Application — United States, et al., Petitioners v. Texas, et al.
Supreme Court briefJul 8, 2022
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APPENDIX
Court of appeals order denying stay pending
appeal (5th Cir. July 6, 2022) ............................ 1a
District court order denying stay pending appeal
and extending administrative stay
(S.D. Tex. June 14, 2022) ................................ 33a
District court opinion and order granting
vacatur (S.D. Tex. June 10, 2022) ........................ 38a
District court final judgment
(S.D. Tex. June 10, 2022) ............................... 134a
Guidelines for the Enforcement of Civil
Immigration Law (September 30, 2021) .................... 136a
Significant Considerations in Developing Updated
Guidelines for the Enforcement of Civil
Immigration Law (September 30, 2021) .................... 143a
Declaration of Daniel Bible (June 13, 2022) ............... 164a
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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 succeed 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 quasisovereign 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.”
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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. 21954, 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.
1227(a)(2)(A)–(D).
11
8 U.S.C. §§ 1182(a)(2), (a)(3)(B), 1226(c),
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 “mandatorydetention 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.
30
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No. 22-40367
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.
31
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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.
32
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33a
United States District Court
Southern District of Texas
ENTERED
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF TEXAS
VICTORIA DIVISION
§
§
§
Plaintiffs,
§
§
v.
§
§
The UNITED STATES OF AMERICA;
§
ALEJANDRO MAYORKAS, Secretary
§
of the United States Department of
§
Homeland Security, in his official
§
capacity; 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; U.S. CUSTOMS AND BORDER §
PROTECTION; TAE JOHNSON, Acting §
Director of U.S. Immigration and
§
Customs Enforcement, in his official
§
capacity; U.S. 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; and U.S.
§
CITIZENSHIP AND IMMIGRATION
§
SERVICES,
§
§
Defendants.
§
June 14, 2022
Nathan Ochsner, Clerk
The STATE OF TEXAS and the
STATE OF LOUISIANA,
Civil Action No. 6:21-CV-00016
ORDER
Pending before the Court is the Government’s Emergency Motion for Stay
Pending Appeal and Continued Administrative Stay. (Dkt. No. 244). On June 10, 2022
the Court entered a seven day administrative stay to allow the Government to seek
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34a
further relief at the appellate level. (Dkt. No. 240 at 96); (Dkt. No. 241). The Government
filed a Notice Appeal on June 13, 2022.
The Court has reviewed the Government’s Motion, the States’ Response, (Dkt. No.
245), and the Government’s Reply, (Dkt. No. 246). The Court finds that the Government
offers no new arguments related to this Court’s entry of a stay, with one exception: the
Supreme Court’s decision yesterday in Garland v. Aleman Gonzalez, which discusses 8
U.S.C. § 1251(f)(1). For the reasons discussed below, the Court is of the opinion that
Garland v. Aleman Gonzalez offers no basis for extending the stay or altering the Court’s
decision on the merits. Even so, the Court will EXTEND the administrative stay an
additional seven days to June 24, 2022, so that the Fifth Circuit may have sufficient time
to consider any emergency relief sought by the Government.
DISCUSSION
The Government argues that Section 1251(f)(1) constitutes a jurisdictional bar in
this case, as it did in Aleman Gonzalez. See (Dkt. No. 244 at 3–4) (citing Garland v. Aleman
Gonzalez, 596 U.S. ____, No. 20-322, slip op. at 5 (2022)). The Government further argues
that Aleman Gonzalez’s reasoning as to injunctions applies equally to vacatur of a rule
under the Administrative Procedure Act, relying on Section 1252(f)(1)’s limit on lower
courts’ jurisdiction to “enjoin or restrain the operation of” the covered provisions of
the INA. 8 U.S.C. § 1252(f)(1). The States respond that Aleman Gonzalez only applies to
injunctive relief. (Dkt. No. 245 at 2–4).
Case 6:21-cv-00016 Document 248 Filed on 06/14/22 in TXSD Page 3 of 5
35a
Section 1252(f) is titled “Limit on injunctive relief.”1 8 U.S.C. § 1252(f). In Aleman
Gonzalez, the Supreme Court noted that 8 U.S.C. § 1252(f)(1) “strips lower courts of
jurisdiction or authority to enjoin or restrain the operation of the relevant statutory
provisions.” Aleman Gonzalez, No. 20-322, slip op. at 4 (internal quotations omitted)
(emphasis added). After analyzing the statute, the Supreme Court concluded that lower
courts are prohibited “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.” Id. at 5. It is for this reason that the Supreme Court in Aleman
Gonzalez held that Section 1252(f) deprived the district courts of jurisdiction to award
class-wide injunctive relief. Id. at 1, 11.
The Court concludes Aleman Gonzalez is inapplicable for at least three main
reasons. First, Aleman Gonzalez does not apply to this case because this Court did not
enter an injunction. See id. at 7 n.2. Instead, the only relief granted was vacatur of the
rule. (Dkt. No. 240 at 91 n.69, 94, 96). Indeed, the Supreme Court has noted the distinction
between vacatur and injunctive relief, describing vacatur as “a less drastic remedy” than
“the additional and extraordinary relief” of an injunction. Monsanto Co. v. Geertson Seed
Farms, 561 U.S. 139, 165–66, 130 S.Ct. 2743, 2761, 177 L.Ed.2d 461 (2010). And Aleman
1
Section 1252(f)(1) provides in full:
Regardless of the nature of the action or claim or of the identity of the party or
parties bringing the action, no court (other than the Supreme Court) shall have
jurisdiction or authority to enjoin or restrain the operation of the provisions of
part IV of this subchapter, as amended by the Illegal Immigration Reform and
Immigrant Responsibility Act of 1996, other than with respect to the application
of such provisions to an individual alien against whom proceedings under such
part have been initiated.
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Gonzalez did not disturb the Supreme Court’s prior holding that Section 1252(f) “[b]y its
plain terms, and even by its title, . . . is nothing more or less than a limit on injunctive
relief.” Reno v. Am.-Arab Anti-Discrimination Comm., 525 U.S. 471, 481, 119 S.Ct. 936, 942,
142 L.Ed.2d 940 (1999) (emphasis added); see also Jennings v. Rodriguez, ____ U.S. ____,
____, 138 S.Ct. 830, 851, 200 L.Ed.2d 122 (2018) (“Section 1252(f)(1) thus prohibits federal
courts from granting classwide injunctive relief[.]” (cleaned up) (emphasis added)).
Second, vacatur of the Final Memorandum in this case is not implicated by the
Supreme Court’s holding or reasoning in Aleman Gonzalez because vacatur under the
Administrative Procedure Act does not “enjoin or restrain the operation of” Sections 1226
or 1231.
See 8 U.S.C. § 1252(f)(1).
In fact, the Court preemptively explained this
distinction in its Memorandum Opinion and Order. (Dkt. No. 240 at 94 n.71) (citing
Capital Area Immigrants’ Rights Coal. v. Trump, 471 F. Supp. 3d 25, 60 (D.D.C. 2020)).
Finally, reading Aleman Gonzalez as the Government does is not only an incorrect
interpretation of that case, but it would likely insulate virtually every rule related to the
INA from judicial review. Such a result is inconsistent with the Fifth Circuit’s explicit
rejection of the Government’s claimed authority to have “unreviewable and unilateral
discretion to ignore statutory limits imposed by Congress and to remake entire titles of
the United States Code to suit the preferences of the executive branch.” Texas v. Biden,
20 F.4th 928, 1004 (5th Cir. 2021), cert. granted, 142 S.Ct. 1098, 212 L.Ed.2d 1 (2022).
CONCLUSION
Notwithstanding the foregoing, the Court hereby EXTENDS the administrative
stay of the Final Judgment, (Dkt. No. 241), an additional seven days to June 24, 2022, for
Case 6:21-cv-00016 Document 248 Filed on 06/14/22 in TXSD Page 5 of 5
37a
the sole purpose of providing the Fifth Circuit sufficient time to decide whether an
additional stay should be entered. The Court DENIES all other requested relief.
It is SO ORDERED.
Signed on June 14, 2022.
___________________________________
DREW B. TIPTON
UNITED STATES DISTRICT JUDGE
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38a
United States District Court
Southern District of Texas
ENTERED
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF TEXAS
VICTORIA DIVISION
§
§
§
Plaintiffs,
§
§
v.
§
§
The UNITED STATES OF AMERICA;
§
ALEJANDRO MAYORKAS, Secretary
§
of the United States Department of
§
Homeland Security, in his official
§
capacity; 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; U.S. CUSTOMS AND BORDER §
PROTECTION; TAE JOHNSON, Acting §
Director of U.S. Immigration and
§
Customs Enforcement, in his official
§
capacity; U.S. 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; and U.S.
§
CITIZENSHIP AND IMMIGRATION
§
SERVICES,
§
§
Defendants.
§
June 10, 2022
Nathan Ochsner, Clerk
The STATE OF TEXAS and the
STATE OF LOUISIANA,
Civil Action No. 6:21-CV-00016
MEMORANDUM OPINION AND ORDER
This case is the culmination of a series of challenges to immigration-related
memoranda issued within the Department of Homeland Security. The legal issues are
varied and complicated. But the core of the dispute is whether the Executive Branch may
Case 6:21-cv-00016 Document 240 Filed on 06/10/22 in TXSD Page 2 of 96
39a
require its officials to act in a manner that conflicts with a statutory mandate imposed by
Congress. It may not.
This past September, the Secretary of the Department of Homeland Security issued
a rule—self-styled as a memorandum—governing civil immigration enforcement. The
States of Texas and Louisiana say this memorandum conflicts with detention mandates
under federal law. The Federal Government, in response, tries to reconcile the apparent
contradiction between its memorandum and federal law. The Federal Government’s
explanations fall short.
Lawmaking is vested by the People in Congress. Congress has long used its
legislative power to craft immigration law which will ultimately be enforced by the
Executive Branch.
The Executive Branch’s statutorily authorized discretion on civil
immigration enforcement has historically ebbed and flowed. In the 1990s, Congress
reigned in the Executive Branch’s discretion by mandating detention of criminal aliens1
or aliens with final orders of removal. The wisdom of the statute passed by Congress and
signed into law by the President has no bearing here. The passions of the present
sometimes conflict with the views of the past. But the law remains unless it is repealed
or replaced. And the two statutes at issue in this case are still the law of the land.
1
“Criminal alien” is the term used by Congress in the statute. 8 U.S.C. § 1226(c); see also
Johnson v. Guzman Chavez, ____ U.S. ____, ____ n.2, 141 S.Ct. 2271, 2280 n.2, 210 L.Ed.2d 656 (2021)
(discussing detention of “certain criminal aliens” under Section 1226(c)). When used in this
opinion, the Court refers to criminal aliens as those who have committed the offenses articulated
in the statute.
