State of Texas v. United States

Case: 22-40367 Document: 00516384389 Page: 1 Date Filed: 07/06/2022

United States Court of Appeals

for the Fifth Circuit United States Court of Appeals

Fifth Circuit

FILED

July 6, 2022

No. 22-40367 Lyle W. Cayce

Clerk

State of Texas; State of Louisiana,

Plaintiffs—Appellees,

versus

United States of America; Alejandro Mayorkas,

Secretary, U.S. Department of Homeland Security;

United States Department of Homeland Security; Troy

Miller, Senior Official Performing the Duties of the

Commissioner of U.S. Customs and Border Protection,

in his official capacity; United States Customs and

Border Protection; Tae D. Johnson, Acting Director,

U.S. Immigration and Customs Enforcement, in his

official capacity; United States Immigration and

Customs Enforcement; Tracy Renaud, Senior Official

Performing the Duties of the Director of the U.S.

Citizenship and Immigration Services, in her official

capacity; U.S. Citizenship and Immigration Services,

Defendants—Appellants.

Appeal from the United States District Court

for the Southern District of Texas

USDC No. 6:21-CV-16

Before Jones, Clement, and Engelhardt, Circuit Judges.

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Per Curiam:

Before the court is the Department of Homeland Security’s (“DHS”)

request to stay the district court’s vacatur of a new immigration rule that

radically reduces the federal government’s detention of those who are

statutorily required to be removed post-haste. The district court determined

that the rule conflicts with federal statutes, is arbitrary and capricious, and

that its promulgation was procedurally invalid. We are inclined to agree.

Because DHS fails to make a strong showing of likelihood of success on

appeal, the motion for a stay pending appeal is DENIED. We distinguish this

case from a recent decision by the Sixth Circuit, authorizing a stay pending

appeal, based on differing precedent and the benefit of a complete trial

record.

BACKGROUND

Federal immigration law provides that the Attorney General “shall

take into custody,” “shall detain,” and “shall remove” aliens convicted of

certain enumerated crimes and aliens who have become subject to final

orders of removal. 8 U.S.C. §§ 1226(c)(1), 1231(a)(2), 1231(a)(1)(A). Under

the current Presidential Administration, to “implement” these provisions,

the Department of Homeland Security (“DHS”) has outlined new

immigration “guidance for the apprehension and removal of noncitizens” in

a series of memoranda. The first memorandum was circulated in January

2021, when then-Acting Secretary of Homeland Security David Pekoske

purported to “announce[] substantial changes to the enforcement of the

Nation’s immigration laws,” including the establishment of certain

enforcement priorities. The approved enforcement priorities entailed

national security, public safety, and border security. What made this

memorandum controversial was that each of these categories was narrowly

defined to address certain threats but exclude others enumerated in the

federal statutes. For example, DHS required Immigration and Customs

Enforcement (“ICE”) agents to prioritize the enforcement of aliens who

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committed aggravated felonies, but not other deportable aliens with final

orders of removal or who trafficked controlled substances, participated in the

commercialized sex industry, trafficked humans, were convicted of certain

firearm offenses, among others. Effective enforcement in this context would

mean that ICE agents could apprehend aliens with certain criminal

convictions or aliens who have final removal orders and detain them for

speedy processing toward removal. But the first memorandum basically

ignored the legal requirement of detention, and therefore the likelihood of

removal, for those not “prioritized.”

In February, Acting ICE Director Tae Johnson issued a second

memorandum, reiterating the same three narrowly-focused categories. That

memorandum added a requirement that enforcement agents obtain

“preapproval” from their superior offices for any enforcement action against

criminal aliens that did not fall within the three priorities. Both the January

and February memoranda were labelled interim measures and were intended

to guide immigration officials “until Secretary Mayorkas issues new

enforcement guidelines.”

On September 30, 2021, the Secretary of Homeland Security

Alejandro Mayorkas issued a third and final memorandum (“Final Memo”).

Notably, it is agreed that the Final Memo is an agency rule under the

Administrative Procedure Act, 5 U.S.C. § 551(4). The Final Memo

“serve[d] to rescind the January and February Memoranda.” It re-

articulated the same three enforcement priorities, but, unlike the prior

memos, it did not “presumptively subject [the priorities] to enforcement

action.” Instead, before ICE officers may arrest and detain aliens as a threat

to public safety, they are now required to conduct “an assessment of the

individual and the totality of facts and circumstances,” including various

aggravating or mitigating factors. Immigration enforcement personnel are

prohibited from “rely[ing] on the fact of conviction . . . alone,” no matter

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how serious. Similarly, enforcement personnel “should evaluate the totality

of the facts and circumstances” before determining whether an alien who is

otherwise a threat to border security ought to be subject to enforcement.

Not only did the Final Memo engrave these three priorities into

immigration enforcement, but it also specified procedures to ensure

agency-wide compliance. Specifically, the Final Memo required

“[e]xtensive” and “continuous” training, and the implementation of a

“rigorous review” process of all enforcement decisions. According to the

memo, DHS would also “need to collect detailed, precise, and

comprehensive data as to every aspect of the enforcement actions [] take[n]

pursuant to th[e] guidance, both to ensure the quality and integrity of [the]

work and to achieve accountability for it.” Notably, the Final Memo

establishes a “fair and equitable case review process to afford noncitizens and

their representatives the opportunity to obtain expeditious review of the

enforcement actions taken.” In other words, according to the Final Memo,

those whom the law designates as aliens are granted an entirely new avenue

of redress in the event they are removed or detained in a manner that conflicts

with the guidance. The Final Memo was circulated along with a second

memo titled “Significant Considerations in Developing Updated Guidelines

for the Enforcement of Civil Immigration Law” (“Considerations Memo”),

which summarized the key aspects of the Final Memo. The Considerations

Memo further purported to provide insight into DHS’s reasoning for issuing

the Final Memo.

The district court found that these regulatory actions, culminating in

the Final Memo, have had measurable effects on immigration enforcement.

This is particularly true in Texas, where, from 2017 to 2020 (i.e., before any

of the memoranda were issued) ICE agents rescinded no more than a dozen

criminal detainers annually. Yet the district court found that from January

20, 2021 through February 15, 2022, detainers for 170 criminal aliens were

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rescinded in Texas. 1 At least seventeen of those aliens failed to comply with

their parole conditions, four have committed new crimes, and at least one

remains at large in Texas with a warrant out for his arrest. 2 At least fifteen of

the detainers were rescinded after the Final Memo became effective. One

alien who was initially subject to a final order of removal was instead released

to the public in Texas after his detainer was rescinded. The marked increase

in rescinded detainers of criminal aliens has led the Texas Department of

Criminal Justice (“TDCJ”) to update its inmate-tracking system to record

any rescinded detainers, a feature that was previously unnecessary due to the

infrequency at which this occurred. According to data from 2019, DHS

previously acknowledged that criminal aliens recidivated at an average rate

of four criminal arrests/convictions per alien.

