D.C. Circuit Kills Trump’s Border Invasion Removal Order in RAICES v. Mullin — Every Summary Deportation Without Asylum Review Violates Federal Law
Case No. 25-5243 · U.S. Court of Appeals, D.C. Circuit · 2026
📄 Read the Full Decision (PDF)
The D.C. Circuit Court of Appeals ruled that Proclamation 10888 and the DHS Guidance implementing it are unlawful — and that no presidential declaration of a border “invasion” can strip asylum seekers of their statutory rights under the Immigration and Nationality Act. The court affirmed the district court’s permanent injunction and vacatur of the Guidance in full. The administration’s attempt to replace the INA’s mandatory removal procedures with summary deportation, without hearings, without asylum screenings, and without immigration judge review, failed on every statutory ground the government advanced.
This decision draws a hard constitutional and statutory line. The President’s authority under 8 U.S.C. § 1182(f) reaches the border. It does not reach inside the United States. Once a noncitizen is physically present on American soil, Congress — not the President — controls the removal process. Proclamation 10888 tried to change that. The D.C. Circuit said the INA does not permit it.
They crossed the southern border and were immediately placed into a removal pipeline that Congress never authorized. No credible fear interview. No Form I-862. No referral to an immigration judge. No opportunity to file an asylum application. Under DHS’s “Direct Repatriation” pathway — created by informal guidance implementing Proclamation 10888 — officers received explicit instructions to bypass the standard statutory forms and procedures entirely.
These were people who, under any normal application of the INA, would have triggered mandatory protections. Individuals with colorable asylum claims. People facing persecution. Individuals who might face torture if returned to their home countries. Congress built a specific statutory framework to protect exactly these people — credible fear screenings, asylum applications, withholding assessments, CAT reviews. Proclamation 10888, signed on January 20, 2025, declared their presence an “invasion” and swept those protections off the table with an executive signature. The Guidance that followed told DHS officers to act as though those protections did not exist.
The district court certified a class of all such individuals, declared the Guidance unlawful, and permanently enjoined its implementation. The D.C. Circuit affirmed.
The Short Version
The President can bar people from entering the United States. The President cannot create his own rules for removing people who are already here. Those are two different things. Congress gave the President the first power. Congress kept the second power for itself — and exercised it in exhaustive detail in the INA.
The Statutory Framework
The court identified three independent INA violations in Proclamation 10888 and the implementing Guidance:
“Whenever the President finds that the entry of any aliens or any class of aliens into the United States would be detrimental to the interests of the United States, he may by proclamation, and for such period as he shall deem necessary, suspend the entry of all aliens or any class of aliens…”
Violation 1 — Asylum (§ 1158(a)). Any alien physically present in the United States may apply for asylum. The statutory exceptions are narrow: safe third country agreement, one-year filing bar, prior denial. The Proclamation invented a fourth exception — the President’s finding of an “invasion.” The INA permits no such exception. An executive cannot create new bars to asylum eligibility by proclamation. New restrictions on asylum eligibility require notice-and-comment rulemaking under §§ 1158(b)(2)(C) and 1158(d)(5)(B). The Guidance was informal. It went through no rulemaking. It is void.
Violation 2 — Withholding of Removal (§ 1231(b)(3)(A)). Withholding is mandatory. If an applicant establishes that removal to a particular country would subject them to persecution on a protected ground, the INA bars that removal. The DHS Guidance instructed officers not to assess persecution or torture risks at all. That instruction does not limit the statute. It violates it directly.
Violation 3 — Convention Against Torture Protections. The regulations implementing CAT require a two-stage assessment: full withholding-under-CAT review, followed by deferral-of-removal review. The Guidance collapsed these into a single, truncated screening, stripped applicants of their regulatory rights to counsel and evidence, and eliminated appellate review. The court held this unlawful. Agencies cannot substitute their own procedures for duly promulgated regulations.
Rejecting the Government’s Counter-Arguments
The government argued that § 1252(f)(1) — which bars lower courts from enjoining the operation of certain Part IV INA provisions — precluded the district court’s injunction. The court rejected this. The Proclamation derived its authority from §§ 1182(f) and 1185(a), both in Part II of the INA, not Part IV. The injunction targeted those extra-statutory actions, not the removal statutes themselves.
The court also clarified a critical distinction: vacatur under the APA is not an injunction. Section 1252(f)(1) limits injunctive relief. It says nothing about vacatur. The district court’s vacatur of the DHS Guidance — which set aside the unlawful agency action and restored the statutory status quo — was proper and fully within the court’s authority.