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That brings us to the relevant immigration statutes. This case is not about aliens
in general, or even aliens who are in the United States illegally. Sections 1226(c) and
1231(a)(2) of Title 8 of the United States Code state that the Executive Branch “shall”
detain aliens convicted of specific types of crimes or who have final orders of removal.
The Federal Government acknowledges that some immigration statutes mandate
detention. But it disputes that Sections 1226(c) and 1231(a)(2) are among those statutes.
In support, the Federal Government offers an implausible construction of federal law that
flies in the face of the limitations imposed by Congress. It also invokes discretion and
prioritization in an effort to evade meaningful judicial review.
True, the Executive Branch has case-by-case discretion to abandon immigration
enforcement as to a particular individual.
This case, however, does not involve
individualized decisionmaking. Instead, this case is about a rule that binds Department
of Homeland Security officials in a generalized, prospective manner—all in
contravention of Congress’s detention mandate.
It is also true that the Executive Branch may prioritize its resources. But it must
do so within the bounds set by Congress. Whatever the outer limits of its authority, the
Executive Branch does not have the authority to change the law.
Using the words “discretion” and “prioritization,” the Executive Branch claims the
authority to suspend statutory mandates.
The law does not sanction this approach.
Accepting the Executive Branch’s position would have profound consequences for the
separation of powers.
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It is worth repeating that the Federal Government agrees that certain immigration
statutes contain mandatory detention provisions. The question, then, is whether the
statutes here are mandatory. The answer is yes: Sections 1226(c) and 1231(a)(2) mandate
detention. All of this matters because the Administrative Procedure Act compels federal
courts to set aside agency rules that are contrary to law, are arbitrary and capricious, or
failed to observe the requisite procedure. After a trial on the merits, the States have
shown that the Secretary’s memorandum is all three. For the reasons that follow, the
Court vacates the memorandum.2
2
The Court understands that some may find the terms “alien” and “illegal alien”
offensive, and the Court’s intent is certainly not to offend. These terms are used in this opinion
because they are contained in the statutes as well as official government documents quoted by
the Supreme Court in a seminal immigration case. See Arizona v. United States, 567 U.S. 387, 397,
132 S.Ct. 2492, 2500, 183 L.Ed.2d 351 (2012). Moreover, “alien” and “immigrant” are different and
defined statutory terms. Compare 8 U.S.C. § 1101(a)(3) with Id. § 1101(a)(15). Furthermore, the
Fifth Circuit explained why “illegal alien” is a preferable (and not pejorative) term in a case like
this:
The usual and preferable term in [American English] is illegal alien. The other
forms have arisen as needless euphemisms, and should be avoided as neargobbledygook. The problem with undocumented is that it is intended to mean,
by those who use it in this phrase, “not having the requisite documents to enter
or stay in the country legally.” But the word strongly suggests “unaccounted
for” to those unfamiliar with this quasi-legal jargon, and it may therefore
obscure the meaning.
More than one writer has argued in favor of undocumented alien . . . [to] avoid[ ]
the implication that one’s unauthorized presence in the United States is a crime
. . . . Moreover, it is wrong to equate illegality with criminality, since many
illegal acts are not criminal. Illegal alien is not an opprobrious epithet: it
describes one present in a country in violation of the immigration laws (hence
“illegal”).
Texas v. United States, 809 F.3d 134, 148 n.14 (5th Cir. 2015) (quoting Bryan A. Garner, Garner’s
Dictionary of Legal Usage 912 (Oxford 3d ed. 2011)); see also Matthew R. Salzwedel, The Lawyer’s
Struggle to Write, 16 Scribes Journal of Legal Writing 69, 76 (2015) (“[I]llegal alien has going for it
both history and well-documented, generally accepted use.”).
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FINDINGS OF FACT
I.
The Court finds that the following facts have been established by a preponderance
of the evidence.3
A.
THE PARTIES
1.
The States of Texas and Louisiana are the plaintiffs in this case.
2.
Defendant Alejandro Mayorkas is the Secretary of the United States
Department of Homeland Security (“DHS”). He issued and currently administers the
memorandum titled Guidelines for the Enforcement of Civil Immigration Law (the “Final
Memorandum”). (Dkt. No. 109-5 at 2–8).
3.
Defendant DHS implemented the Final Memorandum, which became
effective on November 29, 2021. (Id. at 7).
4.
DHS oversees Defendants United States Citizenship and Immigration
Services (“USCIS”), United States Customs and Border Protection (“CBP”), and United
States Immigration and Customs Enforcement (“ICE”).
5.
Defendant Troy Miller is the Deputy Commissioner of CBP.
6.
Defendant Tae Johnson is the Acting Director of ICE.
7.
Defendant Tracy Renaud is currently employed by USCIS and has worked
in various capacities, including as the Acting Director of USCIS.
B.
THE RELEVANT STATUTES
8.
Certain statutes are at issue in this case. The first is 8 U.S.C. § 1226(c).
Paragraph 1 of that subsection states:
(1) Custody
The Attorney General shall take into custody any alien
who—
(A) is inadmissible by reason of having committed any
offense covered in section 1182(a)(2) of this title,
3
The Court consolidated the hearing on the States’ Motion to Postpone the Effective Date
of Agency Action or, in the Alternative, for Preliminary Injunction with the trial on the merits in
this case. See Fed. R. Civ. P. 65(a)(2).
Case 6:21-cv-00016 Document 240 Filed on 06/10/22 in TXSD Page 6 of 96
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(B) is deportable by reason of having committed any
offense covered in section 1227(a)(2)(A)(ii), (A)(iii), (B),
(C), or (D) of this title,
(C) is deportable under section 1227(a)(2)(A)(i) of this
title on the basis of an offense for which the alien has
been sentence [sic] to a term of imprisonment of at least
1 year, or
(D) is inadmissible under section 1182(a)(3)(B) of this
title or deportable under section 1227(a)(4)(B) of this
title,
when the alien is released, without regard to whether the
alien is released on parole, supervised release, or probation,
and without regard to whether the alien may be arrested or
imprisoned again for the same offense.
8 U.S.C. § 1226(c)(1).
9.
Paragraph 2 of that subsection states:
(2) Release
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.
8 U.S.C. § 1226(c)(2).
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44a
10.
This case also implicates 8 U.S.C. § 1231. The relevant portions of that
statute state:
Except as otherwise provided in this section, when an alien is
ordered removed, the Attorney General shall remove the
alien from the United States within a period of 90 days (in this
section referred to as the “removal period”).
8 U.S.C. § 1231(a)(1)(A).
During 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
found inadmissible under section 1182(a)(2) or 1182(a)(3)(B)
of this title or deportable under section 1227(a)(2) or
1227(a)(4)(B) of this title.
Id. § 1231(a)(2).
C.
CIVIL IMMIGRATION ENFORCEMENT PRINCIPLES
11.
Enforcement of U.S. immigration law by United States executive branch
agencies such as USCIS, CBP, ICE, and DHS (“Immigration Enforcement Authorities”) is
also at issue in this case.
12.
In light of resource constraints, Immigration Enforcement Authorities must
decide how to focus their immigration enforcement actions. This is done regardless of
whether there is express agency-wide guidance or not.4 (Dkt. No. 146-2 at 1); (Dkt. No.
146-3 at 4); (Dkt. No. 146-7 at 2).
13.
Since it began operations in 2003, DHS has never apprehended and
removed all removable aliens.
14.
As of August 2021, the Enforcement and Removal Operations (“ERO”)
division of ICE had approximately 34,000 detention beds nationwide. (Dkt. No. 153-21
at 15).
15.
At these resource levels, it would be impossible to detain all aliens covered
in Section 1226(c) or Section 1231(a)(2) at one time. (Dkt. No. 153-21 at 14–16).
4
Throughout this opinion, all docket-entry cites are to the ECF-imposed “Page ID.”
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45a
16.
Despite this, DHS has requested a dramatic reduction in detention bed
5
capacity. Most recently, DHS’s 2023 budget request asks for a reduction to 25,000
detention beds. This amounts to a requested reduction of 26% over the course of the two
years of the current administration. DHS’s 2023 budget request also seeks to eliminate
funding for family detention beds.
17.
ICE has also persistently underutilized its existing resources since 2021. For
example, an April 2022 Office of Inspector General Report regarding one of ICE’s outside
contractors found that “none of the [contractor’s] facilities used more than half of the
number of beds ICE paid for under its contract. For example, usage ranged from an
average of 21 percent at one hotel in El Paso to an average of 45 percent at one hotel in
Phoenix. As a result, ICE spent $16.98 million[] for unused beds at the hotels between
April and June 2021.”6
18.
DHS’s detention capacity is elastic. That is, DHS can reallocate resources
based on existing needs. (Dkt. No. 153-10 at 6); (Dkt. No. 210 at 89, 92–93).
19.
For example, from Fiscal Year 2019–present, ICE had an average daily
population by month that peaked at 55,238 in August 2019 and reached a low of 14,084
in February 2021. The April 2022 average daily population was 19,176.7
20.
Shifting resources is not without cost. For example, reallocating resources
to the border may come at the expense of interior enforcement, and vice-versa. (Dkt. No.
153-10 at 6); (Dkt. No. 210 at 176, 178).
21.
There is also velocity to DHS’s detention capacity. (Dkt. No. 210 at 200–01).
That is, DHS’s detention capacity is not just a function of the number of “beds” DHS
possesses, but also how quickly it removes aliens. For example, from fiscal year 2019–
present, the ICE average length of stay by month peaked at 91.5 days in September 2020
5
U.S. Immigration and Customs Enforcement Budget Overview, Department of Homeland
Security at p. 19, 29, https://www.dhs.gov/sites/default/files/2022-03/U.S.%20Immigration
%20and%20Customs%20Enforcement_Remediated.pdf (last visited June 9, 2022); U.S.
Immigration and Customs Enforcement Budget Overview, Department of Homeland Security at p. 17,
https://www.dhs.gov/sites/default/files/publications/u.s._immigration_and_customs_enfor
cement.pdf (last visited June 9, 2022).
6
ICE Spent Funds on Unused Beds, Missed COVID-19 Protocols and Detention Standards while
Housing Migrant Families in Hotels, Office of Inspector General at p. 6, https://www.oig.
dhs.gov/sites/default/files/assets/2022-04/OIG-22-37-Apr22.pdf (last visited June 9, 2022).
7
Detention Management, U.S. Immigration and Customs Enforcement, https://www.ice.
gov/detain/detention-management (last visited June 9, 2022) (download Detention FY 2022 YTD
(Detention FY22 tab, line 76); FY 2021 Detention Statistics (Detention FY 2021 YTD tab, line 76);
FY 2020 Detention Statistics (Detention EOFY2020 tab, line 59); and FY 2019 Detention Statistics
(Detention FY19 tab, line 59)).
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and reached a low of 21.1 days in September 2021. The April 2022 average length of stay
was 23.8 days.8
22.