Texas and Louisiana filed suit, challenging the legality of the Final

Memo on the basis that it is contrary to federal law, arbitrary and capricious,

and procedurally invalid. 3 The States argued that DHS’s issuance of the

Final Memo conflicts with 8 U.S.C. §§ 1226(c) and 1231(a), both of which

provide that the Attorney General “shall” detain or remove an alien who

1

Detainers were reissued for 29 of these criminal aliens.

2

Similarly, one of the criminal aliens in Louisiana was convicted of indecent

behavior with juveniles and sexual battery, yet his detainer was rescinded, and he was

released subject to supervised release.

3

The States initially filed suit against the January and February Memos, before the

Final Memo was even issued. The district court issued a preliminary injunction, enjoining

enforcement of both memos. Texas v. United States, 555 F. Supp. 3d 351 (S.D. Tex. 2021).

A panel of this court initially stayed the injunction, Texas v. United States, 14 F.4th 332, 334

(5th Cir. 2021), but the en banc court voted to vacate that decision. Texas v. United States,

24 F.4th 407, 408 (5th Cir. 2021) (en banc). During these appellate proceedings, the Final

Memo was issued, thus “rescind[ing] the January and February Memoranda.”

Accordingly, at DHS’s request, this court dismissed the appeal. Texas v. United States,

No. 21-40618, 2022 WL 517281, at *1 (5th Cir. Feb. 11, 2022). The States then amended

their complaint to challenge the Final Memo.

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committed certain crimes or who is subject to an order of removal,

respectively. Because the Final Memo prohibits these statutorily mandated

detentions and removals absent a thorough “review [of] the entire criminal

and administrative record” in order to ascertain the “totality of the facts and

circumstances of the conduct at issue,” the States contended that the rule

cannot stand, and they thus sought injunctive relief. The district court

consolidated the preliminary injunction motion with a two-day bench trial.

In an exhaustive opinion, the court agreed with the States’ positions on all

three issues and vacated the Final Memo. He stayed the effect of the vacatur

briefly to allow DHS to seek appellate review. Defendants expeditiously

moved this court to stay the vacatur order pending appeal.

STANDARD OF REVIEW

When asked to consider whether to grant a stay, this court determines

“(1) whether the applicant has made a strong showing of likelihood to suc-

ceed on the merits; (2) whether the movant will be irreparably harmed absent

a stay; (3) whether issuance of a stay will substantially injure other interested

parties; and (4) where the public interest lies.” Thomas v. Bryant, 919 F.3d

298, 303 (5th Cir. 2019). DHS’s burden is a substantial one, as a stay is “an

extraordinary remedy” and it is “an equitable one committed to this court’s

discretion.” Id. The district court’s findings of fact are reviewed for clear

error and its legal conclusions de novo. Coe v. Chesapeake Expl., L.L.C., 695

F.3d 311, 316 (5th Cir. 2012).

DISCUSSION

DHS defends its rule and challenges the district court’s decision by

invoking a plethora of theories. Based on the following discussion, it is likely

that the district court’s opinion evinces no reversible error of fact or law, nor

any abuse of discretion. We begin with DHS’s multiple justiciability

challenges before proceeding to the merits.

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I. Standing

DHS contends that the States lack standing to challenge the Final

Memo because any purported injury is speculative, unsupported by the

evidence, not fairly traceable to the Final Memo, and not redressable in

federal court. We disagree.

The States must establish by a preponderance of the evidence “an

injury that is ‘concrete, particularized, and actual or imminent; fairly

traceable to the challenged action; and redressable by a favorable ruling.’”

Texas v. United States, 809 F.3d 134, 150 (5th Cir. 2015) (“Texas DAPA”)

(quoting Clapper v. Amnesty Int’l USA, 568 U.S. 398, 409, 133 S. Ct. 1138,

1147 (2013)). It is only necessary that one state have standing, so we, like

the district court, analyze Texas’s standing. Massachusetts v. E.P.A., 549 U.S.

497, 518, 127 S. Ct. 1438, 1453 (2007). Notably, “[s]tates are not normal

litigants for the purposes of invoking federal jurisdiction.” Id. at 518,

127 S. Ct. at 1454. And here, Texas is entitled to “special solicitude,” 4 which

means imminence and redressability are easier to establish here than usual.

4

To be entitled to “special solicitude,” (1) the State must have a procedural right

to challenge the action in question, and (2) the challenged action must affect one of the

State’s quasi-sovereign interests. Massachusetts v. E.P.A., 549 U.S. 497, 517–19, 127 S. Ct.

1438, 1453–54 (2007). Texas satisfies the first requirement by asserting a procedural right

under the APA to challenge the legality of agency action. Texas DAPA, 809 F.3d at 151.

Regarding the second prong, Texas seeks to defend its quasi-sovereign “interest in the

enforcement of immigration law.”

DHS challenges the conclusion that such an interest entitles Texas to special

solicitude, contending that the state’s purported interests amount to no more than the

vindication of “policy disagreements.” This is not so. States “bear[] many of the

consequences of unlawful immigration.” Arizona v. United States, 567 U.S. 387, 397,

132 S. Ct. 2492, 2500 (2012). And “[t]he pervasiveness of federal regulation does not

diminish the importance of immigration policy to the States.” Id. at 397–98, 132 S. Ct. at

2500. “When a State enters the Union, it surrenders certain sovereign prerogatives,”

Massachusetts, 549 U.S. at 519, 127 S. Ct. at 1454, such as the right to control immigration

policy and enforcement. “These sovereign prerogatives are now lodged in the Federal

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A. Injury

Texas’s injuries as a result of the Final Memo are difficult to deny,

specifically its financial injury and harm as parens patriae. First, the

uncontroverted evidence shows that the Final Memo shifted the cost of

incarcerating or paroling certain criminal aliens from DHS to Texas.

Specifically, the TDCJ incurs costs to keep aliens in custody or add them to

parole or mandatory supervision programs when those aliens are not detained

or removed by federal immigration authorities. The district court found that,

for Fiscal Year 2020, the cost of these programs for inmates not detained or

removed was $11,068,994. Additionally, the Tarrant County Sherriff

estimated that the average cost of jailing inmates with immigration detainers

amounted to $3,644,442 per year. DHS does not contest these findings.

Second, and perhaps most importantly, the state incurs substantial

costs associated with criminal recidivism, the rate of which is significant

among the illegal alien population according to evidence presented in the

district court. The district court found that, as of January 2022, Tarrant

County housed 145 inmates with immigration detainers and that, based on

the criminal-history of these inmates, the recidivism rate was 90% for that

population. In October 2021, the recidivism rate for the inmates with

immigration detainers was 69%. Furthermore, DHS conceded that historical

data demonstrated that criminal aliens recidivated at an average rate of four

criminal arrests/convictions per alien. Again, DHS does not meaningfully

Government,” and such forfeited rights are precisely the quasi-sovereign rights that entitle

a state to special solicitude. Id. at 519–20. See also Alfred L. Snapp & Son, Inc. v. Puerto

Rico, ex rel., Barez, 458 U.S. 592, 607, 102 S. Ct. 3260, 3269 (1982) (“[A] State has a quasi-

sovereign interest in the health and well-being—both physical and economic—of its

residents in general.”).

