Petitioners Brief — United States, et al., Petitioners v. Texas, et al.
Supreme Court briefSep 12, 2022
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No. 22-58
In the Supreme Court of the United States
UNITED STATES OF AMERICA, ET AL., PETITIONERS
v.
STATE OF TEXAS AND STATE OF LOUISIANA
ON WRIT OF CERTIORARI BEFORE JUDGMENT
TO THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
BRIEF FOR THE PETITIONERS
ELIZABETH B. PRELOGAR
Solicitor General
Counsel of Record
BRIAN M. BOYNTON
Principal Deputy Assistant
Attorney General
BRIAN H. FLETCHER
CURTIS E. GANNON
Deputy Solicitors General
VIVEK SURI
AUSTIN L. RAYNOR
Assistants to the Solicitor
General
DANIEL TENNY
MICHAEL SHIH
SEAN R. JANDA
Attorneys
Department of Justice
Washington, D.C. 20530-0001
SupremeCtBriefs@usdoj.gov
(202) 514-2217
QUESTIONS PRESENTED
1. Whether the state plaintiffs have Article III standing to challenge the Department of Homeland Security’s
Guidelines for the Enforcement of Civil Immigration
Law.
2. Whether the Guidelines are contrary to 8 U.S.C.
1226(c) or 8 U.S.C. 1231(a), or otherwise violate the Administrative Procedure Act.
3. Whether 8 U.S.C. 1252(f )(1) prevents the entry of
an order to “hold unlawful and set aside” the Guidelines
under 5 U.S.C. 706(2).
(I)
PARTIES TO THE PROCEEDING
Petitioners (defendants-appellants below) are the
United States of America; the U.S. Department of
Homeland Security (DHS); U.S. Customs and Border
Protection (CBP); U.S. Immigration and Customs Enforcement (ICE); U.S. Citizenship and Immigration Services (USCIS); Alejandro Mayorkas, in his official capacity as Secretary of Homeland Security; Chris Magnus, in
his official capacity as Commissioner of CBP; Tae D.
Johnson, in his official capacity as Acting Director of
ICE; and Ur Jaddou, in her official capacity as Director
of USCIS.
Respondents (plaintiffs-appellees below) are the
States of Texas and Louisiana.
(II)
TABLE OF CONTENTS
Page
Opinions below .............................................................................. 1
Jurisdiction .................................................................................... 1
Statutory provisions involved ...................................................... 2
Statement:
A. Background................................................................ 2
B. Proceedings below..................................................... 5
Summary of argument ................................................................. 7
Argument:
I. Respondents lack Article III standing ........................ 10
A. A federal policy’s incidental effects on a State
do not qualify as judicially cognizable injuries..... 11
B. A plaintiff lacks a judicially cognizable
interest in the enforcement of the law against
third parties ............................................................. 18
C. The district court’s standing analysis was
flawed ....................................................................... 20
II. The Guidelines are lawful ............................................. 24
A. The Guidelines do not violate Sections 1226
and 1231.................................................................... 24
B. The Guidelines are not arbitrary and
capricious ................................................................. 33
C. The Guidelines did not require notice and
comment ................................................................... 36
III. The district court’s remedy was unlawful ................... 39
A. Section 706(2) does not authorize vacatur ............ 40
B. Section 1252(f ) bars vacatur of the Guidelines .... 44
Conclusion ................................................................................... 49
Appendix — Statutory provisions........................................... 1a
(III)
IV
TABLE OF AUTHORITIES
Cases:
Page
Aberdeen & Rockfish R.R. v. Students Challenging
Regulatory Agency Procedures (SCRAP),
422 U.S. 289 (1975).............................................................. 46
Alfred L. Snapp & Son, Inc. v. Puerto Rico
ex rel. Barez, 458 U.S. 592 (1982) ................................ 12, 23
American Hosp. Ass’n v. Bowen,
834 F.2d 1037 (D.C. Cir. 1987) ........................................... 38
Arizona v. Biden:
40 F.4th 375 (6th Cir. 2022) .....................15, 20, 21, 23, 28
31 F.4th 469 (6th Cir. 2022) .................................. 7, 32, 43
Arizona v. United States, 567 U.S. 387 (2012) ..................... 2
Barton v. Barr, 140 S. Ct. 1442 (2020)................................... 2
Biden v. Texas, 142 S. Ct. 2528 (2022) ................................. 48
California v. Texas, 141 S. Ct. 2104 (2021) ................... 24, 43
Chrysler Corp. v. Brown, 441 U.S. 281 (1979) .................... 37
City of Chicago v. Morales, 527 U.S. 41 (1999)................... 28
DHS v. New York, 140 S. Ct. 599 (2020) ............................. 44
DHS v. Regents of the Univ. of Cal.,
140 S. Ct. 1891 (2020) ................................................... 36, 46
DaimlerChrysler Corp. v. Cuno, 547 U.S. 332 (2006) ........ 22
Demore v. Kim, 538 U.S. 510 (2003) .............................. 24, 26
Department of Commerce v. New York,
139 S. Ct. 2551 (2019) ............................................. 11, 24, 36
Direct Mktg. Ass’n v. Brohl, 575 U.S. 1 (2015) ................... 45
FCC v. Prometheus Radio Project,
141 S. Ct. 1150 (2021) ................................................... 33, 35
FEC v. Akins, 524 U.S. 11 (1998) ......................................... 20
Florida v. Mellon, 273 U.S. 12 (1927) .................. 7, 12, 13, 23
Fulton v. City of Philadelphia, 141 S. Ct. 1868 (2021) ...... 47
V
Cases—Continued:
Page
Garland v. Aleman Gonzalez,
142 S. Ct. 2057 (2022) ..................................10, 44, 45, 46, 47
Georgia v. Stanton, 73 U.S. (6 Wall.) 50 (1868) .................. 15
Gibbons v. Ogden, 22 U.S. (9 Wheat.) 1 (1824) ................... 14
Hecht Co. v. Bowles, 321 U.S. 321 (1944) ............................ 43
Heckler v. Chaney, 470 U.S. 821 (1985) ......................... 18, 28