As referenced in paragraphs 19 and 21 above, 55,238 total beds coupled
with an average length of stay of 21.1 days equates to a total annual detention capacity of
approximately 955,539 individuals. In contrast, 14,084 total beds coupled with an average
length of stay of 91.5 days equates to a total annual detention capacity of approximately
56,182 individuals. This demonstrates that DHS’s discretionary decisions have
significant aggregate consequences.
23.
Also relevant is the process by which DHS takes custody of aliens with
criminal convictions, which often happens through the use of a “detainer.”
24.
A detainer is an administrative notice from DHS to a Federal, state, or local
law enforcement agency. A detainer informs the law enforcement agency that DHS
intends to take custody of a removable alien detained by the jurisdiction upon their
release. A detainer asks the law enforcement agency to (1) notify DHS of the alien’s
release date and (2) hold the alien for up to 48 hours, so that DHS can take custody. 8
C.F.R. § 287.7.
25.
In Texas, the Texas Department of Criminal Justice (“TDCJ”)
administratively interviews every inmate at intake. If an inmate indicates that either his
citizenship or place of birth is not the United States, TDCJ enters that information into its
database and sends a packet on the inmate to ICE. The packet includes the inmate’s
fingerprints, biography, and family history. TDCJ regularly sends and updates the
packets. ICE relies on these packets to determine whether a detainer should be issued.
(Dkt. No. 210 at 54–55).
D.
DHS OFFICIALS ISSUED IMMIGRATION ENFORCEMENT MEMORANDA
1.
The January Memorandum
26.
On January 20, 2021, then-Acting Secretary of Homeland Security David
Pekoske issued a memorandum titled Review of and Interim Revision to Civil Immigration
Enforcement and Removal Policies and Priorities (the “January Memorandum”). By its own
terms, it took effect on February 1, 2021. (Dkt. No. 146-8).
8
Detention Management, U.S. Immigration and Customs Enforcement, https://www.ice.
gov/detain/detention-management (last visited June 9, 2022) (download Detention FY 2022 YTD
(Detention FY22 tab, line 93); FY 2021 Detention Statistics (Detention FY 2021 YTD tab, line 93);
FY 2020 Detention Statistics (Detention EOFY2020 tab, line 76); and FY 2019 Detention Statistics
(Detention FY19 tab, line 75)).
Case 6:21-cv-00016 Document 240 Filed on 06/10/22 in TXSD Page 10 of 96
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27.
The January Memorandum announced substantial changes to the
enforcement of the Nation’s immigration laws. (Id.).
28.
The January Memorandum identified three enforcement priorities: national
security, border security, and public safety. (Id. at 2).
29.
The January Memorandum defined the national security priority as
pertaining to those “[i]ndividuals who have engaged in or are suspected of terrorism or
espionage, or whose apprehension, arrest and/or custody is otherwise necessary to
protect the national security of the United States.” (Id. at 2).
30.
The January Memorandum defined the border security priority as
pertaining to those “[i]ndividuals apprehended at the border or ports of entry while
attempting to unlawfully enter the United States on or after November 1, 2020, or who
were not physically present in the United States before November 1, 2020.” (Id. at 2).
31.
Finally, the January Memorandum defined the public safety priority as
pertaining to those “[i]ndividuals incarcerated within federal, state, and local prisons and
jails released on or after the issuance of this memorandum who have been convicted of
an ‘aggravated felony,’ as that term is defined in section 101(a)(43) of the Immigration
and Nationality Act at the time of conviction, and are determined to pose a threat to
public safety.” (Id. at 2).
32.
The January Memorandum did not instruct officers to prioritize aliens
convicted of crimes of moral turpitude,9 aliens convicted of drug offenses,10 aliens
convicted of multiple offenses with an aggregate sentence of confinement of five years or
more,11 aliens who are traffickers of controlled substances,12 aliens who participate in the
commercialized sex industry,13 aliens who served in foreign governments and committed
“particularly severe violations of religious freedom,”14 aliens who participate in the
human trafficking industry,15 aliens who engage in money laundering,16 aliens convicted
of certain firearms offenses,17 and aliens with final orders of removal.18
9
See 8 U.S.C. §§ 1182(a)(2)(A)(i)(I), 1227(a)(2)(A)(i)–(ii).
10
See 8 U.S.C. § 1182(a)(2)(A)(i)(II).
11
See 8 U.S.C. § 1182(a)(2)(B).
12
See 8 U.S.C. § 1182(a)(2)(C).
13
See 8 U.S.C. § 1182(a)(2)(D).
14
15
See 8 U.S.C. § 1182(a)(2)(G).
See 8 U.S.C. § 1182(a)(2)(H).
16
See 8 U.S.C. § 1182(a)(2)(I).
17
See 8 U.S.C. § 1227(a)(2)(C).
18
See 8 U.S.C. § 1231(a)(1)(A).
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33.
The January Memorandum further stated that its “guidelines and priorities
are not intended to, do not, and may not be relied upon to create any right or benefit,
substantive or procedural, enforceable at law by any party in any administrative, civil, or
criminal matter.” (Dkt. No. 146-8 at 4).
34.
The January Memorandum called on the Acting Director of ICE to “issue
operational guidance on the implementation of” the priority framework. (Id. at 3).
35.
The January Memorandum stated that it did not “prohibit[] the
apprehension or detention of individuals unlawfully in the United States who are not
identified as priorities” in the memorandum. (Id.).
36.
The January Memorandum was not issued following notice-and-comment
procedures. (Dkt. No. 211 at 69).
2.
The February Memorandum
37.
As required by the January Memorandum, on February 18, 2021, Acting
ICE Director Tae Johnson issued a memorandum titled Interim Guidance: Civil Immigration
Enforcement and Removal Priorities (the “February Memorandum”). (Dkt. No. 146-9).
38.
The February Memorandum noted that it provided only “interim
guidance” and would “remain in effect until Secretary Mayorkas issue[d] new
enforcement guidelines.” (Id. at 1).
39.
The February Memorandum acknowledged that the January 20
Memorandum “established interim civil immigration enforcement priorities,” and it
restated those priority categories: national security, border security, and public safety.
(Id. at 2, 4–5).
40.
The February Memorandum defined the national security priority as
pertaining to those aliens who have engaged in, or are suspected of engaging, in terrorism
or espionage. (Id. at 4).
41.
The February Memorandum defined the border security priority as
pertaining to those aliens “apprehended at the border or a port of entry while attempting
to unlawfully enter the United States on or after November 1, 2020” or who were “not
physically present in the United States before November 1, 2020.” (Id. at 4).
42.
Finally, the February Memorandum defined the public safety priority as
pertaining to those aliens who “pose[] a threat to public safety” and have been “convicted
of an ‘aggravated felony’” or are involved with criminal gangs. (Id. at 4–5).
Case 6:21-cv-00016 Document 240 Filed on 06/10/22 in TXSD Page 12 of 96
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43.
The February Memorandum did not instruct officers to prioritize aliens
convicted of crimes of moral turpitude,19 aliens convicted of drug offenses,20 aliens
convicted of multiple offenses with an aggregate sentence of confinement of five years or
more,21 aliens who are traffickers of controlled substances,22 aliens who participate in the
commercialized sex industry,23 aliens who served in foreign governments and committed
“particularly severe violations of religious freedom,”24 aliens who participate in the
human trafficking industry,25 aliens who engage in money laundering,26 aliens convicted
of certain firearms offenses,27 and aliens with final orders of removal.28
44.
The February Memorandum stated that it would generally not require
“[o]fficers and agents . . . [to] obtain preapproval for enforcement or removal actions”
against those who fall within the three “presumed priority” categories. But it generally
required “preapproval” for enforcement actions, which includes detention, against other
criminal aliens. The February Memorandum noted, “[i]f preapproval is impractical, an
officer or agent should conduct the enforcement action” and then seek approval within
24 hours. (Dkt. No. 146-9 at 5–6).
45.
The approval rate for “other priority” enforcement actions varied by ICE
field office. Several offices approved more than 99% of all requests. The lowest approval
rates were in the New York (82%) and Denver (89%) field offices. The median approval
rate was 98%. (Dkt. No. 146-15 at 1, 3).
46.
However, under the February Memorandum, many ICE offices had a
practice of pre-vetting cases so that officers obtained informal approval from their
supervisors before they formally submitted an approval request. This made the approval
rate for non-priority cases appear deceptively high. (Id. at 3).
47.
This practice artificially inflated the approval rate for “other priority”
enforcement actions. It is unlikely that officers would seek preapproval for an
19
See 8 U.S.C. §§ 1182(a)(2)(A)(i)(I), 1227(a)(2)(A)(i)–(ii).
20
See 8 U.S.C. § 1182(a)(2)(A)(i)(II).
21
See 8 U.S.C. § 1182(a)(2)(B).
22
See 8 U.S.C. § 1182(a)(2)(C).
23
See 8 U.S.C. § 1182(a)(2)(D).
24
See 8 U.S.C. § 1182(a)(2)(G).
25
See 8 U.S.C. § 1182(a)(2)(H).
26
See 8 U.S.C. § 1182(a)(2)(I).
27
See 8 U.S.C. § 1227(a)(2)(C).
28
See 8 U.S.C. § 1231(a)(1)(A).
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enforcement action, let alone take an enforcement action, that did not survive this
informal pre-vetting process. (Id.); (Dkt. No. 210 at 79–80).
48.
To “ensure compliance” and “consistency” across the country and to allow
for an assessment of the effectiveness of the priority framework, the February
Memorandum required field offices to “collect data on the nature and type of
enforcement and removal actions they perform.” (Dkt. No. 146-9 at 5).
49.
The February Memorandum stated that it did “not require or prohibit the
arrest, detention, or removal of any noncitizen” and that “officers and agents are expected
to exercise their discretion thoughtfully, consistent with ICE’s important national
security, border security, and public safety mission.” (Id. at 3).
50.
The February Memorandum further stated that its “guidelines and
priorities are not intended to, do not, and may not be relied upon to create any right or
benefit, substantive or procedural, enforceable at law by any party in any administrative,
civil, or criminal matter.” (Id. at 7).
51.
The February Memorandum was not issued following notice-and-comment
procedures. (Dkt. No. 211 at 69).
3.
The Final Memorandum
52.
On September 30, 2021, Secretary Mayorkas issued the Final Memorandum
from DHS. (Dkt. No. 109-5).
53.
Secretary Mayorkas provided that the Final Memorandum would become
effective on November 29, 2021, and that, upon its effective date, the Final Memorandum
would “serve to rescind” the January and February Memoranda. (Id. at 7).
54.
In developing the Final Memorandum, Secretary Mayorkas and DHS
received input from certain individuals and groups. (Dkt. No. 145-1).
55.