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dispute these findings or the conclusion that recidivism is a serious problem

among the criminal alien population.

Third, the district court further found Texas has actually absorbed, or

at least will imminently absorb, the costs of providing public education and

state-sponsored healthcare to aliens who would otherwise have been

removed pursuant to federal statutory law. And “an increase in the number

of aliens in Texas, many of whom” will create costs for the States, is

sufficient to establish standing. Texas v. Biden, 10 F.4th 538, 547 (5th Cir.

2021). This court recognized that Texas suffers constitutional injury where

an increase in the number of aliens would cause the state to incur significant

costs in issuing additional driver’s licenses. Texas DAPA, 809 F.3d at 155–

56. Similar logic extends to Texas’s obligation to subsidize these additional

aliens’ healthcare and education costs.

DHS raises a number of conclusory challenges to some of these fact

findings, none of which come close to sustaining “clear error.” It first asserts

that the Final Memo does not compel a decrease in enforcement, but rather

merely encourages prioritized enforcement against the most dangerous

aliens. Underlying this claim is the assumption that the Final Memo only

reconfigured the agency’s priorities due to its scarce resources 5 without

5

The district court found that DHS’s reliance on the excuse of “insufficient

resources and limited detention capacity” was not in good faith. While complaining that

Congress has not provided sufficient resources to detain aliens as required by law, DHS

simultaneously submitted “two budget requests [for 2023] in which it ask[ed] Congress to

cut [its] resources and capacity by 26%.” Additionally, since 2021, DHS has “persistently

underutilized existing detention facilities.” We further note the oddity that DHS

emphasizes “limited resources” as its main defense of a rule that increases the complexity

of its purportedly already-overwhelmed agents’ jobs. For example, the Final Memo

instructs that, before pursuing enforcement, personnel should, “to the fullest extent

possible, obtain and review the entire criminal and administrative record and other

investigative information to learn of the totality of the facts and circumstances of the

conduct at issue.” But prior to the Final Memo, personnel could simply rely on an order

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implicating enforcement levels. But the uncontroverted detainer data plainly

contradict this assertion. DHS does not explain why the average daily

number of criminal aliens in the United States’ custody dropped following

the January Memo, and continues decreasing into 2022 under the Final

Memo, let alone successfully show that the district court’s findings on this

matter were clearly erroneous. 6

of removal or a qualifying criminal conviction. As the district court observed, DHS is “in

effect . . . making it harder to comply with the statutory mandate it complains it doesn’t

have the resources to comply with.”

6

DHS complains that the district court “ignor[ed] data from ICE and U.S.

Customs and Border Protection [] that confirms that the government has devoted

significant enforcement resources to such border enforcement,” referencing various

statistics showing an increase in arrests and expulsions year-over-year. It also cites

testimony from one of its employees claiming that, in the first 180 days of implementation

of the Final Memo, the percentage of enforcement actions involving noncitizens increased

as compared to the same time frame in fiscal year 2020. But any increase is less likely

explained by the diligent enforcement efforts of this administration and more likely

explained by the unprecedented surge of illegal aliens pouring over the border in record

numbers. See Amicus Curiae Brief of Arizona, Alabama, Arkansas, Florida, Georgia,

Indiana, Kansas, Kentucky, Mississippi, Missouri, Montana, Nebraska, Ohio, Oklahoma,

South Carolina, West Virginia, and Wyoming at 2–3. Given that the number of encounters

with illegal border-crossers is ten times what it was in April 2020, see id., an increase in

arrests and expulsions is far from impressive, especially if amici are correct that roughly

three-fourths of the illegal aliens that cross the border go undetected by DHS entirely. Id.

at 5. Nevertheless, for purposes of standing, the inquiry is whether the Final Memo caused

Texas to have to incur additional financial, law enforcement, and welfare costs, not whether

there were generally more enforcement actions year-over-year in the midst of a historic

immigration crisis.

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Rather, the data show that the Final Memo “increases the number of aliens

with criminal convictions and aliens with final orders of removal released into

the United States,” and Texas has shown by a preponderance of the evidence

that the cost of that reality has fallen on it and will continue to do so. 7

B. Traceability

Nor does this case present a traceability problem. The district court

found that, when ICE rescinds a detainer for a criminal inmate in TDCJ

custody, those rescissions directly caused the Texas Board of Pardons and

Paroles to revoke parole for certain aliens who were previously approved for

7

DHS also baldly asserts that the district court’s reliance on the “general statistics

in the record” constituted “unwarranted speculation.” It counters that the guidance

merely focuses resources on the aliens who pose the greatest threat. But such conclusory

assertions mean little in light of the evidence illustrating a concerning decline in overall

enforcement, and DHS fails to counter or discredit any of those statistics other than by

expressing its general disagreement.

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parole and, accordingly, those criminal aliens remain in Texas’s custody. For

others, the district court found that the detainer rescissions caused an

increase in the number of criminal aliens and aliens with final orders of

removal to be released into Texas. Consequently, some immigrants who,

according to the statutes, are required to be detained and deported will

certainly seek healthcare services from the State as well as educational

services. Thus, Texas is left with few alternatives regarding what to do with

these “de-prioritized” aliens otherwise subject to mandatory detention—

continue to incarcerate those with criminal convictions, or supervise them

rigorously, or provide state-sponsored healthcare and educational services to

the releasees. Texas has sufficiently established that these harms are

presently or imminently traceable to the Final Memo.

C. Redressability

Similarly unavailing is DHS’s contention that Texas’s injuries are not

redressable because “resource limitations preclude DHS from enforcing the

INA against all noncitizens.” The district court’s vacatur does not need to

operate on all aliens in Texas who are eligible for speedy removal. A court

order need only alleviate some of the state’s asserted harms. Sanchez v.

R.G.L., 761 F.3d 495, 506 (5th Cir. 2014) (“When establishing redressability,

a plaintiff need only show that a favorable ruling could potentially lessen its

injury; it need not definitively demonstrate that a victory would completely

remedy the harm.” (internal quotation marks omitted)). Texas’s costs

would be eased if DHS stopped rescinding detainers pursuant to the Final

Memo, and thus vacating the Final Memo would naturally redress Texas’s

harm to a meaningful degree.

II. Reviewability

DHS next articulates several theories that purport to deprive the

federal courts of the power to adjudicate the merits. First, it suggests, for the

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first time on appeal, that 8 U.S.C. § 1252(f)(1) deprives the district court of

jurisdiction to vacate the guidance. Second, it contends that the Final Memo

does not constitute final agency action, thus rendering it unreviewable by the

federal courts. Third, it asserts that the Final Memo represents decisions that

are committed to DHS’s discretion by law. Finally, it suggests that the States

fall outside of the INA’s “zone of interests.” Each point is likely to fail.