Jennings v. Rodriguez, 138 S. Ct. 830 (2018) ..................... 26
Johnson v. Guzman Chavez, 141 S. Ct. 2271 (2021) ...... 4, 30
Laird v. Tatum, 408 U.S. 1 (1972) ....................................... 17
Lincoln v. Vigil, 508 U.S. 182 (1993) ................................... 36
Linda R.S. v. Richard D., 410 U.S. 614 (1973)........... 7, 18, 19
Lujan v. Defenders of Wildlife, 504 U.S. 555 (1992) .......... 23
Mallinckrodt Chem. Works v. Missouri
ex rel. Jones, 238 U.S. 41 (1915) ........................................ 41
Massachusetts v. EPA, 549 U.S. 497 (2007) ....................... 23
Massachusetts v. Laird, 400 U.S. 886 (1970) ...................... 16
Massachusetts v. Mellon, 262 U.S. 447 (1923)........ 12, 23, 40
McCulloch v. Maryland,
17 U.S. (4 Wheat.) 316 (1819) ............................................. 14
Mendoza v. Perez, 754 F.3d 1002 (D.C. Cir. 2014) ............. 38
Monsanto Co. v. Geertson Seed Farms,
561 U.S. 139 (2010).............................................................. 45
Motor Vehicle Mfrs. Ass’n of the U.S.,
Inc. v. State Farm Mut. Auto. Ins. Co.,
463 U.S. 29 (1983) ................................................... 33, 34, 35
Murphy v. NCAA, 138 S. Ct. 1461 (2018) ........................... 12
National Mining Ass’n v. McCarthy,
758 F.3d 243 (D.C. Cir. 2014) ....................................... 37, 38
Nielsen v. Preap, 139 S. Ct. 954 (2019) ......................... 26, 48
Patel v. Garland, 142 S. Ct. 1614 (2022) ....................... 25, 48
Pennsylvania v. Wheeling & Belmont
Bridge Co., 54 U.S. (13 How.) 518 (1852).......................... 12
VI
Cases—Continued:
Page
Printz v. United States, 521 U.S. 898 (1997) ................ 12, 13
Raines v. Byrd, 521 U.S. 811 (1997) ........................ 11, 15, 17
Reno v. American-Arab Anti-Discrimination
Comm., 525 U.S. 471 (1999) ..........................2, 28, 29, 32, 36
Sampson v. Murray, 415 U.S. 61 (1974) ............................. 47
Schlesinger v. Reservists Comm. to Stop
the War, 418 U.S. 208 (1974) .............................................. 17
South Carolina v. Katzenbach, 383 U.S. 301 (1966) .......... 23
Stark v. Wickard, 321 U.S. 288 (1944) ................................. 19
Sure-Tan, Inc. v. NLRB, 467 U.S. 883 (1984) .......... 7, 18, 19
Texas v. Biden, 20 F.4th 928 (5th Cir. 2021),
rev’d and remanded on other grounds,
142 S. Ct. 2528 (2022) ................................................... 40, 45
Town of Castle Rock v. Gonzales,
545 U.S. 748 (2005).................................................... 8, 29, 30
TransUnion LLC v. Ramirez,
141 S. Ct. 2190 (2021) ....................................... 10, 13, 19, 20
Trump v. Hawaii, 138 S. Ct. 2392 (2019) ............................ 44
Trump v. New York, 141 S. Ct. 530 (2020) .......................... 24
United States v. Richardson, 418 U.S. 166 (1974) ............. 17
Vietnam Veterans of Am. v. Secretary of
the Navy, 843 F.2d 528 (D.C. Cir. 1988) ........................... 38
Worcester v. Georgia, 31 U.S. (6 Pet.) 515 (1832) ............... 15
Wyoming v. Oklahoma, 502 U.S. 437 (1992) ...................... 13
Constitutions, statutes, and regulation:
U.S. Const.:
Art. II ............................................................................... 18
§ 1, Cl. 1 ...................................................................... 18
§ 3 (Take Care Clause) ........................................ 19, 20
Art. III ..................................................................... passim
§ 2, Cl. 1 ...................................................................... 10
VII
Constitution, statutes, and regulation—Continued:
Page
Articles of Confederation ...................................................... 12
Act of Aug. 24, 1937, ch. 754, § 3, 50 Stat. 752-753 ............. 41
Administrative Procedure Act,
5 U.S.C. 551 et seq., 5 U.S.C. 701 et seq. ............................. 6
5 U.S.C. 553(b) ........................................................... 36, 1a
5 U.S.C. 553(b)(A) ......................................9, 36, 37, 39, 1a
5 U.S.C. 703 ...............................................10, 40, 42, 44, 3a
5 U.S.C. 706 .................................................... 41, 42, 43, 3a
5 U.S.C. 706(2) ...................................................passim, 3a
5 U.S.C. 706(2)(A) ...................................................... 33, 4a
Alien Enemy Act, ch. 58, 1 Stat. 570 .................................... 13
Clean Air Act, 42 U.S.C. 7401 et seq. ................................... 23
Immigration and Nationality Act,
8 U.S.C. 1101 et seq. .............................................................. 2
8 U.S.C. 1101(a)(3)............................................................. 2
8 U.S.C. 1103(a) ............................................................... 38
8 U.S.C. 1103(a)(2)........................................................... 37
8 U.S.C. 1226 .................................................6, 8, 26, 27, 4a
8 U.S.C. 1226(a) ......................................................... 27, 4a
8 U.S.C. 1226(c) .................................................passim, 5a
8 U.S.C. 1226(c)(1) .............................................passim, 5a
8 U.S.C. 1226(c)(2) ........................................... 4, 27, 30, 6a
8 U.S.C. 1226(e) ............................................5, 8, 25, 26, 8a
8 U.S.C. 1231 ...................................................... 6, 8, 24, 8a
8 U.S.C. 1231(a) ......................................5, 8, 22, 30, 45, 8a
8 U.S.C. 1231(a)(1)..................................................... 31, 8a
8 U.S.C. 1231(a)(1)(A) ........................................... 4, 29, 8a
8 U.S.C. 1231(a)(1)(B) ................................................. 4, 8a
8 U.S.C. 1231(a)(2).............................................passim, 9a
8 U.S.C. 1231(h) .................................... 5, 8, 24, 26, 27, 13a
8 U.S.C. 1252 .............................................................. 20, 48