Secretary Mayorkas and DHS considered issues raised in litigation and the
views of members of Congress and state and local officials. See, e.g., (Dkt. No. 148-9);
(Dkt. No. 148-8); (Dkt. No. 148-15); (Dkt. No. 150-1).
56.
The Final Memorandum by its terms sets out “guidance for the
apprehension and removal of noncitizens.” (Dkt. No. 109-5 at 2). The Final
Memorandum expressly applies to detainers. (Id. at 3).
57.
The Final Memorandum identifies the same three priority enforcement
categories as the previous two memoranda: national security, border security, and public
safety. Compare (Id. at 4–5) with (Dkt. No. 146-8 at 2) and (Dkt. No. 146-9 at 4–5).
Case 6:21-cv-00016 Document 240 Filed on 06/10/22 in TXSD Page 14 of 96
51a
58.
Unlike the February Memorandum, the Final Memorandum’s priorities are
not presumptively subject to enforcement action. Compare (Dkt. No. 109-5 at 4–5) with
(Dkt. No. 146-9 at 4–5).
59.
For example, under the “border security” priority, the Final Memorandum
admonishes “there could be mitigating or extenuating facts and circumstances that
militate in favor of declining enforcement action. [DHS] personnel should evaluate the
totality of the facts and circumstances and exercise their judgment accordingly.” (Dkt.
No. 109-5 at 5).
60.
Unlike the February Memorandum, the Final Memorandum’s “public
safety” priority no longer presumptively subjects aliens convicted of aggravated felonies
to enforcement action, including detention. Compare (Dkt. No. 109-5 at 4–5) with (Dkt.
No. 146-9 at 4–5).
61.
DHS’s explanation for removing the “aggravated felony” category is that it
was “both over- and under-inclusive,” is “an imperfect proxy for severity of offense,” and
because the “aggravated felony definition can be challenging to administer in many
instances[.]” (Dkt. No. 146-1 at 12).
62.
The statute, however, specifically provides that the Defendants (“the
Government”) “shall take into custody any alien” that has committed an aggravated
felony. 8 U.S.C. §§ 1226(c)(1)(B), 1227(a)(2)(A)(iii).
63.
Under the “public safety” priority, the Final Memorandum instructs DHS
personnel that enforcement, including detention, “is not to be determined according to
bright lines or categories.” (Dkt. No. 109-5 at 4–5).
64.
The Final Memorandum “requires an assessment of the individual and the
totality of the facts and circumstances.” It states, DHS “personnel should not rely on the
fact of conviction or the result of a database search alone,” when deciding to enforce the
law. Rather, they “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 [alien’s] conduct at issue.” (Id.).
65.
As with the January and February Memoranda, the Final Memorandum
does not instruct officers to prioritize aliens convicted of crimes of moral turpitude,29
aliens convicted of drug offenses,30 aliens convicted of multiple offenses with an
aggregate sentence of confinement of five years or more,31 aliens who are traffickers of
29
30
See 8 U.S.C. §§ 1182(a)(2)(A)(i)(I), 1227(a)(2)(A)(i)–(ii).
See 8 U.S.C. § 1182(a)(2)(A)(i)(II).
31
See 8 U.S.C. § 1182(a)(2)(B).
Case 6:21-cv-00016 Document 240 Filed on 06/10/22 in TXSD Page 15 of 96
52a
controlled substances,32 aliens who participate in the commercialized sex industry,33
aliens who served in foreign governments and committed “particularly severe violations
of religious freedom,”34 aliens who participate in the human trafficking industry,35 aliens
who engage in money laundering,36 aliens convicted of certain firearms offenses,37 and
aliens with final orders of removal.38
66.
The Final Memorandum states that a “review process should be put in place
to ensure the rigorous review of our personnel’s enforcement decisions” and “should
seek to achieve quality and consistency in decision-making across the entire agency and
the Department.” (Dkt. No. 109-5 at 7).
67.
The Final Memorandum also states that DHS “will work to establish a fair
and equitable case review process to afford noncitizens and their representatives the
opportunity to obtain expeditious review of the enforcement actions taken.” (Id.). That
case review process has been implemented. This “ICE Case Review (ICR)” process allows
aliens to challenge enforcement actions taken against them if they believe they do not
meet the Final Memorandum’s priorities.39 The ICR process allows aliens to request
further review of their initial determination by “a Senior Reviewing Official, who, where
appropriate, will communicate the ultimate resolution” with the requesting alien.40 The
ICR process states that cases “involving individuals detained in ICE custody or pending
imminent removal will be prioritized” and permits legal counsel to undertake the ICR
process on behalf of aliens.41
68.
The Final Memorandum further states that it “does not compel an action to
be taken or not taken” and “is not intended to, does not, and may not be relied upon to
32
See 8 U.S.C. § 1182(a)(2)(C).
33
See 8 U.S.C. § 1182(a)(2)(D).
34
See 8 U.S.C. § 1182(a)(2)(G).
35
See 8 U.S.C. § 1182(a)(2)(H).
36
See 8 U.S.C. § 1182(a)(2)(I).
37
See 8 U.S.C. § 1227(a)(2)(C).
38
See 8 U.S.C. § 1231(a)(1)(A).
39
ICE Case Review, U.S. Immigration and Customs Enforcement, https://www.ice.gov/
ICEcasereview (last visited June 9, 2022).
40
ICE Announces Case Review Process, U.S. Immigration and Customs Enforcement,
https://www.ice.gov/news/releases/ice-announces-case-review-process (last visited June 9,
2022).
41
ICE Case Review, U.S. Immigration and Customs Enforcement, https://www.ice.gov/
ICEcasereview (last visited June 9, 2022).
Case 6:21-cv-00016 Document 240 Filed on 06/10/22 in TXSD Page 16 of 96
53a
create any right or benefit, substantive or procedural, enforceable at law by any party in
any administrative, civil, or criminal matter.” (Dkt. No. 109-5 at 6, 8).
69.
The Final Memorandum was issued contemporaneously with another
document titled Significant Considerations in Developing Updated Guidelines for the
Enforcement of Civil Immigration Law (the “Considerations Memo”), in which DHS
summarized the key aspects informing the Final Memorandum. (Dkt. No. 146-1).
70.
In the Considerations Memo, DHS included a section on potential
alternative approaches to the Final Memorandum. (Id. at 19–21).
71.
DHS has coupled the Final Memorandum “with [an] extensive and
continuous training program on the new guidelines, the creation of short- and long-term
processes to review enforcement decisions to achieve quality and consistency, and
comprehensive data collection and analysis.” (Id. at 20).
72.
DHS’s Activity Analysis and Reporting Tool (“AART”) is used to collect
data on whether enforcement actions adhere to the Final Memorandum. (Dkt. No. 21718 at 4). The AART requires agents to report which of the three priority categories from
the Final Memorandum applies to an enforcement action. (Id. at 8). Agents may only
choose from the three categories when logging an enforcement action.
73.
Agents must also certify that they “considered all relevant case specific
information” available at the time of the enforcement action. The submissions are
reviewed by the agent’s supervisors to verify that “all necessary information has been
provided.” (Id. at 12–13).
74.
The Final Memorandum was not issued following notice-and-comment
procedures. (Dkt. No. 211 at 69).
E.
THE FINAL MEMORANDUM INCREASES THE NUMBER OF CRIMINAL ALIENS
AND ALIENS WITH FINAL ORDERS OF REMOVAL RELEASED INTO TEXAS,
LOUISIANA AND THE UNITED STATES
75.
In Texas, from fiscal year 2017 to fiscal year 2020, detainers were rescinded
for various reasons such as discovering that the individual was a U.S. citizen, medical
complications, or an inability to be repatriated. (Dkt. No. 203 at 68–69); (Dkt. No. 210 at
37).
76.
However, no more than a dozen detainers were dropped per year during
that time period. (Dkt. No. 203 at 68–69).
77.
Before February 2021, TDCJ did not track daily the number of detainers that
ICE dropped because there was no need. Before February 2021, ICE dropped so few
detainers that the number could be tracked on a periodic basis. (Dkt. No. 210 at 42).
Case 6:21-cv-00016 Document 240 Filed on 06/10/22 in TXSD Page 17 of 96
54a
78.
Because of the increase in dropped detainers, TDCJ is currently updating
its inmate-tracking system to indicate whether criminal alien inmates have had detainers
dropped—or never issued in the first place—due to the Final Memorandum. (Id. at 46–
47).
79.
From January 20, 2021 through February 15, 2022, ICE rescinded detainers
on 170 criminal aliens in TDCJ facilities. It later reissued the detainer or took custody of
29 of those inmates. (Dkt. No. 203 at 69); (Dkt. No. 217 at 19–23).
80.
ICE took custody of some aliens with rescinded detainers because TDCJ
raised questions about the cancelation of their detainers. (Dkt. No. 210 at 8, 51).
81.
Of the 141 criminal aliens whose detainers remained rescinded, 55 were
serving a sentence for a drug offense. These were serious drug offenses; none were for a
single offense involving possession of 30 grams or less of marijuana for one’s own use.
(Dkt. No. 217 at 19–23).
82.
Of the 141 criminal aliens whose detainers remained rescinded, 95 were
released on parole supervision. (Dkt. No. 203 at 83). At the time this case was tried, 17
of those 95 had failed to comply with their parole supervision and four had committed
new criminal offenses. At least one remains at large in Texas with a warrant for his arrest.
(Id.).
83.
In the months since the Final Memorandum became effective, ICE has
continued to rescind detainers placed on criminal aliens in TDCJ custody because of the
Final Memorandum. (Dkt. No. 217 at 23); (Dkt. No. 210 at 45); (Dkt. No. 203 at 85); see
also (Dkt. No. 217-23).
84.
From November 29, 2021 to February 15, 2022, ICE rescinded detainers for
at least 15 aliens detained within Texas facilities. (Dkt. No. 217 at 23). At least one of
those aliens was subject to a final order of removal from the United States, but because of
the dropped detainer, he was released into the public rather than ICE’s custody. (Dkt.
No. 203 at 80–81); (Dkt. No. 217 at 23).
85.
Between approximately March to April 2021, the Louisiana Department of
Public Safety and Corrections had at least four criminal aliens who were either (1) subject
to detainers that were canceled; or (2) released to ICE custody only to later be returned to
Louisiana. (Dkt. No. 217-1 at 13–15). These four individuals were thereafter placed on
“supervised release” or “supervision by probation and parole.” (Id.).
86.
One of those was convicted of indecent behavior with juveniles and sexual
battery. His detainer was rescinded, and he was released subject to supervised release.
(Id. at 13–14).
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55a
87.
Two others, one convicted of possessing Fentanyl and the other of
aggravated second-degree battery, were released to ICE but almost immediately returned
for supervised release rather than removed. (Id. at 14).
88.
A fourth, convicted of aggravated assault with a firearm, was released to
ICE but later returned to Louisiana’s custody for supervised release. (Id. at 15).