A. Section 1252(f)(1)

Section 1252(f)(1) strips the federal courts (other than the Supreme

Court) of jurisdiction to “enjoin or restrain the operation of” §§ 1221–1232

of the INA. The Supreme Court recently clarified that § 1252(f)(1)

“generally prohibits lower courts from entering injunctions that order federal

officials to take or to refrain from taking actions to enforce, implement, or

otherwise carry out the specified statutory provisions.” Garland v. Aleman

Gonzalez, No. 20-322, slip op. at 5 (U.S. June 13, 2022). There, the Court

interpreted § 1252(f)(1) to prevent a class of aliens who were detained

pursuant to 8 U.S.C. § 1231(a)(6) from obtaining class wide injunctive relief.

Id. at 2, 4. The Court held that the ordinary meaning of the statute “bars the

class-wide relief” sought. Id. at 4. DHS suggests that this holding applies

“with equal force to vacatur,” because such a vacatur “prohibits” DHS from

implementing the Final Memo and de facto “enjoin[s] or restrain[s]” the

agency’s enforcement decisions.

But DHS reads too much into the Aleman Gonzalez opinion. There

are meaningful differences between an injunction, which is a “drastic and

extraordinary remedy,” and vacatur, which is “a less drastic remedy.”

Monsanto Co. v. Geertson Seed Farms, 561 U.S. 139, 165, 130 S. Ct. 2743, 2761

(2010). The Supreme Court has indicated that § 1252(f) is to be interpreted

relatively narrowly. Indeed, the Court described § 1252(f) as “nothing more

or less than a limit on injunctive relief.” Reno v. Am.-Arab Anti-

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Discrimination Comm., 525 U.S. 471, 481, 119 S. Ct 936, 942 (1999). And

again, in a recent opinion, the Supreme Court reiterated this sentiment and

additionally noted that the title of the provision—“Limit on injunctive

relief”—clarified the “narrowness of its scope.” See Biden v. Texas, No. 21-

954, slip op. at *9, 12 (U.S. June 30, 2022) (“Texas MPP”). Extending

Aleman Gonzalez to vacatur is particularly dubious in light of the Court’s

caveats.

Additionally, a vacatur does nothing but re-establish the status quo

absent the unlawful agency action. Apart from the constitutional or statutory

basis on which the court invalidated an agency action, vacatur neither

compels nor restrains further agency decision-making. We decline to extend

Aleman Gonzalez to such judicial orders, especially when doing so would be

contrary to the “strong presumption favoring judicial review of

administrative action.” 8 Salinas v. U.S. R.R. Ret. Bd., 141 S. Ct. 691, 698

(2021). DHS is unlikely to demonstrate that this provision strips federal

court jurisdiction to vacate unlawful agency action.

B. Final Agency Action

Judicial review is available for “final agency action for which there is

no other adequate remedy in a court.” 5 U.S.C. § 704. “The Supreme Court

has long taken a pragmatic approach to finality, viewing the APA’s finality

requirement as flexible.” Texas v. EEOC, 933 F.3d 433, 441 (5th Cir. 2019)

(internal quotation marks omitted). To be “final,” (1) the action must

“mark the consummation of the agency’s decisionmaking process” and “it

must not be of a merely tentative or interlocutory nature;” additionally, (2) it

8

Not to mention the fact that the Supreme Court has previously affirmed the

vacatur of DHS’s recission of the Deferred Action for Childhood Arrivals program. Dep’t

of Homeland Sec. v. Regents of the Univ. of Cal., 140 S. Ct. 1891, 1916 (2020).

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must “be one by which rights or obligations have been determined, or from

which legal consequences will flow.” Bennett v. Spear, 520 U.S. 154, 177–78,

117 S. Ct. 1154, 1168–69 (1997) (internal quotation marks and citation

omitted). DHS does not dispute that its Final Memo was the

“consummation of the agency’s decisionmaking process,” only that the

memo entailed no legal consequences and created no rights or obligations.

Agency action satisfies the second requirement of Bennett “if it either

appears on its face to be binding or is applied by the agency in a way that

indicates it is binding.” EEOC, 933 F.3d at 441. Importantly here, the

withdrawal of previously articulated discretion is an action that “alters the

legal regime, binds the entity, and thus qualifies as final agency action.” Id.

(internal quotation marks omitted). Such a “withdrawal of discretion

distinguishes a policy statement—which leaves the agency the discretion and

the authority to change its position in any specific case and does not seek to

impose or elaborate or interpret a legal norm—from a final agency action.”

Id. (internal quotation marks omitted).

DHS asserts that the guidance in no way binds enforcement agents

and their superiors, but “simply ensures that discretion is exercised in an

informed way.” As the district court explained, the record plainly belies that

assertion.

First, ICE officers previously possessed the discretion to arrest and

detain aliens on the basis of a qualifying conviction or a final order of removal

alone, subject to mandatory statutory dictates. But the Final Memo

withdraws this discretion completely by prohibiting them to rely solely on a

statutorily qualifying conviction or removal order. It asserts: “The fact an

individual is a removable noncitizen therefore should not alone be the basis

of an enforcement action against them;” and DHS “personnel should not

rely on the fact of conviction or the result of a database search alone.” This

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withdrawal of discretion is reinforced by compulsory language used

throughout the Final Memo (i.e., “Again, our personnel must evaluate the

individual and the totality of the facts and circumstances and exercise their

judgment accordingly;” “Whether a noncitizen poses a current threat to

public safety is not to be determined according to bright lines or categories;”

“Agency leaders as to whom this guidance is relevant to their operations will

implement this guidance accordingly.”).

Second, the Final Memo implements various mechanisms to ensure

compliance, including “[e]xtensive training materials and a continuous

training program” in order to “ensure the successful application of this

guidance.” Additionally, all enforcement decisions are subject to “rigorous

review” during the first ninety days of implementation in order “to achieve

quality and consistency in decision-making across the entire agency.” After

the ninety days, “[l]onger-term review processes should be put in

place . . . drawing on lessons learned,” and “[a]ssessment of implementation

of this guidance should be continuous.” Accordingly, not only will ICE agents

be subject to “extensive” training on this guidance, but they will also have

superiors looking over their shoulders to ensure their compliance. Moreover,

the Final Memo now mandates the collection of “detailed, precise, and

comprehensive data as to every aspect of the enforcement actions [] take[n]

pursuant to th[e] guidance, both to ensure the quality and integrity of [the]

work and to achieve accountability for it.”

Third, other evidence confirms the Final Memo’s binding effect on

immigration enforcement. The Considerations Memo, circulated

contemporaneously with the Final Memo, asserted that “the new guidelines

will require the workforce to engage in an assessment of each individual case

and make a case-by-case assessment as to whether the individual poses a

public safety threat, guided by a consideration of aggravating and mitigating

factors.” When agents take an enforcement action, they must report it in a

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database and select which of the three priorities characterizes their actions.