VIII
Statutes and regulation—Continued:
Page
8 U.S.C. 1252(f )........................................................ 47, 13a
8 U.S.C. 1252(f )(1) ....................................... passim, 13a
8 U.S.C. 1252(f )(2) ................................................ 48, 14a
8 U.S.C. 1252(g) ............................................................... 27
8 U.S.C. 1330(b)(3)(A)(i) ................................................. 31
8 U.S.C. 1357(g)(1) .......................................................... 31
8 U.S.C. 1357(g)(10)(B) ................................................... 31
8 U.S.C. 1536(a)(3)(B) ..................................................... 31
Sedition Act, ch. 74, 1 Stat. 596 ............................................ 13
6 U.S.C. 112(a) ....................................................................... 38
6 U.S.C. 112(b)(1)................................................................... 38
6 U.S.C. 202(5) ............................................................. 2, 30, 38
8 U.S.C. ................................................................................... 21
28 U.S.C. 1253 ........................................................................ 46
28 U.S.C. 2342 ........................................................................ 42
42 U.S.C. ................................................................................. 21
8 C.F.R. 2.1 ............................................................................. 38
Miscellaneous:
Administrative Procedure Act,
S. Doc. No. 248, 79th Cong., 2d Sess. (1946) .................... 42
Alexander M. Bickel, The Voting Rights Cases,
1966 Sup. Ct. Rev. 79 .......................................................... 17
Black’s Law Dictionary (6th ed. 1990) ............................... 47
Samuel L. Bray, Multiple Chancellors:
Reforming the National Injunction,
131 Harv. L. Rev. 417 (2017) ....................................... 42, 43
92 Cong. Rec. 2159 (1946) ..................................................... 42
Continued Detention of Aliens Subject to Final
Orders of Removal, 66 Fed. Reg. 56,967
(Nov. 14, 2001) ..................................................................... 32
IX
Miscellaneous—Continued:
Page
David Gutman, Bob Ferguson sued the Trump
administration 82 times. What’s he going
to do now?, The Seattle Times (Nov. 15, 2020),
https://www.seattletimes.com/seattle-news/politics/
bob-ferguson-sued-the-trump-administration-82times-whats-he-going-to-do-now/ ..................................... 16
H.R. Rep. No. 1980, 79th Cong., 2d Sess. (1946) ................ 43
H.R. Rep. No. 469, 104th Cong., 2d Sess. Pt. 1 (1996) ....... 49
John Harrison, Section 706 of the Administrative
Procedure Act Does Not Call for Universal
Injunctions or Other Universal Remedies,
37 Yale J. on Reg. Bull. 37 (2020) .......................... 40, 41, 42
Memorandum from Bo Cooper, Gen. Counsel,
INS, to Reg’l Counsel, Detention and Release
of Aliens with Final Orders of Removal
(Mar. 16, 2000)..................................................................... 32
Memorandum from Attorney General Eric H.
Holder, Jr., Re: Department Policy on Charging
and Sentencing (May 19, 2010),
https://www.justice.gov/sites/default/files/oip/
legacy/2014/07/23/holder-memo-chargingsentencing.pdf ..................................................................... 39
Memorandum from Deputy Attorney General Paul J.
McNulty, Re: Principles of Federal Prosecution of
Business Organizations (Dec. 12, 2006),
https://www.justice.gov/sites/default/files/dag/
legacy/2007/07/05/mcnulty_memo.pdf .............................. 39
Memorandum from Attorney General Jefferson B.
Sessions, III, Re: Marijuana Enforcement
(Jan. 4, 2018), https://www.justice.gov/opa/
press-release/file/1022196/download ................................ 39
X
Miscellaneous—Continued:
Page
Nicole Nixon, California Attorney General Files
Nine Lawsuits In One Day As Trump Leaves
Office, Capital Public Radio (Jan. 19, 2021),
https://www.capradio.org/articles/2021/01/19/
California-attorney-general-files-nine-lawsuitsin-one-day-as-trump-leaves-office/ ................................... 16
1 Richard J. Pierce, Administrative Law
Treatise (5th ed. 2010) ........................................................ 39
Press Release, Att’y Gen. of Tex., AG Paxton Again
Sues Biden Over Border (Apr. 28, 2022),
https://www.texasattorneygeneral.gov/news/
releases/ag-paxton-again-sues-biden-over-bordernew-immigration-rules-drastically-lower-asylumbar-forming ......................................................................... 16
S. Rep. No. 752, 79th Cong., 1st Sess. (1945) ...................... 43
State Documents on Federal Relations:
The States and the United States
(Herman V. Ames ed., 1911) .............................................. 14
4 The Debates in the Several State Conventions,
on the Adoption of the Federal Constitution
(Jonathan Elliot ed., 1836) ................................................. 14
U.S. Customs & Border Prot., Nationwide
Enforcement Encounters: Title 8 Enforcement
Actions and Title 42 Expulsions FY2021
(last modified Dec. 2, 2021), https://www.cbp.gov/
newsroom/stats/cbp-enforcement-statistic/
title-8-and-title-42-statistics-fy2021.................................. 21
U.S. Dep’t of Justice, Attorney General’s Manual on
the Administrative Procedure Act (1947) .................. 36, 43
Webster’s New International Dictionary
of the English Language (2d ed. 1958) ....................... 37, 40
Ann Woolhandler & Michael G. Collins:
Reining in State Standing, 94 Notre Dame
L. Rev. 2015 (2019) .................................................... 13
XI
Miscellaneous—Continued:
Page
State Standing, 81 Va. L. Rev. 387 (1995) .............. 13, 23
11A Charles Alan Wright et al.,
Federal Practice and Procedure (2013) ........................... 47
In the Supreme Court of the United States
No. 22-58
UNITED STATES OF AMERICA, ET AL., PETITIONERS
v.