Every noncitizen physically present in the United States retains the statutory right to apply for asylum, to receive withholding of removal if eligible, and to have CAT claims properly assessed — regardless of any presidential proclamation declaring a border “invasion.” No executive order, proclamation, or informal guidance can extinguish these rights. They require a statute to modify. They require notice-and-comment rulemaking to restrict. A signature on a proclamation is not enough.
| Procedure | Proclamation 10888 / DHS Guidance | INA Statutory Requirement |
|---|---|---|
| Asylum Application | Categorically barred for “invasion” entrants; no I-589 permitted | Any alien physically present may apply — § 1158(a)(1); only 3 statutory exceptions |
| Credible Fear Interview | Bypassed; DHS officers instructed not to conduct screenings | Mandatory for expedited removal candidates — § 1225(b)(1)(B) |
| Immigration Judge Review | Eliminated; no Form I-862 Notice to Appear issued | Required for regular removal — § 1229a; record on appeal preserved |
| Withholding Assessment | Guidance instructs officers to skip persecution/torture risk assessment | Mandatory if applicant faces persecution — § 1231(b)(3)(A) |
| CAT Two-Stage Review | Collapsed into single truncated screening; no counsel, no evidence rights | Full two-stage assessment required — 8 C.F.R. §§ 208.16–208.18 |
| Rulemaking | Guidance issued informally; no notice-and-comment rulemaking | New asylum restrictions require formal rulemaking — §§ 1158(b)(2)(C), 1158(d)(5)(B) |
| § 1252(f)(1) Applicability | Government claimed it barred district court’s injunction | Court: Proclamation authority in Part II, not Part IV; injunction permissible |
The government’s legal theory in RAICES v. Mullin rested on a series of statutory sleights of hand. Each one fails on its own terms. Together, they amount to an argument that the President can do by proclamation what Congress expressly reserved for legislation. Here are the five fatal flaws in the government’s position, ranked from most destructive to least:
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The Entry-Equals-Removal Substitution. The government’s core argument was that the President’s authority to suspend “entry” under § 1182(f) carries with it an implicit authority to create new removal procedures for those already inside the country. This is textually unsupportable. “Entry” and “removal” are not synonyms in the INA. They never have been. The INA devotes separate statutory parts to each. The historical record — every prior presidential use of § 1182(f) — shows presidents have used it exclusively to restrict admissions, never to govern removal of people already present. The D.C. Circuit’s rejection of this argument is clean, thorough, and correct.
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The Informal Guidance End-Run Around Rulemaking. Even if the substantive policy goals of Proclamation 10888 were legally permissible — they are not — the method of implementation was independently fatal. The administration tried to restrict asylum eligibility and alter removal procedures through informal DHS guidance that bypassed notice-and-comment rulemaking entirely. Sections 1158(b)(2)(C) and 1158(d)(5)(B) explicitly require rulemaking for new asylum restrictions. “Guidance” is not a rule. It has no force of law. The DHS Guidance was void from the moment it issued.
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The § 1252(f)(1) Overreach. The government read § 1252(f)(1) as a near-total bar on judicial review of any removal-adjacent executive action. The court correctly rejected this. Section 1252(f)(1) bars enjoining the operation of specific Part IV removal statutes. It does not bar enjoining unlawful executive actions taken under Part II authority. It does not bar APA vacatur. The government’s reading would effectively immunize any executive action touching immigration from judicial review — a result Congress plainly did not intend when it enacted the provision.
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The CAT Collapsing. The Guidance’s treatment of Convention Against Torture claims is perhaps the most technically egregious portion of the administration’s framework. The two-stage CAT assessment — established by duly promulgated regulations at 8 C.F.R. §§ 208.16–208.18 — reflects years of regulatory development and implements specific treaty obligations. Collapsing it into a single truncated screening, without counsel, without evidence rights, without appellate review, is not a permissible agency interpretation. It is the agency replacing its own regulations with something lesser. Agencies cannot do that without going through the rulemaking process to repeal or modify existing rules.
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The Class Certification Attack. The government argued the certified class was overbroad, citing Article III standing concerns and the Supreme Court’s decisions in TransUnion LLC v. Ramirez and Trump v. CASA. The D.C. Circuit rejected this. The class consisted of individuals physically present in the United States and subject to the Proclamation — people facing imminent harm from an ongoing unlawful policy. The Rule 23(b)(2) framework is specifically designed for systemic harms requiring injunctive relief. The “one plaintiff” standing rule for injunctive class relief applies. The dissent’s concerns about a “perpetual, open-ended class” are real in the abstract but did not defeat certification on these facts.
🔴 Immediate Removal Defense
If your client was removed under a “Direct Repatriation” or non-statutory expedited removal pathway after January 20, 2025 — without a credible fear interview, without an asylum application, and without immigration judge review — that removal occurred under a procedure the D.C. Circuit has now declared unlawful. Document everything. Preserve the record. The remedy question is still developing.
🟡 Withholding and CAT Claims Now
The court’s holding on withholding of removal (§ 1231(b)(3)(A)) and CAT is mandatory language. Officers are required to assess persecution and torture risks. If your client is in expedited removal proceedings and an officer refuses to conduct these assessments, that refusal is now directly contrary to binding circuit authority. File the appropriate motions. Get the refusal on the record. Seek emergency relief if warranted.