The database makes clear that, besides the three priority categories, “‘Other’

Priority is no longer an option.” Agents must also certify that they have

faithfully considered “all relevant case specific information” as instructed by

the Final Memo before submitting their information. Thus, an enforcement

agent has no conscientious way to avoid the prioritization and special

procedures required by the Final Memo.

DHS’s insistence that agency-wide discretion remains intact as it was

before the Final Memo is untenable. We have no difficulty determining that

the Final Memo was a final agency action under § 704.

C. Committed to Agency Discretion

Agency action is not subject to judicial review if it “is committed to

agency discretion by law.” 5 U.S.C. § 701(a)(2). The Supreme Court has

“read th[is] exception in § 701(a)(2) quite narrowly, restricting it to ‘those

rare circumstances where the relevant statute is drawn so that a court would

have no meaningful standard against which to judge the agency’s exercise of

discretion.’” Weyerhaeuser Co. v. U.S. Fish & Wildlife Serv., 139 S. Ct. 361,

370 (2018) (quoting Lincoln v. Vigil, 508 U.S. 182, 191, 113 S. Ct. 2024, 2030–

31 (1993)). Seeking to squeeze the Final Memo within this narrow exception,

DHS contends that these are agency enforcement decisions, which are

“generally committed to an agency’s absolute discretion.” Heckler v.

Chaney, 470 U.S. 821, 831 (1985).

In the first place, it is unlikely that Heckler’s approval of prosecutorial

discretion applies to agency rules. 9 But even if it did, it would not insulate

9

See Texas v. Biden, 20 F.4th 928, 978–85 (5th Cir. 2021), as revised (Dec. 21, 2021),

rev’d on other grounds, No. 21-954, slip op. at *9, 12 (U.S. June 30, 2022). Notably, DHS

did not argue to the Supreme Court that Heckler barred judicial consideration of the rule

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this rule. The Court in Heckler expressly distinguished its holding from cases

involving the present circumstances. It emphasized:

Nor do we have a situation where it could justifiably be found

that the agency has consciously and expressly adopted a general

policy that is so extreme as to amount to an abdication of its statutory

responsibilities. Although we express no opinion on whether

such decisions would be unreviewable under § 701(a)(2), we

note that in those situations the statute conferring authority on

the agency might indicate that such decisions were not

“committed to agency discretion.”

470 U.S. at 833 n.4, 105 S. Ct. at 1656 n.4 (emphasis added). The Final

Memo does not represent a one-off enforcement decision, but rather a

calculated, agency-wide rule limiting ICE officials’ abilities to enforce

statutory law. As will be indicated below, DHS’s interpretation of the

governing statutes seems obviously inconsistent with their meaning as a

matter of linguistics, text, and context. This rule gives every indication of

being “a general policy that is so extreme as to amount to an abdication of its

statutory responsibilities.” Id. Accordingly, Heckler does not save the Final

Memo from judicial scrutiny.

But even in the unlikely event that Heckler bears on this rule, the Court

emphasized in its opinion that any enforcement discretion was not absolute.

Rather, “the presumption may be rebutted where the substantive statute has

provided guidelines for the agency to follow in exercising its enforcement

powers.” Heckler, 470 U.S. at 832–33, 105 S. Ct. at 1656. This makes sense.

Congress defines the scope of the agency’s discretion, and the Executive is

revoking the previous Administration’s Remain in Mexico policy. Yet it is hard to

distinguish these two cases from that standpoint.

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not able to use its discretion in order to thwart the boundaries of its authority.

As further explained below, 8 U.S.C. §§ 1226(c) and 1231(a) are such

substantive statutes that curb agency discretion as it pertains to this

particular rule. See Jennings v. Rodriguez, 138 S. Ct. 830, 837 (2018)

(“Section 1226(c) . . . carves out a statutory category of aliens who may not

be released under § 1226(a).”). For both these reasons, DHS is unlikely to

succeed on this point.

D. Zone of Interests

Congress has provided a cause of action under the APA for parties

whose alleged injury was “arguably within the zone of interests to be

protected or regulated by the statutes that the agencies were claimed to have

violated.” Collins v. Mnuchin, 938 F.3d 553, 574 (5th Cir. 2019), aff’d in part,

vacated in part, rev’d in part sub nom. Collins v. Yellen, 141 S. Ct. 1761 (2021)

(internal quotation marks omitted). But this requirement is not “especially

demanding” and “the benefit of any doubt goes to the plaintiff.” Id. (internal

quotation marks omitted). “The test forecloses suit only when a plaintiff's

interests are so marginally related to or inconsistent with the purposes

implicit in the statute that it cannot reasonably be assumed that Congress

intended to permit the suit.” Texas DAPA, 809 F.3d at 162 (internal

quotation marks omitted).

DHS contends that the States do not fall within the zone of interests

covered by §§ 1226(c) or 1231(a). But this final justiciability argument is also

foreclosed by precedent. This court holds that “[t]he interests the states

seek to protect fall within the zone of interests of the INA,” and two criminal

immigration statutes fall squarely within that interest. Id. at 163. The States

will have no trouble clearing this low bar on appeal.

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III. Legality of Agency Action

DHS’s three defenses of the Final Memo on its merits are also likely

to fail on final appellate consideration. We address each in turn.

A. Contrary to Law

A primary point of contention here is whether the Final Memo

conflicts with 8 U.S.C. §§ 1226(c) and 1231(a) by rendering optional what

the statutes make mandatory. Significantly, these provisions are

distinguishable from 8 U.S.C. § 1225(b), construed in Texas MPP, which

governs aliens apprehended at the U.S. border who claim asylum relief. The

relevant provisions here do not utilize discretionary language, unlike the

main provision in Texas MPP, § 1225(b)(2)(C). Additionally, unlike Section

1225(b), the instant provisions relate to the expedited removal of a small

subset of aliens who have been in the United States and fall into two

categories: (1) those who, having been convicted of certain enumerated

criminal offenses, are removable; and (2) those who, at the conclusion of

immigration proceedings, have become subject to final removal orders.

Accordingly, we determine that the Court’s statutory analysis in Texas MPP

does not foreclose the question presented to this court with respect to

§§ 1226(c) and 1231(a).

We begin with the plain language and structure of the statutes.

Section 1226(c) provides: “The Attorney General shall take into custody any

alien who” committed certain delineated crimes 10 “when the alien is

10

These crimes include aliens convicted of crimes of moral turpitude, aliens

convicted of drug offenses, aliens convicted of multiple offenses with an aggregate sentence

of confinement of five years or more, aliens who are traffickers of controlled substances,

aliens convicted of an aggravated felony, aliens who participate in the commercialized sex

industry, aliens who engaged in terrorist activity, aliens who served in foreign governments

and committed “particularly severe violations of religious freedom,” aliens who participate

in the human trafficking industry, aliens who engage in money laundering, and aliens

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released” from state or local custody. § 1226(c)(1) (emphasis added). There

is one, and only one, qualification to this mandatory provision, which

authorizes discretionary release of such an alien “only if” three things are

true—such release is “necessary to provide protection” for a witness or

cooperator; and the alien proves he will pose no danger to persons or property

and will appear for proceedings; and the release procedures must take into

account the severity of the alien’s offense. 11 To effectuate § 1226(c)’s arrest

and detention mandate, Congress also provided that the Attorney General

shall devise and implement a system to identify and track criminal aliens in

local, state, and federal custody. § 1226(d) (emphasis added).