STATE OF TEXAS AND STATE OF LOUISIANA
ON WRIT OF CERTIORARI BEFORE JUDGMENT
TO THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
BRIEF FOR THE PETITIONERS
OPINIONS BELOW
The opinion of the court of appeals denying a stay
(J.A. 451-486) is reported at 40 F.4th 205. The memorandum and order of the district court (J.A. 289-403) is
not yet reported but is available at 2022 WL 2109204.
An additional order of the district court (J.A. 446-450)
is available at 2022 WL 2720155.
JURISDICTION
The district court entered final judgment on June 10,
2022 (J.A. 404-405). The United States filed a notice of
appeal on June 13, 2022 (J.A. 406-408). The court of appeals’ jurisdiction rests on 28 U.S.C. 1291. The United
States applied to this Court for a stay on July 8, 2022.
On July 21, 2022, the Court treated the application as a
petition for a writ of certiorari before judgment and
granted the petition (J.A. 487). The Court’s jurisdiction
rests on 28 U.S.C. 1254(1) and 2101(e).
(1)
2
STATUTORY PROVISIONS INVOLVED
Relevant statutory provisions are reproduced in an
appendix to this brief. App., infra, 1a-14a.
STATEMENT
A. Background
A “principal feature” of the Immigration and Nationality Act (INA), 8 U.S.C. 1101 et seq., “is the broad discretion exercised by immigration officials.” Arizona v.
United States, 567 U.S. 387, 396 (2012). “[T]he Executive has discretion to abandon” removal of noncitizens
at “each stage” of the process: It “ ‘may decline to institute proceedings, terminate proceedings, or decline to
execute a final [removal] order.’ ” Reno v. AmericanArab Anti-Discrimination Comm., 525 U.S. 471, 483484 (1999) (citation omitted). 1
The Department of Homeland Security (DHS) and
its predecessor, the Immigration and Naturalization
Service (INS), have long adopted policies governing the
exercise of that discretion to harmonize their efforts
and focus their limited resources. J.A. 124-130 (discussing policies from 1909, 1976, 2000, 2010, 2011, 2014, and
2017). Consistent with that longstanding practice, Congress has made the Secretary of Homeland Security responsible for “[e]stablishing national immigration enforcement policies and priorities.” 6 U.S.C. 202(5).
In September 2021, the Secretary exercised that authority to issue the Guidelines for the Enforcement of
Civil Immigration Law. J.A. 110-120 (Guidelines). The
Guidelines apply to Immigration and Customs Enforcement (ICE), a component of DHS responsible for enThis brief uses the term “noncitizen” as equivalent to the statutory term “alien.” See Barton v. Barr, 140 S. Ct. 1442, 1446 n.2
(2020) (quoting 8 U.S.C. 1101(a)(3)).
1
3
forcement operations. A memorandum issued with the
Guidelines explained the considerations behind them.
J.A. 121-164 (Considerations Memo). The Secretary explained that priorities are essential because “there are
more than 11 million undocumented or otherwise removable noncitizens in the United States” and DHS
does not “have the resources to apprehend and seek the
removal of every one of these noncitizens.” J.A. 112.
The Guidelines identify three groups of noncitizens
as priorities for “apprehension and removal”: (1) those
who pose “a danger to national security”—for example,
suspected terrorists; (2) those who pose a “threat to
public safety, typically because of serious criminal
conduct”; and (3) those who pose a “threat to border
security”—i.e., noncitizens who arrived in the United
States after November 1, 2020. J.A. 113, 116.
The Guidelines also provide a framework for determining whether a noncitizen threatens public safety.
J.A. 113-115. Rather than relying on “bright lines or
categories,” the Guidelines call for an assessment of
“the totality of the facts and circumstances.” J.A. 113.
The Guidelines list “aggravating factors” weighing in
favor of enforcement action, including “the gravity of
the offense” and the “use of a firearm.” J.A. 114. They
also list “mitigating factors,” such as “tender age” and
military service. Ibid.
The Guidelines emphasize that they do “not compel
an action to be taken or not taken” in any particular case
and they leave “the exercise of prosecutorial discretion
to the judgment of [ICE] personnel.” J.A. 118. And although the Guidelines contemplate supervisory review
of line officers’ enforcement decisions, they do not “create any right or benefit, substantive or procedural, en-
4
forceable at law by any party in any administrative,
civil, or criminal matter.” J.A. 120.
Of particular relevance here, the Guidelines apply
only to “apprehension and removal,” J.A. 111, and do
“not provide guidance pertaining to detention and release determinations” for noncitizens already in DHS
custody, J.A. 415. The Considerations Memo thus explained that the Guidelines are “consistent with” and
“do not purport to override” two statutory provisions
requiring that certain noncitizens remain in detention
during removal proceedings or while awaiting removal.