89.
The number of convicted criminal aliens in ICE custody per day has
dropped dramatically in the months since the January Memorandum was issued and has
continued through today under the subsequent Memoranda. There has been little
variation in custody numbers since the January Memorandum was issued.42
90.
There has been little practical difference between ICE’s detention of aliens
with criminal convictions under the February Memorandum and under the Final
Memorandum. (Dkt. No. 203 at 85); (Dkt. No. 210 at 40).
91.
The average daily number of aliens with pending criminal charges in ICE
custody has also dropped in the months since the Final Memorandum was issued.43
42
Detention
Management,
U.S.
Immigration
and
Customs
Enforcement,
https://www.ice.gov/detain/detention-management (last visited June 7, 2022) (download
Detention FY 2022 YTD (Detention FY22 tab, line 73); FY 2021 Detention Statistics (Detention FY
2021 YTD tab, line 73); FY 2020 Detention Statistics (Detention EOFY2020 tab, line 56); and FY
2019 Detention Statistics (Detention FY19 tab, line 57)).
43
Detention
Management,
U.S.
Immigration
and
Customs
Enforcement,
https://www.ice.gov/detain/detention-management (last visited June 7, 2022) (download
Detention FY 2022 YTD (Detention FY22 tab, line 74); FY 2021 Detention Statistics (Detention FY
2021 YTD tab, line 74)).
Case 6:21-cv-00016 Document 240 Filed on 06/10/22 in TXSD Page 19 of 96
56a
92.
custody.44
A similar pattern exists with respect to convicted criminal aliens in CBP
No. Convicted Criminal Aliens
Average Daily Population by Month (Convicted Criminals)
20000
15000
10000
5000
-------------
.............
0
Month
Total Criminal Aliens Detained ICE & CBP
ICE Criminal Aliens Detained
CBP Criminal Aliens Detained
93.
Even as COVID-19 conditions have improved, detentions of aliens with
criminal convictions have remained considerably lower than prior years.
94.
As the detention data indicate, officers do not have discretion to go outside
the enforcement priorities. The data are not consistent with officers having the ability to
disregard the admonitions in the Memoranda. Instead, they demonstrate that officers are
expected to only take an enforcement action within much narrower circumstances.
44
Detention
Management,
U.S.
Immigration
and
Customs
Enforcement,
https://www.ice.gov/detain/detention-management (last visited June 7, 2022) (download
Detention FY 2022 YTD (Detention FY22 tab, line 69); FY 2021 Detention Statistics (Detention FY
2021 YTD tab, line 69)).
Case 6:21-cv-00016 Document 240 Filed on 06/10/22 in TXSD Page 20 of 96
57a
95.
The same decline is also evident in removals carried out by ICE, since DHS
45
was created:
Total ICE Removals by Fiscal Year
450,000
392,862
400,000
369,221
Total Removals
350,000
315,943
291,060
240,255
250,000
150,000
396,906
368,644
300,000
200,000
389,834
409,849
207,776
235,413
175,106
256,085
267,258
226,119
185,884
180,189
157,080
100,000
50,000
55,590
0
2003 2004 2005 2006 2007 2008 2009 2010 2011 2012 2013 2014 2015 2016 2017 2018 2019 2020 2021
Fiscal Year
96.
These removal numbers—over three-fold below the removals carried out at
the height of the pandemic—make clear that the Final Memorandum is dramatically
impacting civil immigration enforcement and are a further indication that agents
consider the Memoranda to contain mandatory directives that limit the discretion that
was available to them in years’ past.
97.
The Final Memorandum subjects every enforcement action to review for
compliance with its priorities and terms. (Dkt. No. 109-5 at 7–8); (Dkt. No. 217-18 at 12–
13). DHS personnel are required to consider the priorities and other factors outlined in
the Final Memorandum and are precluded from relying on a conviction, no matter how
45
Detention
Management,
U.S.
Immigration
and
Customs
Enforcement,
https://www.ice.gov/detain/detention-management (last visited June 7, 2022) (download FY
2021 Detention Statistics (Detention FY 21 YTD tab, line 29) (for fiscal year 2021); FY 2020
Detention Statistics (Detention EOFY2020 tab, line 29) (for fiscal year 2020)); (Dkt. No. 153-10 at
22) (for fiscal years 2017–2019); FY 2016 ICE Immigration Removals, U.S. Immigration and Customs
Enforcement, https://www.ice.gov/remove/removal-statistics/2016 (last visited June 7, 2022)
(for fiscal years 2008–2016); FY2003 – 2016 Removal by AOR Stats, U.S. Immigration and Customs
Enforcement,
https://www.ice.gov/doclib/foia/immigration_statistics/Removals-AOR-FY
2003-2016.xlsx (last visited June 7, 2022) (for fiscal years 2003–2007).
Case 6:21-cv-00016 Document 240 Filed on 06/10/22 in TXSD Page 21 of 96
58a
serious, or the result of a database search alone before taking an enforcement action. (Dkt.
No. 109-5 at 5, 7–8); (Dkt. No. 217-18 at 8, 12); (Dkt. No. 217-26 at 8–15, 18).
98.
Based on the dramatic decrease in detentions of aliens with criminal
convictions, the Final Memorandum and its priorities—particularly when viewed in light
of the previous Memoranda and how they were implemented and enforced by DHS
supervisors—are perceived by many ICE officers and agents as substantially limiting if
not eliminating their discretion to make detention decisions. (Dkt. No. 109-5 at 7–8); (Dkt.
No. 210 at 46, 163); see supra (F.F. No. 89); (F.F. Nos. 91–93); (F.F. No. 95).
99.
The result is that an ostensibly permissive Final Memorandum is effectively
mandatory at the most important level: the agents and officers who are tasked with
enforcing the law.
100. The Memoranda have resulted in ICE officers rescinding detainers and
declining to take aliens into custody who are covered by the statutes. (Dkt. No. 203 at
68–69, 73–74); (Dkt. No. 210 at 37–39, 80, 84–85, 87, 161); (Dkt. No. 217 at 19–23).
101. The Final Memorandum has led to the rescission of detainers, which has at
least in part contributed to fewer criminal aliens being detained by ICE. (Dkt. No. 217 at
23); (Dkt. No. 210 at 45); (Dkt. No. 203 at 85); see supra (F.F. No. 89); (F.F. Nos. 91–93); (F.F.
No. 95). It has also led to the release of aliens with final orders of removal. (Dkt. No. 203
at 80–81); (Dkt. No. 217 at 23).
102. The Final Memorandum increases the number of aliens with criminal
convictions and aliens with final orders of removal released into the United States.
F.
INCREASED NUMBERS OF CRIMINAL ALIENS LEAD TO INCREASED STATE
COSTS
1.
Costs of Incarcerating Criminal Aliens
103. The average cost to TDCJ for incarcerating an inmate who qualifies for
reimbursement under the federal government’s State Criminal Alien Assistance Program
(“SCAAP”) was $62.34 per day for the period of July 1, 2017 through June 30, 2018. (Dkt.
No. 115-6 at 3). During that period, TDCJ incarcerated 8,951 eligible inmates for a total
of 2,439,110 days. (Id.). The total estimated cost of incarcerating these inmates for that
period was $152,054,117. (Id. at 3-4). Of that amount, the SCAAP program reimbursed
only $14,657,739. (Id.). Thus, the estimated net cost to the State of Texas was
approximately $56.33 per person per day.
104. For the most recently completed period, July 1, 2018 through June 30, 2019,
TDCJ incarcerated 8,893 eligible inmates for a total of 2,385,559 days at an estimated total
cost of $165,247,672. The average per-inmate, per-day cost of incarceration for those
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inmates was $69.27. As of January 2022, SCAAP had not reimbursed any of that amount.
(Dkt. No. 217 at 112 ¶¶ 6–7).
105. When ICE rescinds a detainer for an inmate in TDCJ custody, the Board of
Pardons and Paroles considers that new information and has revoked parole for aliens
who were previously approved for parole, leading to continued custody in TDCJ. (Dkt.
No. 203 at 85–89); (Dkt. No. 217 at 19–23).
106. As the number of aliens in TDCJ custody increases, the net cost to the State
of Texas of detaining those aliens increases. (Dkt. No. 217 at 112 ¶ 8).
107. TDCJ also 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. For Fiscal Year 2020, the average per-day cost of these
programs for each inmate not detained or removed is $4.64, which would total
$11,068,994. (Id. at 113 ¶ 9).
108. Louisiana incurs costs to supervise aliens not detained by ICE while they
are on supervised release. (Dkt. No. 217-1 at 15).
2.
Recidivism of Criminal Aliens
109. A 2018 study from the United States Department of Justice’s Bureau of
Justice Statistics shows that state offenders generally recidivate at a 44% level within the
first year following release, 68% within the first three, 79% within the first six, and 83%
within the first nine. The same study shows that during the nine-year period following
release, there were on average five arrests per released prisoner. (Dkt. No. 217-10 at 2).
110. Tarrant County, Texas averages 246 inmates with immigration detainers at
any given time. The Tarrant County Sheriff estimates the average cost of jailing those
inmates to be $3,644,442 per year. (Dkt. No. 217 at 107).
111. As of January 7, 2022, Tarrant County had 145 of these inmates out of a total
population in custody of 3,855. (Id. at 107–08).
112. The 145 immigration-detainer inmates had 246 pending charges among
them. They included, among other crimes, seven charges for murder, twenty-six charges
for aggravated assault with a deadly weapon, and eight charges for aggravated sexual
assault of a child. (Id.).
113. The Tarrant County Sheriff’s Office examined the recidivism rates for
inmates with immigration detainers by examining the criminal-history files of every such
inmate jailed as of that date. In January 2022, it found a recidivism rate (indicated by
prior jail time) of roughly 90% for that population, compared to 69% in October 2021. (Id.
at 108).
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114. DHS itself found that “[o]f 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.” (Dkt. No. 153-10 at 15)
(emphases added).
3.
Education Provided to Criminal Aliens
115. The estimated average per-student, per-year funding entitlement for a
student in Texas public schools in Fiscal Year 2022 will be $9,211. For a student who
qualifies for English as a second language weighted funding, that amount is $11,500.
(Dkt. No. 217 at 140).
116. While Texas does not have information on the total number of school-aged
aliens attending public schools in the State, there is data for a subset of those children.
(Id.).
117. Data from the U.S. Health and Human Services Office of Refugee
Resettlement shows how many unaccompanied children were released to sponsors in
Texas during annual October–September periods. Most unaccompanied children
detained by the Government and released to sponsors in Texas qualify for English as a
second language weighted funding. (Id.).
118. For each of those children educated in the Texas public school system the
fiscal year following release to a sponsor and who qualified for English as a second
language weighted funding, the State and local governments would incur millions of
dollars in costs. Since fiscal year 2015, those costs have been as high as $176.42 million
per year and as low as $26.95 million per year. (Id. at 140–41).