Consequently, as the Supreme Court explained, “Section 1226(c)

mandates detention during removal proceedings for a limited class of

deportable aliens—including those convicted of an aggravated felony.”

Demore v. Kim, 538 U.S. 510, 517–18, 123 S. Ct. 1708, 1714 (2003). In Demore,

the Court thoroughly explained that § 1226(c) was enacted to redress

convicted of certain firearms offenses. 8 U.S.C. §§ 1182(a)(2), (a)(3)(B), 1226(c),

1227(a)(2)(A)–(D).

11

The provision states:

The Attorney General may release an alien described in paragraph (1) only

if the Attorney General decides pursuant to section 3521 of title 18 that

release of the alien from custody is necessary to provide protection to a

witness, a potential witness, a person cooperating with an investigation

into major criminal activity, or an immediate family member or close

associate of a witness, potential witness, or person cooperating with such

an investigation, and the alien satisfies the Attorney General that the alien

will not pose a danger to the safety of other persons or of property and is

likely to appear for any scheduled proceeding. A decision relating to such

release shall take place in accordance with a procedure that considers the

severity of the offense committed by the alien.

§ 1226(c)(2) (emphasis added).

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multiple problems attendant to flight and recidivism because the previous law

entitled criminal aliens to individualized bond or detention hearings, which

led to a high rate of releases. Id. at 518–20, 123 S. Ct. at 1714–16. Congress

was “concern[ed] that, even with individualized screening, releasing

deportable criminal aliens on bond would lead to an unacceptable rate of

flight.” Id. at 520, 123 S. Ct. at 1716. But, evidencing the sharply different

enforcement concerns between non-criminal aliens and criminal aliens,

Congress provided more discretion as it pertains to non-criminal aliens.

Section 1226(a), which applies to aliens “[e]xcept as provided in

[§ 1226(c)],” states that the Attorney General “may continue to detain the

arrested alien,” or “may release the alien on” bond or conditional parole.

§ 1226(a)(1)–(2) (emphasis added).

Closely related to § 1226(c) is § 1231(a), which provides that “when

an alien is ordered removed, the Attorney General shall remove the alien

from the United States within a period of 90 days.” § 1231(a)(1)(A)

(emphasis added). Further, “[d]uring the removal period, the Attorney

General shall detain the alien. Under no circumstance during the removal

period shall the Attorney General release an alien who has” been convicted

of enumerated crimes. 12 § 1231(a)(2) (emphasis added).

Under basic principles of statutory construction, different words are

accorded their “ordinary” meaning and the text of a statute must be

12

These include a crime of moral turpitude, a drug offense, drug trafficking, human

trafficking, multiple offenses with an aggregate sentence of confinement of five years or

more, prostitution, an aggravated felony, high speed flight from an immigration checkpoint,

failure to register as a sex offender, certain firearm offenses, crimes of domestic violence,

crimes against children, or who has engaged in terrorist activity. 8 U.S.C. §§ 1182(a)(2),

(a)(3)(B), 1226(c), 1227(a)(2), (a)(4)(B), 1231(a)(2).

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construed as a whole. 13 Nowhere do these principles make more sense than

in the juxtapositions of “shall” with “may” in the two provisions at issue

here. In fact, the Court has firmly warned that these terms should be afforded

different meanings, especially where both are used in the same statute. See,

e.g., Texas MPP, slip op. at *13–15 (holding that the “unambiguous, express

term ‘may’” does not mean “shall” and it was error for the lower court to

hold otherwise); Jama v. Immigr. & Customs Enf’t, 543 U.S. 335, 346,

125 S. Ct. 694, 703 (2005) (noting that it is error to read these two words

synonymously when both are used in the same statute). Indeed, the Supreme

Court has repeatedly interpreted both of these statutes to require mandatory

detention. 14 Johnson v. Guzman Chavez, 141 S. Ct. 2271, 2280–81 & n.2

(2021) (“During the removal period, detention is mandatory” under §

1231(a)(2), and “[f]or certain criminal aliens and aliens who have

connections to terrorism, detention is mandatory” under § 1226(c)); Nielsen

v. Preap, 139 S. Ct. 954, 959 (2019) (referring to § 1226(c) as a “mandatory-

detention requirement”); Jennings, 138 S. Ct. at 846 (noting that § 1226(c)

“mandates detention”); Zadvydas v. Davis, 533 U.S. 678, 683, 121 S. Ct.

2491, 2495 (2001) (“After entry of a final removal order and during the 90–

day removal period, however, aliens must be held in custody” under

§ 1231(a)(2)); Demore, 538 U.S. at 517–18, 123 S. Ct. at 1714 (2003)

(“Section 1226(c) mandates detention during removal proceedings for a

limited class of deportable aliens.”).

13

ANTONIN SCALIA & BRYAN A GARNER, READING LAW: THE INTERPRETATION

OF LEGAL TEXTS § 24, p. 167 (2012).

14

DHS tries to distinguish these cases as involving individual aliens seeking relief.

This makes no sense. A straightforward statutory dictate does not modulate from

mandatory to permissive based on the particulars of the given case.

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The parallel treatment of mandatory and precatory terms indicates

conscious choices by Congress. DHS does not dispute that “shall” typically

represents mandatory language and that “may” “clearly connotes”

discretion. Texas MPP, slip op. at 13 (quoting Opati v. Republic of Sudan, 140

S. Ct. 1601, 1603 (2020)). See also Maine Cmty. Health Options v. United

States, 140 S. Ct. 1308, 1320 (2020) (“Unlike the word ‘may,’ which implies

discretion, the word ‘shall’ usually connotes a requirement.”).

Nevertheless, citing Town of Castle Rock, Colo. v. Gonzales, 545 U.S. 748,

125 S. Ct. 2796 (2005), DHS contends that there must be clear legislative

intent, beyond the word “shall,” that the legislature intended to overcome

the agency’s established discretion. Specifically, DHS argues that Castle

Rock’s holding that “[t]he deep-rooted nature of law-enforcement

discretion” may trump “seemingly mandatory legislative commands”

overcomes the plain meaning of the term “shall” in the instant provisions.

Id. at 761, 125 S. Ct. 2796.