J.A. 160.2
Under the first statutory provision, DHS “shall take
into custody” noncitizens convicted of certain offenses
when they are released from criminal custody, 8 U.S.C.
1226(c)(1), and “may release” such noncitizens “only” in
limited circumstances, 8 U.S.C. 1226(c)(2). DHS explained that once a noncitizen subject to Section 1226(c)
is in custody, “that noncitizen generally must remain in
custody during the pendency of removal proceedings”
unless release is authorized by Section 1226(c)(2) or a
court order. J.A. 160. But DHS added that it and INS
have consistently read Section 1226(c) to leave intact
the Executive Branch’s “general prosecutorial discretion” to “choose not to pursue removal of such an individual in the first place.” J.A. 159.
Under the second statutory provision, DHS “shall
remove” a noncitizen within 90 days after a final order
of removal or other triggering event.
8 U.S.C.
1231(a)(1)(A) and (B). The first sentence of Section
Both statutory provisions refer to the Attorney General, but
Congress transferred the enforcement of those provisions to the
Secretary. Johnson v. Guzman Chavez, 141 S. Ct. 2271, 2280 n.1
(2021).
2
5
1231(a)(2) adds that DHS “shall detain” the noncitizen
during that 90-day removal period, and the second sentence provides that “[u]nder no circumstance” shall
DHS release a noncitizen who is removable on certain
criminal or national-security grounds. DHS explained
that noncitizens in its custody who are subject to the
second sentence of Section 1231(a)(2) “must remain detained for the duration of the removal period unless release is required to comply with a court order.” J.A.
160.
B. Proceedings Below
1. Respondents Texas and Louisiana challenged the
Guidelines in the United States District Court for the
Southern District of Texas. J.A. 72-109. After a trial,
the court entered judgment in their favor and vacated
the Guidelines nationwide. J.A. 404-405.
The district court held that Texas has Article III
standing (and thus did not address Louisiana’s standing). J.A. 325 & n.54. The court concluded that the
Guidelines increase the number of noncitizens in Texas,
leading it to spend more money on law enforcement and
social services. J.A. 326; see J.A. 311-323, 327-329. The
court also found that the Guidelines harm Texas’s
parens patriae interest “in protecting its citizens” from
“criminal activity.” J.A. 327. The court additionally rejected the contentions that respondents’ statutory
claims were barred by 8 U.S.C. 1226(e), which provides
that “[n]o court may set aside any action or decision by
the [Secretary] under [Section 1226] regarding the detention or release of any alien,” and by 8 U.S.C. 1231(h),
which provides that “[n]othing in [Section 1231] shall be
construed to create any substantive or procedural right
or benefit that is legally enforceable by any party against
the United States.” See J.A. 341.
6
On the merits, the district court concluded that the
Guidelines violate the Administrative Procedure Act
(APA), 5 U.S.C. 551 et seq., 5 U.S.C. 701 et seq., in three
ways. First, the court determined that certain applications of the Guidelines contravene Sections 1226(c) and
1231(a), which it read to impose judicially enforceable
mandates to apprehend and detain the noncitizens described in those provisions. J.A. 345-367, 369-374. The
court believed that the Guidelines “contradict[] the detention mandates under Sections 1226(c) and 1231(a)(2)”
by granting DHS agents “discretion” to “decide who
will be detained and when.” J.A. 370. Second, the court
found the Guidelines arbitrary and capricious because
it concluded that DHS failed to adequately consider the
risk of recidivism and abscondment by noncitizens and
the effects of the Guidelines on States. J.A. 374-382.
Third, the court found that the Guidelines were improperly issued without notice and comment. J.A. 382-389.
The district court “vacat[ed]” the Guidelines nationwide. J.A. 397; see J.A. 393-400. The court invoked
5 U.S.C. 706(2), which directs a reviewing court to “set
aside” unlawful agency action. In the court’s view, Section 706(2) “contemplates wholesale vacatur of entire
rules.” J.A. 397. The court further held that vacatur
did not violate 8 U.S.C. 1252(f )(1), which provides that
lower courts lack jurisdiction to “enjoin or restrain” the
operation of statutes governing removal, including Sections 1226 and 1231. The court read that language to
encompass only injunctions, not vacatur. J.A. 400 n.79;
see J.A. 448-449.
2. The Fifth Circuit denied a stay pending appeal,
largely adopting the district court’s reasoning. J.A.
451-486. The Fifth Circuit acknowledged that its decision conflicted with a Sixth Circuit decision rejecting a
7
“nearly identical challenge” to the Guidelines. J.A. 486
(citing Arizona v. Biden, 31 F.4th 469 (6th Cir. 2022)
(Sutton, C.J.)).
SUMMARY OF ARGUMENT
I. Respondents lack Article III standing.
A. Respondents do not claim to have suffered any
“direct injury” at the hands of the federal government.
Florida v. Mellon, 273 U.S. 12, 18 (1927). They instead
assert only that enforcement decisions under the Guidelines will cause more noncitizens to be present within
their borders, which will lead them to spend more on
law enforcement and social services. But a State may
not sue the federal government based on such indirect,
derivative effects. Federal policies routinely have incidental effects on States’ expenditures, revenues, and
other activities. Yet such effects have never been
viewed as judicially cognizable injuries. As the recent
explosion in state suits vividly illustrates, respondents’
contrary view would allow any State to sue the federal
government about virtually any policy—sharply undermining Article III’s requirements and the separationof-powers principles they serve.