🟢 Asylum Applications Remain Legally Protected
The three statutory bars to asylum eligibility remain in force: safe third country agreement under § 1158(a)(2)(A), one-year filing bar under § 1158(a)(2)(B), and prior denial under § 1158(a)(2)(C). Proclamation 10888’s “invasion” bar does not exist as a matter of federal law. File the I-589. Assert the statutory right. The government may deny the claim on the merits — that is discretionary. The government cannot deny the right to file.
🔵 Regulatory Rulemaking Watch
The administration’s lawful avenue, if it wishes to restrict asylum eligibility beyond existing statutory bars, is formal notice-and-comment rulemaking under §§ 1158(b)(2)(C) and 1158(d)(5)(B). Watch the Federal Register. Any new proposed rule targeting asylum eligibility requires a comment period. Practitioners and advocacy organizations must engage those proceedings when they come.
⚫ The Dissent Is a Roadmap for the Next Move
Judge Walker’s dissent is worth reading carefully. The dissent argues that the President possesses inherent constitutional authority to expel noncitizens — grounded in sovereignty doctrine, the Vesting Clause, and historical practice — that exists independently of statutory authority and potentially preempts the INA’s procedural requirements. This argument did not prevail in the D.C. Circuit. It will appear again. The Solicitor General’s office is aware of it. Practitioners should be prepared to meet it at the Supreme Court level.
- Audit your active removal cases — Identify any client subjected to a non-statutory removal pathway, “Direct Repatriation,” or denial of credible fear screening after January 20, 2025. Those removals occurred under procedures the D.C. Circuit has declared unlawful.
- Assert asylum rights affirmatively — File the I-589 for any eligible client in proceedings. The government’s position that “invasion” entrants have no right to apply is now rejected law in the D.C. Circuit. Do not accept an officer’s refusal to receive the application without making a record.
- Demand credible fear procedures for expedited removal clients — An officer who refuses to conduct a credible fear interview for a client subject to expedited removal is acting contrary to the INA and contrary to the D.C. Circuit’s holding. Memorialize the refusal in writing. Seek supervisory review. File the habeas if the client is detained.
- Preserve CAT records — If your client’s CAT claim was assessed under the collapsed single-screening procedure rather than the two-stage regulatory process, that assessment is procedurally defective. Raise the regulatory violation at every level. The 8 C.F.R. §§ 208.16–208.18 framework remains the operative law.
- Monitor the Federal Register — The administration’s lawful next step is formal rulemaking. New proposed rules restricting asylum eligibility will require a public comment period. Engage aggressively. The administrative record you build in rulemaking becomes the evidentiary record in the next round of litigation.
- Watch for Supreme Court cert petition — The administration will almost certainly petition for certiorari. The conflict between the D.C. Circuit majority and Judge Walker’s dissent on inherent expulsion power presents the kind of constitutional question the current Court will find compelling. Begin briefing contingency arguments now.
The D.C. Circuit held what the text of the INA has always said: the President can bar people from entering the United States. The President cannot govern what happens to people who are already here. The INA’s removal procedures — the hearings, the asylum applications, the withholding assessments, the CAT reviews — are not policy preferences that a proclamation can override. They are statutory mandates. Congress wrote them. Congress owns them.
Proclamation 10888 tried to replace the INA with an emergency declaration. The DHS Guidance tried to implement that replacement through informal instructions rather than rulemaking. Both failed. The Guidance is vacated. The injunction holds.
Where this goes next: the Solicitor General’s office will almost certainly seek Supreme Court review. Judge Walker’s dissent on inherent presidential expulsion authority — rooted in sovereignty doctrine and the Vesting Clause — is a serious argument that will get a serious hearing in the current Court. The D.C. Circuit majority is right on the statutory merits. Whether the constitutional merits produce the same outcome is the question that will define the next chapter of this litigation.
RAICES v. Mullin stands for now. The fight is not over.
Proclamation 10888’s removal procedures are unlawful. Every noncitizen physically present in the United States retains the right to apply for asylum under § 1158(a), to seek withholding of removal under § 1231(b)(3)(A), and to have CAT claims assessed under the two-stage regulatory framework. No presidential proclamation changes this. Assert these rights now. Build the record. The Supreme Court is next.
Refugee and Immigrant Center for Education and Legal Services, et al. v. Mullin, No. 25-5243 (D.C. Cir. 2026).
Statutes: 8 U.S.C. §§ 1158(a), 1182(f), 1185(a), 1225(b)(1), 1229a, 1231(b)(3)(A), 1252(f)(1).
Regulations: 8 C.F.R. §§ 208.16–208.18.
Proclamation 10888, 90 Fed. Reg. (Jan. 20, 2025).
This section will be updated as appellate developments occur, including any certiorari petition, Supreme Court briefing, or regulatory rulemaking in response to this decision. Check back for date-stamped updates.