But Castle Rock does not apply here for at least two reasons. First,

Castle Rock is distinguishable on its facts. There, the Court determined that

the plaintiff did not have a protected property interest in the enforcement of

the terms of her restraining order by the state police for purposes of the Due

Process Clause. 545 U.S. at 755, 125 S. Ct. at 2803. Colorado law did not

make enforcement of restraining orders mandatory, irrespective of the use of

the term “shall,” and thus there was no general entitlement to enforcement

of such restraining orders. Id. at 760-68, 125 S. Ct. at 2805–2809. It is a far

stretch of this precedent to extend it from individualized decisions made by

police officers to agency-wide decisions made by DHS. It is even more of a

stretch when, as just explained, the statutory language seems

incontrovertibly mandatory. Indeed, the Supreme Court has never applied

Castle Rock to federal agency action, and Fifth Circuit precent has only

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applied it to federal agency action where a statutory scheme expressly

rendered the agency action discretionary. 15

Second, the limitless principle of law that DHS would have us draw

from Castle Rock is untenable and wholly unsupported. DHS effectively

seeks a reading of Castle Rock that would insulate agency action that in any

way relates to enforcement duties, despite the plain language of the INA.

Nothing in Castle Rock compels that conclusion. The ruling there was based,

not on a police department-wide policy of not enforcing restraining orders,

but rather an individualized instance of nonenforcement. The Final Memo,

however, is much more than a singular nonenforcement decision. It is an

agency-wide mandate that strips from ICE agents their once-held discretion

and subjects all enforcement decisions to strict oversight in express

derogation of the governing statutes. Castle Rock does not compel us to

ignore the plain text of the INA for such agency action. DHS is not likely to

succeed on this crucial point.

We are additionally disturbed by certain aspects of the Considerations

Memo, which purports to summarize and provide context to the Final

Memo. In more ways than one, the Considerations Memo compels officials

to comply with the Final Memo by utilizing prosecutorial discretion in a

manner that violates statutory law. For example, it provides that the

guidelines “are essential to advancing this Administration’s stated

commitment to advancing equity for all, including people of color and others

who have been historically underserved, marginalized, and adversely affected

by persistent poverty and inequality.” DHS’s replacement of Congress’s

statutory mandates with concerns of equity and race is extralegal, considering

15

Ridgely v. FEMA, 512 F.3d 727, 735–36 (5th Cir. 2008) (holding that the statutes

and regulations governing Federal Emergency Management Agency did not create a

property interest in enforcement where “mandatory language is wholly absent”).

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that such policy concerns are plainly outside the bounds of the power

conferred by the INA. Similarly, the Considerations Memo explains that, in

identifying those who are a threat to public safety, DHS “chose to place

greater emphasis on the totality of the facts and circumstances” instead of

identifying this group categorically. But DHS simply lacks the authority to

make that choice when the statutes plainly mandate such categorical

treatment. This is especially troubling in light of the fact that Congress

attempted to prohibit such individualized consideration when it enacted §

1226(c) because the previous policy led to unacceptably high rates of criminal

alien flight. Demore, 538 U.S. at 518–20, 123 S. Ct. at 1714–16. Thus, the

Consideration Memo further confirms what the Final Memo says for itself—

that it represents a disingenuous attempt on behalf of DHS to claim it acts

within the bounds of federal law while practically disregarding that law.

B. Arbitrary & Capricious

Courts are compelled to “hold unlawful and set aside agency

action[s]” that are “arbitrary, capricious, an abuse of discretion, or otherwise

not in accordance with law.” 5 U.S.C. § 706(2). While a reviewing court

must not “substitute” its “own policy for that of the agency” and must apply

this standard deferentially, the agency action must still “be reasonable and

reasonably explained.” FCC v. Prometheus Radio Project, 141 S. Ct. 1150, 1158

(2021). This court “must set aside any action premised on reasoning that

fails to account for relevant factors or evinces a clear error of judgment.”

Univ. of Tex. M.D. Anderson Cancer Ctr. v. HHS, 985 F.3d 472, 475 (5th Cir.

2021) (quotation omitted). Arbitrary and capricious review “is not

toothless.” Sw. Elec. Power Co. v. EPA, 920 F.3d 999, 1013 (5th Cir. 2019).

“In fact, after Regents, it has serious bite.” Wages & White Lion Invs., LLC v.

FDA, 16 F.4th 1130, 1136 (5th Cir. 2021). “[A]n agency’s action must be

upheld, if at all, on the basis articulated by the agency itself,” not reasons

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developed post hoc. Motor Vehicle Mfrs. Ass’n of U.S., Inc. v. State Farm Mut.

Auto. Ins. Co., 463 U.S. 29, 50, 103 S. Ct. 2856, 2870 (1983).

DHS contends that the Considerations Memo expresses the basis for

the Final Memo and is intended to supplement it. Upon examining the

Considerations Memo, the district court found that DHS failed to adequately

consider the high chances of recidivism and absconding within the relevant

class of aliens as well as the costs or reliance interests of the States. On the

other hand, DHS argues that the Considerations Memo sufficiently

addresses these factors to satisfy the arbitrary/capricious standard.

The Considerations Memo states that the “public safety” factors

“are to be weighed in each case to assess whether a noncitizen poses a current

threat to public safety, including through a meaningful risk of recidivism.” DHS

contends that this illustrates that the agency considered recidivism, and it

was not required to support its position with “empirical or statistical

studies.” Prometheus, 141 S. Ct. at 1160. But that is beside the point. The

district court did not hold that the agency failed to consider recidivism at all.

To the contrary, the court concluded that DHS failed to consider recidivism

among the relevant population at issue in this case—“aliens who have been

convicted of or are implicated in serious crime and aliens who have received

a final order of removal.” Those are the aliens covered by § 1226(c) 16 or

§ 1231(a)(2). While the Considerations Memo generally relies on studies

about criminality among all aliens, those studies did not account for

potentially higher rates of recidivism among those “who have already been

convicted of a serious crime.”

16

In fact, Congress was especially concerned with the serious harms repeat

criminal aliens may cause if not detained when it passed § 1226(c). Demore v. Kim, 538

U.S. 510, 518–20 (2003).

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DHS does not assert that general alien criminality can substitute for

data concerning the subset of convicted aliens. In fact, in 2019, DHS itself

acknowledged that criminal aliens recidivate and abscond at higher rates:

Of the 123,128 ERO administrative arrests in FY 2019 with

criminal convictions or pending criminal charges, the criminal

history for this group represented 489,063 total criminal

convictions and pending charges as of the date of arrest, which

equates to an average of four criminal arrests/convictions per alien,

highlighting the recidivist nature of the aliens that ICE arrests.

Yet this actual differential between the general population and the serious

previous offender population receives no mention in the Considerations

Memo. And it undoubtedly should have, because repeat illegal alien

offenders inflict considerable damage on innocent American citizens. On this

record, DHS is unlikely to succeed in demonstrating that it considered “the

relevant data” and drew a “rational connection between the facts found and

the choice made.” State Farm, 463 U.S. at 43, 103 S. Ct. at 2866 (internal

quotation marks omitted).