B. Respondents’ suit is also barred because “a citizen lacks standing to contest the policies of the prosecuting authority when he himself is neither prosecuted
nor threatened with prosecution.” Linda R.S. v. Richard D., 410 U.S. 614, 619 (1973). That principle applies
equally to immigration-enforcement actions. See SureTan, Inc. v. NLRB, 467 U.S. 883, 897 (1984). Here, the
States are neither subject to nor threatened with enforcement of the immigration laws. They may not challenge the federal government’s policies regarding the
enforcement of those laws against third parties. That is
especially so when Congress, far from attempting to
8
create a legally cognizable right to demand such enforcement, has generally limited judicial review under
the INA to suits brought by the noncitizens directly
regulated by the Act, rather than States or other third
parties.
C. The district court’s theory of standing also fails
on its own terms. The Guidelines simply provide for
DHS to prioritize some individuals over others when allocating its limited enforcement resources. That does
not necessarily mean that fewer noncitizens will be removed overall or that the States’ costs will increase.
II. The Guidelines are consistent with the INA, reasonably explained, and procedurally proper.
A. The Guidelines do not violate Section 1226 or
Section 1231. At the outset, Section 1226(e) imposes a
jurisdictional bar to respondents’ claim based on Section 1226(c). And Section 1231(h) precludes courts from
construing Section 1231(a) to create the binding obligation that respondents assert.
In any event, respondents’ statutory claims lack
merit. Section 1226 provides that DHS “shall take into
custody” certain criminal noncitizens.
8 U.S.C.
1226(c)(1). And Section 1231 provides that DHS “shall
detain” certain noncitizens with final orders of removal.
8 U.S.C. 1231(a)(2). The district court concluded that
the word “shall” imposes a judicially enforceable mandate to apprehend and detain everyone in those groups.
But that language does not ordinarily displace background principles of law-enforcement discretion, and
the context and history of the relevant provisions confirm that ordinary understanding here. See Town of
Castle Rock v. Gonzales, 545 U.S. 748 (2005). Especially
given perennial constraints on detention capacity, the
Executive retains authority to focus its limited re-
9
sources on those noncitizens who are higher priorities
for apprehension. The court’s contrary conclusion runs
counter to longstanding practice spanning multiple Administrations.
B. DHS’s decision to prioritize threats to national
security, public safety, and border security was both
reasonable and reasonably explained. The district court
faulted DHS for failing to adequately consider the risk
of recidivism and for giving too little weight to States’
interests, but the Guidelines specifically address both
issues and the court had no basis to second-guess DHS’s
judgments.
C. The Guidelines were exempt from APA noticeand-comment requirements under the exceptions for
“general statements of policy” and rules of agency
“practice” or “procedure.” 5 U.S.C. 553(b)(A). Agencies routinely rely on those exceptions to adopt enforcement priorities. Respondents’ contrary view would upend that longstanding practice.
III. This Court’s third question presented asks
whether 8 U.S.C. 1252(f )(1) prevents an order to “hold
unlawful and set aside” agency action under 5 U.S.C.
706(2). The answer depends on the meaning of “set
aside,” but the district court’s remedy here was unauthorized under either interpretation.
The district court read Section 706(2) to authorize
universal vacatur of a rule by any district court hearing
an APA challenge. Properly interpreted, however, Section 706(2) merely directs a court to disregard an unlawful agency action in resolving the case before it.
That understanding is consistent with fundamental
principles of judicial review. A court that “sets aside”
an unconstitutional statute, for example, denies effect
to the statute but does not nullify it or render it void. Of
10
course, when a court sets aside agency action, as when
it sets aside a statute, it may grant relief to the parties
before it. But in the absence of a special review statute,
5 U.S.C. 703 remits courts to traditional party-specific
remedies like injunctions and declaratory relief. The
district court’s contrary interpretation would transform
the APA from a codification of pre-existing principles
into a radical departure from them.
Even if Section 706(2) generally authorized vacatur,
Section 1252(f )(1) would prohibit that relief in this context. Section 1252(f )(1) generally precludes lower
courts from “order[ing] 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, 142 S. Ct. 2057, 2065
(2022). That is precisely what the district court’s vacatur does: It bars DHS from relying on the Guidelines
based on the court’s view of how the covered provisions
should be implemented. The court concluded that Section 1252(f )(1) is limited to injunctions. But the statutory text and this Court’s decisions interpreting similar
language foreclose that interpretation, which would
render Section 1252(f )(1) toothless in many of its core
applications.
ARGUMENT
I. RESPONDENTS LACK ARTICLE III STANDING
Article III empowers federal courts to decide only
“Cases” and “Controversies.” U.S. Const. Art. III, § 2,
Cl. 1. A case or controversy exists only if the plaintiff
has standing—that is, only if the plaintiff has suffered
an injury in fact that is fairly traceable to the challenged
action and would likely be redressed by judicial relief.
TransUnion LLC v. Ramirez, 141 S. Ct. 2190, 2203
(2021). An Article III injury, in turn, requires the inva-
11
sion of a “legally and judicially cognizable” interest,
which means the dispute must be of the sort “ ‘traditionally thought to be capable of resolution through the judicial process.’ ” Raines v. Byrd, 521 U.S. 811, 819
(1997) (citation omitted).
The district court held that Texas has standing based
on a chain of possible effects: that the Guidelines will
increase the State’s population of noncitizens; that some
of those noncitizens will commit crimes or use social services; and that Texas will then expend additional sums
in response. J.A. 311-327. That theory is erroneous for
multiple independent but mutually reinforcing reasons.
Such incidental effects on a State do not rank as judicially cognizable injuries. Plaintiffs lack a judicially
cognizable interest in the enforcement of the law
against third parties. And the district court was in any
event wrong to believe that fewer noncitizens overall
will be removed or the States’ costs will necessarily increase.