119. The total costs to Texas of providing public education to alien children will
rise as the number of such children increases. (Dkt. No. 217 at 141).
120. The Texas Juvenile Justice Department (“TJJD”) has custody of juvenile
offenders who have committed felony-level offenses. When those juveniles are released,
they attend public schools. (Id. at 155).
121. ICE previously sent detainers to TJJD for juvenile aliens. However, as of
April 26, 2021, at least one alien juvenile in TJJD custody for committing aggravated
robbery was not issued a detainer. That juvenile will attend a Texas public school upon
release. (Id. at 155–56).
122. Some aliens with criminal convictions who are not detained by ICE because
of the Final Memorandum will cause the Texas public school system to incur additional
costs.
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4.
Healthcare Provided to Criminal Aliens
123. The Texas Health and Human Services Commission (“HHSC”) provides
three principal categories of services and benefits to aliens in Texas: (i) Texas Emergency
Medicaid; (ii) the Texas Family Violence Program; and (iii) Texas Children’s Health
Insurance Program (“CHIP”) Perinatal Coverage. Aliens also receive uncompensated
medical care from public hospitals in the State. (Id. at 118).
124. The Emergency Medicaid program is a federally required program jointly
funded by the federal government and the states. It provides Medicaid coverage to aliens
living in the United States. (Id.).
125. Because HHSC Medicaid claims data do not conclusively identify an
individual’s residency status, HHSC must estimate the portion of Emergency Medicaid
payments attributable to aliens. (Id.).
126. The Family Violence Program contracts with non-profit agencies across
Texas to provide essential services to family violence victims, including aliens, in three
categories: shelter centers, non-residential centers, and Special Nonresidential Projects.
The Family Violence Program does not ask individuals about their residency status, so
HHSC estimates the portion of Family Violence Program expenditures attributable to
aliens. (Id. at 119).
127. Texas CHIP Perinatal Coverage provides perinatal care to certain lowincome women who do not otherwise qualify for Medicaid. HHSC cannot definitively
report the number of aliens served by CHIP Perinatal Coverage because the program
does not require citizenship documentation. (Id.).
128. The following chart shows HHSC’s estimates of the total cost to Texas to
furnish coverage under each program to undocumented aliens.
State Fiscal Year
2009
2011
2013
2015
2017
2019
Emergency Medicaid
$62 million
$71 million
$90 million
$73 million
$85 million
$80 million
Family Violence
$1.3 million
$1.3 million
$1.4 million
$1.0 million
$1.2 million
$1.0 million
CHIP Perinatal
$33 million
$35 million
$38 million
$30 million
$30 million
$6 million
(Id. at 118–20).
129. HHSC has in the past estimated the amount of uncompensated medical care
provided by state public hospital districts to aliens. HHSC estimated that those districts
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incurred approximately $596.8 million in uncompensated care for aliens in State Fiscal
Year 2006 and $716.8 million in State Fiscal Year 2008. (Id. at 120).
130. Some criminal aliens who are not detained by ICE because of the Final
Memorandum will require these services, causing Texas to incur costs.
G.
THE AGREEMENTS BETWEEN THE STATES AND DHS
131. On January 8, 2021, an official in DHS, Ken Cuccinelli, signed agreements
with the States of Texas and Louisiana. (Dkt. No. 153-8 at 43–52, 53–56); (Dkt. No. 153-9
at 1–6).
132. These agreements sought to provide individual states with 180-days’
written notice before DHS took “any action or [made] any decision that could reduce
immigration enforcement, increase the number of removable or inadmissible aliens in the
United States, or increase immigration benefits or eligibility for benefits for removable or
inadmissible aliens.” (Dkt. No. 153-8 at 46); see also (id. at 56).
133. In letters dated February 2, 2021, signed by Acting DHS Secretary Pekoske
and addressed to Texas and Louisiana, DHS stated that the agreements were
unenforceable and non-binding. (Dkt. No. 153-14 at 19–20, 22–23). In addition, in each
of those letters, Acting Secretary Pekoske stated that, “[n]otwithstanding that the
Document is void, not binding, and unenforceable—and preserving all rights, authorities,
remedies, and defenses under the law—this letter also provides notice . . . that DHS, CBP,
ICE and USCIS rescinds, withdraws, and terminates the Document, effective
immediately.” (Id.).
134. Each of those agreements had a clause stating that termination of those
agreements would take effect “180 days after the written termination request was
submitted or upon a date agreed upon by all parties, whichever is earlier.” (Dkt. No. 1538 at 50); (Dkt. No. 153-9 at 4).
135. Texas’s purported agreement with DHS was terminated as of August 1,
2021. (Dkt. No. 109 at 20).
II.
STANDING
The Court now turns to the legal analysis. To bring a lawsuit in federal court, a
plaintiff must have standing. The Supreme Court has distilled the standing doctrine into
an “irreducible constitutional minimum” whereby a plaintiff must demonstrate (1) that
it suffered an “injury in fact” that is “concrete and particularized” and “actual or
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imminent,” (2) that is fairly traceable to the challenged conduct of the defendant, and
(3) that is likely to be redressed by a favorable judicial decision. Spokeo, Inc. v. Robins, 578
U.S. 330, 338–39, 136 S.Ct. 1540, 1547–48, 194 L.Ed.2d 635 (2016).
Both Texas and
Louisiana maintain that they have standing, but only one state need have standing to
proceed to the merits. Texas v. Biden, 20 F.4th 928, 969 (5th Cir. 2021) (hereinafter Texas
MPP), cert. granted, 142 S.Ct. 1098, 212 L.Ed.2d 1 (2022). Since there was a final trial on
the merits, the States must prove standing by a preponderance of the evidence. Id. The
wealth of evidence at trial was as to Texas’s claims, so the Court considers Texas’s case
for standing.46
46
Relevant to this controversy, the Court is mindful that the States are not typical litigants,
especially for the purpose of invoking federal jurisdiction in this context. Massachusetts v. EPA,
549 U.S. 497, 518, 127 S.Ct. 1438, 1454, 167 L.Ed.2d 248 (2007). The Court holds that the States are
entitled to “special solicitude” in their quest to establish standing. Id. at 520, 127 S.Ct. at 1454–55.
This is not an alternative, state-specific track for them to prove standing, but rather lowers the
burden for them to establish constitutional standing when the conditions for special solicitude
are met. Texas MPP, 20 F.4th at 970.
Special solicitude has two requirements. First, the State must have a procedural right to
challenge the action in question. Id. at 969. Second, the challenged action must affect one of the
State’s quasi-sovereign interests—that is, one of the “formerly sovereign prerogatives that are
now lodged in the Federal Government.” Id. (cleaned up). The first element is satisfied because
the APA affords Texas a procedural right to challenge DHS’s rules. See Texas v. United States, 809
F.3d 134, 152 (5th Cir. 2015) (citing 5 U.S.C. § 702) (hereinafter Texas DAPA); see also Texas MPP,
20 F.4th at 970. The second element is satisfied because at least two of Texas’s quasi-sovereign
interests are implicated here: Texas’s interest in being free from “substantial pressure” from the
federal government to change its laws, and Texas’s interest in the enforcement of immigration
law—the power to regulate immigration being a sovereign prerogative that Texas wholly ceded
to the Government when it joined the Union. Texas DAPA, 809 F.3d at 152–54; see also Texas MPP,
20 F.4th at 970; see generally Arizona, 567 U.S. at 394–98, 132 S.Ct. at 2497–500. Indeed, special
solicitude is especially apt in this case because of the States’ inability to legislate on their own
behalf in this area. Texas DAPA, 809 F.3d at 152–53; see Arizona, 567 U.S. at 394–98, 132 S.Ct. at
2497–500.
Since the States are entitled to special solicitude, at a minimum, this makes it easier for them
to establish the imminence and redressability components of standing. Texas MPP, 20 F.4th at
970. The Court holds that the States have established standing without the need for special
solicitude. But lest any doubt remain, special solicitude certainly pushes them over the line.
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A.
INJURY IN FACT
Texas’s first task is to establish an injury in fact. The Final Memorandum harms
Texas in two ways: financially and as parens patriae. As to its finances, Texas has suffered
a concrete and particularized, actual injury. (F.F. Nos. 103–30). Texas has also suffered
concrete and particularized, actual injuries to its interests as parens patriae.47 Texas
possesses a quasi-sovereign interest in protecting its citizens from the criminal activity of
aliens subject to mandatory detention under federal law. Texas v. United States, 555 F.
Supp. 3d 351, 378–79 (S.D. Tex. 2021) (collecting cases) (hereinafter Texas II). And, at trial,
Texas showed that aliens who are subject to mandatory detention, but that ICE declined
to detain, have already committed, and are committing, more crimes in Texas. (F.F. No.
82); (F.F. Nos. 109–14).
These harms are to legally protected interests under both the traditional and parens
patriae inquiries. See Texas v. United States, 809 F.3d 134, 155–56 (5th Cir. 2015) (hereinafter
Texas DAPA); see also Texas MPP, 20 F.4th at 969–72. And they are substantial. (F.F. Nos.
103–04); (F.F. No. 107); (F.F. No. 118); (F.F. Nos. 128–29).
B.
TRACEABILITY
Texas also established a “fairly traceable link” between its injuries and the
Government’s action. For instance, when ICE rescinds a detainer for an inmate in TDCJ
47
As discussed at length in this Court’s memorandum opinion and order granting a
preliminary injunction, Texas v. United States, 555 F. Supp. 3d 351, 376–80 (S.D. Tex. 2021), parens
patriae standing results from the existence of an injury to a “quasi-sovereign” interest. There are
“two general categories” in which a quasi-sovereign interest may fall. Id. at 377. First, a State has
a quasi-sovereign interest in the health and well-being—both physical and economic—of its
residents. Id. Second, a state has a quasi-sovereign interest in not being discriminatorily denied
its rightful status within the federal system. Id.
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custody, the Texas Board of Pardons and Paroles considers that new information and has
revoked parole for aliens who were previously approved for parole. (F.F. No. 105). This
has led to aliens remaining in TDCJ custody longer than they otherwise would, which
imposes additional costs on the State of Texas. (F.F. No. 107). It has also caused, and
continues to cause, increases in the number of criminal aliens and aliens with final orders
of removal released into Texas. (F.F. No. 79); (F.F. Nos. 83–85); (F.F. No. 89); (F.F. Nos.
91–92); (F.F. No. 95); (F.F. Nos. 100–02). It has caused, and continues to cause, increases
in Texas’s expenditures on public services such as healthcare and education. (F.F. No.
118); (F.F. No. 128). When the Government declines to detain aliens subject to mandatory
detention, either the States must pay to continue to detain them or they are released into
the States. (F.F. No. 105); (F.F. No. 107). Upon release, some have consumed, and will
continue to consume, social services that the States are required to provide. (F.F. No.
