On June 23, 2026, the U.S. Court of Appeals for the District of Columbia ruled 2-1 in Make the Road New York v. Markwayne Mullin that the Department of Homeland Security (DHS) can apply expedited removal nationwide to “certain aliens who cannot demonstrate continuous physical presence in the United States for at least two years.”
According to the majority, DHS may follow its policy to place in expedited removal, with limited exceptions, those 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.” The majority rejected a partial stay decision by the lower court and a claim by plaintiffs that the policy violates the Due Process Clause of the U.S. Constitution.
Circuit Judge Wilkins, dissenting in part, noted that the fact that the procedures implementing the DHS policy “do not require (1) DHS to ask the persons when they entered the country, or (2) DHS to advise persons that expedited removal applies only if the person has not been continuously present in the country for two years, violates due process.” A procedure “that can result in persons being deported pursuant to the expedited removal statute without even being asked how long they have been in the country might satisfy due process for persons encountered at the border, but it is woefully inadequate for persons encountered in the interior of the country,” he said.