A. A Federal Policy’s Incidental Effects On A State Do Not
Qualify As Judicially Cognizable Injuries
A State may sue the federal government when the
State is an object of the challenged action—for example,
when the federal government requires it to act or to refrain from acting, determines how much federal funding
it receives, or deprives it of a legal right. See Department of Commerce v. New York, 139 S. Ct. 2551, 2565
(2019) (relying on federal funding). But a State may not
sue the federal government simply because a federal
policy has incidental effects on the State. Our Nation’s
history and tradition show that such peripheral effects
do not qualify as “legally and judicially cognizable” injuries. Raines, 521 U.S. at 819. A contrary holding
would inject the federal courts into all manner of policy
12
controversies at the behest of States seeking to secure
by court order what they could not obtain through the
political process.
1. This Court’s precedents on state standing distinguish between suits against private defendants to vindicate proprietary interests and suits against the United
States to vindicate governmental interests. See Alfred
L. Snapp & Son, Inc. v. Puerto Rico ex rel. Barez, 458
U.S. 592, 601-602 (1982). When a State sues a private
defendant to vindicate a proprietary interest—say,
when it seeks to collect a debt or enforce a contract—it
may proceed “on the same ground and to the same extent as a corporation or individual.” Pennsylvania v.
Wheeling & Belmont Bridge Co., 13 How. 518, 561
(1852). But when a State sues the United States, additional principles come into play. See, e.g., Massachusetts v. Mellon, 262 U.S. 447, 485-486 (1923) (holding
that States may not bring parens patriae suits against
the United States).
One such principle is that a State may sue the United
States only if it has suffered a “direct injury” at the
hands of the federal government. Florida v. Mellon,
273 U.S. 12, 18 (1927). In our federal system, the United
States and the States share sovereignty over the same
territory and people. Unlike the Articles of Confederation, the Constitution empowers the United States to
act on those people directly, rather than through the
States. Murphy v. NCAA, 138 S. Ct. 1461, 1476 (2018).
The United States and the States are thus “two orders
of government, each with its own direct relationship
* * * to the people.” Printz v. United States, 521 U.S.
898, 920 (1997) (citation omitted). The United States’
policies regulating the people within a State will inevitably have derivative effects on the State itself. But the
13
autonomy of the national and state sovereigns, acting
directly upon individuals “within their respective
spheres,” ibid. (citation omitted), is inconsistent with
the notion that a State has a judicially cognizable interest in avoiding the incidental effects of federal policies—especially where, as here, those effects derive
from the independent actions of individuals in the State.
Thus, in Florida v. Mellon, this Court held that Florida lacked standing to challenge the constitutionality of
a federal inheritance tax. 273 U.S. at 18. Florida argued that the tax would cause the State financial harm
by prompting the “withdrawal of property” and diminishing its tax base. Id. at 16. But the Court rejected
that theory, explaining that Florida was required to
show a “direct injury” and any harm caused by the tax
was, “at most, only remote and indirect.” Id. at 18; cf.
Wyoming v. Oklahoma, 502 U.S. 437, 448 (1992)
(“Courts of Appeals have denied standing to States
where the claim was that actions taken by the United
States Government agencies had injured a State’s economy and thereby caused a decline in general tax revenues.”).
2. History and tradition—which “offer a meaningful
guide to the types of cases that Article III empowers
federal courts to consider,” TransUnion, 141 S. Ct. at
2204 (citation omitted)—confirm that the indirect and
incidental effects of federal policies on States are not
judicially cognizable injuries. States have felt the ripple
effects of federal policies since the beginning of the Republic, but for most of our history it would have been
unthinkable for a State to sue the federal government
because of such effects. See Ann Woolhandler & Michael G. Collins, Reining in State Standing, 94 Notre
Dame L. Rev. 2015, 2017-2020 (2019); Ann Woolhandler
14
& Michael G. Collins, State Standing, 81 Va. L. Rev.
387, 397-446 (1995).
Consider how Jeffersonian States reacted when a
Federalist Congress adopted the Alien and Sedition
Acts in 1798. Virginia and Kentucky adopted resolutions condemning the laws as unconstitutional. 4 The
Debates in the Several State Conventions, on the Adoption of the Federal Constitution 554-555, 566-570 (Jonathan Elliot ed., 1836). Virginia specifically complained
that the Acts’ restrictions on immigration harmed the
State, because its “situation render[ed] the easy admission of artisans and laborers an interest of vast importance.” Id. at 557. Yet neither State sued the Adams
Administration to enjoin it from executing the Acts.
Or consider how Federalist States responded to
President Jefferson’s embargo of 1807. Massachusetts
denounced it as “unjust, oppressive, and unconstitutional” and encouraged affected citizens to “apply for
redress” in “the judicial courts.” State Documents on
Federal Relations: The States and the United States 34
(Herman V. Ames ed., 1911). Connecticut and Delaware
declared the embargo “incompatible with the constitution” and asserted that it had “brought distress and
ruin” for their citizens. Id. at 37, 41. Yet none of those
States sued the Jefferson Administration.
Our constitutional history would have developed
quite differently if States could have sued the federal
government any time federal policies had incidental effects on them. Maryland would have sued the Bank of
the United States to enjoin its operations. Cf. McCulloch v. Maryland, 4 Wheat. 316 (1819). New York would
have sued the Monroe Administration to enjoin issuance
of federal steamboat licenses. Cf. Gibbons v. Ogden,
9 Wheat. 1 (1824). Georgia would have sued the Jackson
15
Administration to contest federal assertions of power
over Indian lands. Cf. Worcester v. Georgia, 6 Pet. 515
(1832). And this Court would not have rejected Georgia’s attempt to sue the Johnson Administration to challenge Reconstruction. Cf. Georgia v. Stanton, 6 Wall.
