252(e)(3) creates a special statutory review proceeding, but it does not displace the APA’s procedural framework. It designates a forum: the District Court for the District