We next address the costs of this rule to the States and their reliance

interests. “When an agency changes course, as DHS did here, it must ‘be

cognizant that longstanding policies may have engendered serious reliance

interests that must be taken into account.’” Dep’t of Homeland Sec. v. Regents

of the Univ. of California, 140 S. Ct. 1891, 1913 (2020) (quoting Encino

Motorcars, LLC v. Navarro, 579 U.S. 211, 212, 136 S. Ct. 2117, 2120 (2016)).

Failure to do so is fatal. DHS contends that a multi-page section in the

Considerations Memo analyzing the “Impact on States” demonstrates that

it adequately considered these interests before circulating the Final Memo.

The district court found, however, that this analysis merely paid “lip service

to the States’ concerns.”

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We are troubled by DHS’s dismissive analysis, which dots “i’s” and

crosses “t’s” without actually saying anything. For example, DHS

minimizes the influence of its policy on the States as maybe having some

“downstream impacts.” The Considerations Memo then states that it

“cannot provide an exhaustive analysis of all of these potential impacts every

time it adopts a change in immigration policy.” Rather, it claims that any

such “assessment” would be “uniquely difficult to conclude with certainty,”

so it simply does not bother. Yet, after explicitly declining to quantify or at

least reasonably describe the costs of this policy to the States, the agency

audaciously concludes that “any effects from implementation of priorities

guidance are unlikely to be significant, and could have a net positive effect.”

As to the States’ reliance interests, the Considerations Memo flatly

concludes that “no such reasonable reliance interests exist.” In a single

paragraph citing no evidence, DHS concluded that the States, including

Texas as a 900-mile border state, has no reliance interests in the enforcement

of federal criminal immigration law according to the governing statutes. 17

This omission is more inexcusable since the States have consistently asserted

their reliance interests in the context of this litigation, which has been

ongoing simultaneously with DHS’s promulgation of the Final Memo and

the Considerations Memo. “Stating that a factor was considered . . . is not

a substitute for considering it.” Getty v. Fed. Sav. & Loan Ins. Corp., 805 F.2d

1050, 1055 (D.C. Cir. 1986). Rather, courts “must make a searching and

careful inquiry to determine if [the agency] actually did consider it.” Id.

(internal quotation marks omitted). At this point, DHS has not shown a

likelihood that it adequately considered the relevant costs to the States or

their reliance interests in the pre-existing enforcement policy.

17

But see supra note 4.

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C. Procedural Invalidity

Under the APA, rules must be subject to notice-and-comment

rulemaking unless they fall within one of the APA’s exceptions.

5 U.S.C. § 553(b)(A). Such exceptions “must be narrowly construed.”

Texas DAPA, 809 F.3d at 171 (internal quotation marks omitted). DHS

contends that its rule does not need to be subject to notice-and-comment

rulemaking because it qualifies as a general statement of policy, which merely

“advise[s] the public prospectively of the manner in which the agency

proposes to exercise a discretionary power.” Lincoln v. Vigil, 508 U.S. 182,

197, 113 S. Ct. 2024, 2034 (1993) (internal quotation marks omitted). To

determine whether a rule is merely a “policy statement,” we evaluate two

criteria: “whether the rule (1) imposes any rights and obligations and (2)

genuinely leaves the agency and its decision-makers free to exercise

discretion.” Texas DAPA, 809 F.3d at 171 (internal quotation marks

omitted). “While mindful but suspicious of the agency’s own

characterization, we focus primarily on whether the rule has binding effect

on agency discretion or severely restricts it.” Id. (internal quotation marks

and alterations omitted).

As described above, the Final Memo overwhelmingly satisfies both

criteria. Both the language found within and the mechanisms of

implementing it establish that it is indeed binding, thus removing DHS

personnel’s discretion to stray from the guidance or take enforcement action

against an alien on the basis of a conviction alone. For the same reasons

articulated supra Section II.B, the Final Memo is much more substantive than

a general statement of policy and, as such, it had to undergo notice and

comment procedures. Because it did not, DHS is unlikely to be successful in

establishing that the Final Memo need not have been subject to notice and

comments before its promulgation.

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IV. Remaining Stay Factors

DHS’s case on the merits is sufficiently weak to justify denying a stay on

that basis alone. But we briefly note our skepticism about DHS’s allegations

of “confusion” and the potential “waste” of “resources” that would result

from our allowing the vacatur go into effect. Despite the administrative

inconvenience caused by this litigation, DHS has no “interest in the

perpetuation of unlawful agency action.” League of Women Voters of United

States v. Newby, 838 F.3d 1, 12 (D.C. Cir. 2016). “To the contrary, there is a

substantial public interest ‘in having governmental agencies abide by the

federal laws that govern their existence and operations.’” Id. (quoting

Washington v. Reno, 35 F.3d 1093, 1103 (6th Cir. 1994)). Furthermore,

“there is always a public interest in prompt execution of removal orders, and

that interest may be heightened by circumstances such as a particularly

dangerous alien.” Nken v. Holder, 556 U.S. 418, 129 S. Ct. 1749, 1753 (2009)

(internal quotation marks, citation, and alterations omitted). Because the

prevention of agency abuse overcomes other factors, none of those counsel

in favor of granting DHS’s stay. 18

V. Arizona v. Biden

That this decision departs from the Sixth Circuit’s recent opinion in

Arizona v. Biden is readily explicable. In that case, the states of Arizona,

Montana, and Ohio brought a nearly identical challenge to the Final Memo

and DHS sought a stay of the district court’s nationwide preliminary

injunction. Arizona v. Biden, 31 F.4th 469, 472 (6th Cir. 2022). The Sixth

18

We further reject DHS’s contention that the nationwide vacatur is overbroad.

In the context of immigration law, broad relief is appropriate to ensure uniformity and

consistency in enforcement. Furthermore, “[t]here is a substantial likelihood that a

geographically-limited injunction would be ineffective because [criminal aliens not subject

to enforcement] would be free to move among states.” Texas DAPA, 809 F.3d at 188.

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Case: 22-40367 Document: 00516384389 Page: 32 Date Filed: 07/06/2022

No. 22-40367

Circuit ruled differently on several dispositive issues, but our differences

result from two factors.

Unlike the Sixth Circuit, this court has developed precedent that

predetermines many of our conclusions. See Texas DAPA, 809 F.3d at 134.

As to issues raised by DHS that are not foreclosed by circuit precedent, we

disagree with our sister circuit’s legal conclusions for the reasons articulated

above. Importantly, the Sixth Circuit found the factual record before it

insufficient to support the states’ standing. Arizona, 31 F.4th at 481–82

(“The States do not suggest that the agency had to calculate the costs of its

Guidance on States, and the States themselves have not offered any concrete

evidence of the Guidance’s fiscal effects on each of them.”). This court’s

appellate consideration, in contrast, has been significantly assisted by the

district court’s fulsome fact-findings based on a comprehensively tried case.

Facts pertinent to standing and to the administrative issues raised by DHS

are not wanting in the record before us.

Until there is a contrary ruling from the Supreme Court, we adhere to

our precedent and the facts found by the district court.

CONCLUSION

For the foregoing reasons, the motion for a stay pending appeal is

DENIED.

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