122); (F.F. No. 130). In addition, some have recidivated, and others will recidivate. (F.F.
No. 82); (F.F. Nos. 109–14). Cf. Texas DAPA, 809 F.3d at 160; see Texas MPP, 20 F.4th at
972. “The causal chain is easy to see.” Texas MPP, 20 F.4th at 972.
Here, there is no need to rely on appeals to human nature—that third parties “will
likely react in predictable ways”—in response to the action of the Government, thereby
causing a traceable harm to Texas. See Dep’t of Com. v. New York, ____ U.S. ____, ____, 139
S.Ct. 2551, 2566, 204 L.Ed.2d 978 (2019). At trial, the States proved by a preponderance
of the evidence that aliens with criminal convictions have reacted in specific ways that
harm Texas.
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C.
REDRESSABILITY
Last, the Court can redress the States’ injuries. The APA empowers the Court to
“set aside agency action” that is “arbitrary, capricious, an abuse of discretion, or
otherwise not in accordance with the law.” 5 U.S.C. § 706(2)(A). The Court finds that the
Final Memorandum has led to more criminal aliens and aliens with final orders of
removal being released into Texas and Louisiana. (F.F. Nos. 79–80); (F.F. Nos. 82–85);
(F.F. No. 90–92); (F.F. No. 95); (F.F. No. 102). So vacatur of the Final Memorandum would
directly contribute to the decrease in the number of criminal aliens in the States’ prisons
and the number of aliens who are subject to a final order of removal being released into
the States. This would decrease the financial injury and parens patriae injury that the States
are suffering. Indeed, detention of aliens with criminal convictions was substantially
higher before DHS issued the series of memoranda in 2021. (F.F. No. 92).
***
The Court holds that the States have standing.48
48
With the exception of the Sixth Circuit’s stay opinion, Arizona v. Biden, 31 F.4th 469, 474–
77 (6th Cir. 2022), every court to have considered challenges to the Final Memorandum and its
predecessor memoranda has found standing. Arizona v. Biden, ____ F. Supp. 3d ____, ____, 2022
WL 839672, at *14 (S.D. Ohio Mar. 22, 2022); Texas II, 555 F. Supp. 3d at 373–85; Arizona v. DHS,
2021 WL 2787930, at *8 (D. Ariz. June 30, 2021); Florida v. United States, 540 F. Supp. 3d 1144, 1156
(M.D. Fla. 2021), vacated as moot, No. 21-11715, 2021 WL 5910702 (11th Cir. Dec. 14, 2021) (per
curiam).
Importantly, the Sixth Circuit noted that it did not have evidence that there was a connection
between the decrease in enforcement actions and the Final Memorandum. Arizona, 31 F.4th at
475. The Sixth Circuit held that there was no evidence that removing the Final Memorandum
would result in DHS “arresting more people, detaining more people, or removing more people.”
Arizona, 31 F.4th at 475. In this case, the States’ theory of injury is based on the Final Memorandum
causing increased numbers of criminal aliens within their borders, and as shown above, the Final
Memorandum has caused ICE to detain fewer criminal aliens. (F.F. No. 79); (F.F. Nos. 82–85);
(F.F. No. 90); (F.F. No. 92); (F.F. No. 95); (F.F. No. 102).
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III.
JUDICIAL REVIEW
The Court must determine whether the States’ claims are judicially reviewable
before turning to the merits. There are four inquiries: final agency action, statutory bars
to judicial review, committed to agency discretion, and zone of interests. The Court
addresses each in turn.
A.
FINAL AGENCY ACTION
To be subject to judicial review under the APA, the Final Memorandum must be
“final agency action for which there is no other adequate remedy in a court[.]” See 5
U.S.C. § 704. The Fifth Circuit considers this determination “a jurisdictional prerequisite
of judicial review.” Louisiana v. U.S. Army Corps of Eng’rs, 834 F.3d 574, 584 (5th Cir. 2016).
“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) (cleaned
up). To constitute final agency action, two conditions must be satisfied. Bennett v. Spear,
520 U.S. 154, 177–78, 117 S.Ct. 1154, 1168–69, 137 L.Ed.2d 281 (1997). “First, the action
must mark the consummation of the agency’s decisionmaking process—it must not be of
a merely tentative or interlocutory nature.”
Id. (citations and quotations omitted).
Second, “the action must be one by which rights or obligations have been determined, or
from which legal consequences will flow.” Id. (quotations omitted). The Parties do not
dispute that the Final Memorandum marks the consummation of the agency’s
decisionmaking process, (Dkt. No. 122 at 36 n.10), and the Court agrees. See Bennett, 520
U.S. at 177–78, 117 S.Ct. at 1168.
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It is the second condition that is in dispute. The Fifth Circuit has held that an
agency guidance document produces legal consequences or determines rights and
obligations when the document binds the agency and its staff to a legal position. EEOC,
933 F.3d at 441–42; Texas MPP, 20 F.4th at 948–49. A guidance document binds the agency
and its staff when the document “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 (cleaned up);
Texas MPP, 20 F.4th at 948. “[M]andatory language” in an agency’s guidance document
alone can be sufficient to render it binding. EEOC, 933 F.3d at 441–42. Likewise, “where
agency action withdraws an entity’s previously-held discretion,” that action is binding.
Id. at 442 (citation omitted); see Texas MPP, 20 F.4th at 948.
The Final Memorandum is final agency action. First, the Final Memorandum is
facially binding on DHS personnel. Second, the Considerations Memorandum and other
related evidence of DHS’s internal practices demonstrate that the Final Memorandum is
being applied in a way that makes it binding. Third, detention data also demonstrate
that the Final Memorandum is being applied in a way that makes it binding. Finally, the
Final Memorandum creates legal rights for aliens subject to enforcement action.
1.
Facially Binding
The Final Memorandum facially binds DHS personnel using mandatory language.
The Final Memorandum states that DHS “personnel must evaluate the individual and the
totality of the facts and circumstances and exercise their judgment accordingly” and that
“[w]hether a noncitizen poses a current threat to public safety is not to be determined
according to bright lines or categories, [but by] an assessment of the individual and the
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totality of the facts and circumstances.” (Dkt. No. 109-5 at 4–5) (emphases added). It also
states that “[t]he fact an individual is a removable noncitizen [] should not alone be the
basis of an enforcement action against them” and that DHS “personnel should not rely on
the fact of conviction or the result of a database search alone.”49 (Id. at 3, 5) (emphases
added). Additionally, it states that a “review process should be put in place to ensure the
rigorous review of our personnel’s enforcement decisions” and it “should seek to achieve
quality and consistency in decision-making across the entire agency and the
Department.” (Id. at 7). Last, the Final Memorandum “is Department-wide” and states
that “[a]gency leaders as to whom this guidance is relevant to their operations will
implement this guidance accordingly.” (Id. at 8). This mandatory language makes the
Final Memorandum facially binding. Cf. EEOC, 933 F.3d at 443 (approving the holding
in Appalachian Power Co. v. EPA, 208 F.3d 1015, 1022 (D.C. Cir. 2000) (“a guidance
49
The Government argues that directing agents not to rely on the fact of conviction alone
does not actually change anything because agents must still “engage in a categorical or modified
categorical analysis” to determine whether a state-court conviction is covered by Section 1226(c),
even absent any agency guidance. (Dkt. No. 223 at 12–13). But to detain someone under these
statutes, agents only need “reason to believe” that the state-court conviction falls within the
statutory categories—certainty is not required. Diop v. ICE/Homeland Sec., 656 F.3d 221, 230 (3d
Cir. 2011) (quoting Procedures for the Detention and Release of Criminal Aliens by the
Immigration and Naturalization Service and for Custody Redeterminations by the Executive
Office for Immigration Review, 63 Fed. Reg. 27,441, 27,444 (May 19, 1998)), abrogated on other
grounds by Jennings v. Rodriguez, ____ U.S. ____, 138 S.Ct. 830, 200 L.Ed.2d 122 (2018); Jennings,
____ U.S. at ____, 138 S.Ct. at 836 (“Detention during [immigration] proceedings gives
immigration officials time to determine an alien’s status without running the risk of the alien’s
either absconding or engaging in criminal activity before a final decision can be made.”). In
addition, if that officer is mistaken, an alien can request a hearing to challenge the detention. See
Matter of Joseph, 22 I. & N. Dec. 799 (BIA 1999). There are also constitutional limits on detention.
Zadvydas v. Davis, 533 U.S. 678, 699, 121 S.Ct. 2491, 2503, 150 L.Ed.2d 653 (2001).
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document requiring agency staff to use a multi-factor analysis in deciding whether a
regulated entity’s activity complied with governing law was a final agency action”)).
This mandatory language is not diluted by other lines from the Final
Memorandum, which state that it “does not compel an action to be taken or not taken”
and leaves the exercise of discretion “to the judgment of our personnel.”50 (Dkt. No. 1095 at 6). The Final Memorandum’s inclusion of these select statements does not subvert
the mandatory language throughout the document requiring agents to consider and
apply certain priorities and factors and precluding them from relying on the fact of
conviction alone. Cf. Texas v. United States, 549 F. Supp. 3d 572, 600 (S.D. Tex. 2021) (“The
DACA Memorandum itself also includes mandatory language that contradicts its
purported conferral of discretion.”). The Final Memorandum facially binds DHS staff by
using mandatory language to impose requirements on agency personnel. This satisfies
the second Bennett prong. 520 U.S. at 177–78, 117 S.Ct. at 1168; Texas MPP, 20 F.4th at 949;
EEOC, 933 F.3d at 442–43.
Further, because the Final Memorandum requires consideration and application
of additional priorities and factors and precludes reliance on a conviction alone—
requirements that would not exist in the Final Memorandum’s absence—it binds the
agency by “withdraw[ing] [agents’] previously-held discretion[.]” See EEOC, 933 F.3d at
50
The end of the Final Memorandum also states that this “guidance is not intended to,
does not, and may not be relied upon to create any right or benefit, substantive or procedural,
enforceable at law by any party in any administrative, civil, or criminal matter.” (Dkt. No. 109-5
at 8). But this kind of boilerplate language is given little weight in the final agency action analysis.
See Appalachian Power Co., 208 F.3d at 1023.
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442. As explained in greater detail below, Sections 1226(c) and 1231(a)(2) mandate
detention for certain categories of aliens.
See infra III.C.1.
Prior to the Final
Memorandum, agents could detain an alien with a criminal conviction listed in Section
1226(c) based on the simple fact of that conviction alone. Or they could detain an alien
based on the simple fact of a final order of removal. Now they must consider the personal
history of each covered alien and their family members for aggravating and mitigating
circumstances before taking any enforcement action, including detention. (Dkt. No. 21726 at 12, 18). If an officer determines that the only factor supporting detention is that the
alien is covered by the mandatory provisions of Section 1226(c) or Section 1231(a)(2), the
officer may not detain the alien. This imposes additional requirements on DHS personnel
that would not otherwise exist and is a separate reason that the Final Memorandum
satisfies the second Bennett prong.51 Texas MPP, 20 F.4th at 951 (“The Termination
Decision . . . created legal consequences by stripping preexisting discretion from DHS’s
own staff.”); see Bennett, 520 U.S. at 177–78, 117 S.Ct. at 1168; EEOC, 933 F.3d at 442–43.
51
The Government also disputes that the Final Memorandum requires agents to consider
its priorities and factors before taking an enforcement action. The Government relies on a statistic
that, under the February Memorandum, over 90% of requests to take an enforcement action
outside of the three priorities were approved. (Dkt. No. 122 at 19); (Dkt. No. 223 at 14–15). This
demonstrates, in the Government’s view, that the priorities were not binding on DHS personnel.
But the same document reporting the 90% statistic also notes that many ICE offices have a practice
of pre-vetting cases before they are submitted for approval, which deceptively inflates the
percentage. (F.F. Nos. 46–47). Additionally, under the Final Memorandum, the option to report
an enforcement action outside the Final Memorandum’s priority categories no longer exists. (Dkt.
No. 217-18 at 8).
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2.
Binding Based on Related Evidence
Other evidence further supports the conclusion that the Final Memorandum is
being applied in a way that binds DHS personnel. See EEOC, 933 F.3d at 441; see also Texas
MPP, 20 F.4th at 948. The Considerations Memorandum states 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.”
(Dkt. No. 146-1 at 19)
(emphasis added).
Additional insight comes from the Quick Reference Guide to ICE’s Activity
Analysis and Reporting Tool—the database in which it tracks enforcement actions. (Dkt.
No. 217-18). When an agent takes an enforcement action (including issuing a detainer),
the agent must report which of the three Final Memorandum priority categories applies.
(Dkt. No. 217-18 at 8). The Guide requires agents to categorize an enforcement action as
falling under one of the priorities in the Final Memorandum—it only includes radio
buttons for the three priority categories and contains the disclaimer “‘Other’ Priority is
no longer an option.” (Id.) (emphasis in original). When the “Public Safety” category is
selected, agents must then select from a list each aggravating factor that applies.52 (Id. at
9). Before submitting the information, the agent must certify that he or she has read and
52
The agent must consider whether the individual was convicted of an aggravated felony;
charged with an aggravated felony; convicted of a felony; charged with a felony; convicted of
multiple misdemeanors; charged with multiple misdemeanors; is a known or suspected gang
member; or if the police report indicates “particularly heinous or dangerous behavior not
reflected in charges or convictions”; or “other.” (Dkt. No. 217-18 at 9). If “other” is selected, a
narrative description is required. (Id.).
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complied with the directive to “consider[] all relevant case specific information” available
at the time of the enforcement action “which may include but is not limited to the nature
and degree of harm to any victim(s), the significance and the sophistication of the offense,
the length of the resulting sentence, and the duration of time that has elapsed since the
offense and or release.” (Id. at 12). Submissions are reviewed by the agent’s supervisors
“for review and confirmation” that “all necessary information has been provided.” (Id.
at 4, 13).
Furthermore, the mandatory “ICE Academy” training webinar on the Final
Memorandum for DHS personnel reiterates that agents should apply the Final
Memorandum’s priorities and factors in decision-tree fashion. (Dkt. No. 217-26 at 18).
The training webinar details the inquiries officers are expected to make. (Dkt. No. 21716). For instance, before an ICE officer takes an enforcement action under the “Threats to
Public Safety” priority category, the officer should examine the following aggravating
factors:
Gravity of the offense of conviction and the sentence imposed;
Nature and degree of harm caused by the criminal offense: []
both societal harm caused by a violent offense and other
harms (e.g., victim impact, exploitation of vulnerable
individuals); Sophistication of the criminal offense; Use, or
threatened use, of a firearm or dangerous weapon; [and] a
serious prior criminal record.
(Id. at 55). The ICE officer should also examine the following mitigating factors:
Advanced or tender age; Lengthy presence in the United
States; A mental condition that may have contributed to the
criminal conduct, or a physical or mental condition requiring
care or treatment; Status as a victim of crime or victim,
witness, or party in legal proceedings; Impact of removal on
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family in the United States, such as loss of provider or
caregiver; Whether the noncitizen may be eligible for
humanitarian protection or other immigration relief; Military
or other public service of the noncitizen or their immediate
family; Time since an offense and evidence of rehabilitation;
[and whether the] [c]onviction was vacated or expunged.
(Id. at 57). The officer is then instructed that consideration of the totality of the facts and
circumstances includes:
•
Reviewing “the noncitizen’s record and any specific aggravating factors.” (Id. at
61).
•
Completing and understanding “the profile of the individual by identifying
mitigating factors as well.” (Id.).
•
Reviewing “the noncitizen’s entire known criminal and administrative record, and
other investigative information, before making a decision” and directing questions
to “their colleagues [as to] how they might handle the case.” (Id.).
•
Conducting “an investigation to identify the aggravating and mitigating factors
that might be present and inform the assessment of the individual.” (Id.).
•
Potentially going “beyond the contents of the record” and pursuing “interviews
of individuals with relevant information,” especially where “the noncitizen is not
represented by counsel.” (Id.).
•
Noting that the “record could include a range of official and unofficial documents
with relevant information.” (Id.).
The Considerations Memorandum, the Quick Reference Guide to ICE’s Activity
Analysis and Reporting Tool, and the “ICE Academy” training webinar all demonstrate
that the Final Memorandum is being applied in a way that is binding on DHS personnel.
See EEOC, 933 F.3d at 441–42; see also Texas MPP, 20 F.4th at 948–49. The result is that an
ostensibly permissive Final Memorandum is effectively mandatory at the most important
level: the agents and officers who are tasked with enforcing the law. (F.F. No. 99).
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3.
Binding Based on Detention Data
Data on ICE’s detention practices for aliens with criminal convictions further
demonstrate that the Final Memorandum is being applied by the agency in a way that
makes it binding. See EEOC, 933 F.3d at 441; see also Texas MPP, 20 F.4th at 948. DHS has
detained significantly fewer aliens with criminal convictions or pending criminal charges
since the January Memorandum was issued. (F.F. No. 92). This same pattern continued
unabated through the issuance of the Final Memorandum and has continued since. (Id.).
Further, the States’ witnesses testified that since the Final Memorandum was
implemented, DHS has continued to rescind detainers, and DHS officials attribute those
rescissions to the Final Memorandum. (F.F. No. 83); (F.F. No. 100).
4.
Creates Rights or Obligations
In addition to being binding on DHS and its employees, the Final Memorandum
also confers rights on aliens subject to enforcement and is therefore an agency action “by
which rights or obligations have been determined, or from which legal consequences will
flow.” See Bennett, 520 U.S. at 177–78, 117 S.Ct. at 1168. The Final Memorandum states
that DHS will “work to establish a fair and equitable case review process to afford
noncitizens and their representatives the opportunity to obtain expeditious review of the
enforcement actions taken.” (Dkt. No. 109-5 at 7). That case review process has been
implemented, and it allows aliens to challenge an enforcement action if they believe it
does not comply with the Final Memorandum. (F.F. No. 67).
Not only does this process demonstrate that the Government’s characterization of
the Final Memorandum as mere “guidance” is categorically false, it also shows that the
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Final Memorandum provides a new basis on which aliens may avoid being subject to the
enforcement of immigration law.
This creates new “rights or obligations,” and it
provides an additional basis on which the Court finds that the Final Memorandum is final
agency action. See Bennett, 520 U.S. at 177–78, 117 S.Ct. at 1168.
***
In sum, the Final Memorandum is final agency action. It is facially binding on
DHS and its staff because it uses mandatory language that requires DHS personnel to
consider and apply certain priorities and factors before taking enforcement action, and it
expressly disallows reliance on the fact of conviction alone, which removes agents’
previously held discretion. See EEOC, 933 F.3d at 441–42, 445; see also Texas MPP, 20 F.4th
at 948. It is also being applied in a way that makes it binding on DHS and its staff. See
EEOC, 933 F.3d at 441; see also Texas MPP, 20 F.4th at 948. And it creates rights or
obligations by providing a basis on which aliens can challenge enforcement actions that
they believe are inconsistent with the Final Memorandum’s priorities. See Bennett, 520
U.S. at 177–78, 117 S.Ct. at 1169. Accordingly, it is an action “by which rights or
obligations have been determined, or from which legal consequences will flow,” and it
satisfies the second Bennett prong. Id. Because the Final Memorandum satisfies both
Bennett prongs, the Court holds that it is final agency action under the APA.53
53
Additionally, the Court holds that the Final Memorandum is a legislative rule. See infra
IV.C. Because legislative rules are necessarily final agency action, this holding is an alternative
basis for the Court’s conclusion that the Final Memorandum is final agency action. See Cal. Cmtys.
Against Toxics v. EPA, 934 F.3d 627, 634–35 (D.C. Cir. 2019); EEOC, 933 F.3d at 441.
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B.
STATUTORY BARS TO JUDICIAL REVIEW
Under the APA, an action may not proceed when another statute precludes
judicial review. 5 U.S.C. § 701(a)(1). The Government contends that 8 U.S.C. §§ 1252,
1226(e), and 1231(h) bar review. (Dkt. No. 122 at 37–41). None do.
As an initial matter, the Fifth Circuit has already concluded that “the entirety of
the text and structure of § 1252 indicates that it operates only on denials of relief for
individual aliens.” Texas MPP, 20 F.4th at 977; see id. at n.11; see also J.E.F.M. v. Lynch, 837
F.3d 1026, 1031–32 (9th Cir. 2016). A closer review of subsections (a)(5) and (b)(9), which
the Government cites, confirms that neither provision bars review.
First, Section 1252(a)(5) provides that federal courts of appeal have exclusive
jurisdiction for any petition for review “filed . . . in accordance with” Section 1252 itself.
8 U.S.C. § 1252(a)(5). In plain language: an individual who has an order of removal
affirmed by the Board of Immigration Appeals may appeal that decision directly to a
federal circuit court. See Martinez v. Napolitano, 704 F.3d 620, 622 (9th Cir. 2012); see also 8
U.S.C. § 1252(d). The States are not challenging an order of removal or petitioning for
judicial review of one. Section 1252(a)(5) is therefore inapplicable. Texas v. United States,
524 F. Supp. 3d 598, 640 (S.D. Tex. 2021) (hereinafter Texas I).
The same is true of 8 U.S.C. § 1252(b)(9). Section 1252(b)(9) provides:
Judicial review of all questions of law and fact . . . arising from
any action taken or proceeding brought to remove an alien
from the United States under this subchapter shall be
available o
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