50 (1868). The absence of such suits from the historical
record confirms that they were not traditionally regarded as “cases” capable of resolution through the judicial process. See Raines, 521 U.S. at 826 (rejecting a
theory of legislative standing because “[i]t is evident
from several episodes in our history that in analogous
confrontations between one or both Houses of Congress
and the Executive Branch, no suit was brought”).
3. Respondents’ contrary theory has startling implications. On their view, which the Fifth Circuit endorsed, any federal action that increases “ ‘the number
of aliens’ ” in a State “establish[es] standing” because it
indirectly increases the State’s expenditures. J.A. 460
(citation omitted). Other States could use equivalent
logic to claim injury from any federal action reducing
their noncitizen populations, on the theory that noncitizens pay state taxes. If such incidental financial effects
satisfied Article III, every immigration-policy dispute
between the federal government and the States would
end up in federal court.
Nor is the problem limited to immigration. Virtually
any federal action—from prosecuting crime to imposing
taxes to managing federal property—could be said to
have some incidental effect on state finances. Because
almost every federal policy will affect the people within
the States, almost every federal policy will indirectly affect the States themselves. If such effects satisfy Article III, “what limits on state standing remain?” Ari-
16
zona v. Biden, 40 F.4th 375, 386 (6th Cir. 2022) (Sutton,
C.J.).
Massachusetts v. Laird, 400 U.S. 886 (1970), shows
where respondents’ theory leads. There, Massachusetts sued the Secretary of Defense to enjoin the Vietnam War. The Court summarily rejected the suit, id.
at 886, but Justice Douglas argued in dissent that the
State had standing, id. at 887-891. On respondents’ theory, the Court was wrong and Justice Douglas was
right. Surely the Vietnam War caused at least one dollar in peripheral harm to Massachusetts—for example,
because drafted Bay Staters would earn less taxable income while away or be entitled to state veterans’ benefits after returning.
Experience confirms that if States are allowed to
challenge every federal policy to which their elected
leaders object, they will. In recent years, States (and
their political subdivisions) have inundated federal
courts with suits challenging federal policies on politically salient issues. Several lawsuits ago, Texas’s Attorney General announced “his 11th immigrationrelated lawsuit against the Biden Administration—the
27th overall against Biden.” Press Release, Att’y Gen.
of Tex., AG Paxton Again Sues Biden Over Border
(Apr. 28, 2022). California, for its part, “filed 122 lawsuits against the Trump administration, an average of
one every two weeks.” Nicole Nixon, California Attorney General Files Nine Lawsuits In One Day As
Trump Leaves Office, Capital Public Radio (Jan. 19,
2021). To take just one other example, Washington
“filed 82 lawsuits against the federal government” during the Trump Administration. David Gutman, Bob
Ferguson sued the Trump administration 82 times.
17
What’s he going to do now?, The Seattle Times (Nov. 15,
2020).
A regime in which any State could challenge virtually
any federal policy “would make a mockery” of Article
III’s case-or-controversy requirement. Alexander M.
Bickel, The Voting Rights Cases, 1966 Sup. Ct. Rev. 79,
89-90. It would enable States to treat the federal courts
as “an open forum for the resolution of political or ideological disputes.” United States v. Richardson, 418
U.S. 166, 192 (1974) (Powell, J., concurring). It would
“open the Judiciary to an arguable charge of providing
‘government by injunction.’ ” Schlesinger v. Reservists
Comm. to Stop the War, 418 U.S. 208, 222 (1974). It
would distort the separation of powers by turning federal judges into “virtually continuing monitors of the
wisdom and soundness of Executive action.” Laird v.
Tatum, 408 U.S. 1, 15 (1972). And it would harm the
Judiciary itself by “embroiling the federal courts” in
“power contest[s]” “at the height of [their] political tension.” Raines, 521 U.S. at 833 (Souter, J., concurring in
the judgment).
4. Under the principles discussed above, respondents lack standing. The Guidelines do not tell respondents what to do or what not to do, do not operate on respondents directly, and do not deprive respondents of
any legal rights. The Guidelines simply tell federal officials how to enforce federal law in a field that the Constitution commits to the federal government. Any indirect, incidental effects that the Guidelines may have on
respondents do not qualify as judicially cognizable injuries.
18
B. A Plaintiff Lacks A Judicially Cognizable Interest In
The Enforcement Of The Law Against Third Parties
Respondents lack a judicially cognizable injury for
an additional reason: A plaintiff generally lacks standing to challenge the government’s policies concerning
enforcement actions against third parties.
1. In Linda R.S. v. Richard D., 410 U.S. 614 (1973),
this Court established that “a citizen lacks standing to
contest the policies of the prosecuting authority when
he himself is neither prosecuted nor threatened with
prosecution.” Id. at 619. There, a mother sued a district
attorney who had failed to prosecute the father of her
child for not paying child support. Id. at 616-619. The
district attorney had adopted a policy against prosecuting “fathers of illegitimate children,” and the mother
challenged the policy as a denial of equal protection. Id.
at 616. The Court held that she lacked standing, explaining that, “in American jurisprudence at least, a private citizen lacks a judicially cognizable interest in the
prosecution or nonprosecution of another.” Id. at 619.
The same principle applies to immigration enforcement. A plaintiff has “no judicially cognizable interest
in procuring enforcement of the immigration laws.”
Sure-Tan, Inc. v. NLRB, 467 U.S. 883, 897 (1984) (citing
Linda R.S., 410 U.S. at 619). And “an agency’s refusal
to institute proceedings shares to some extent the characteristics of the decision of a prosecutor in the Executive Branch not to indict—a decision which has long
been regarded as the special province of the Executive
Branch.” Heckler v. Chaney, 470 U.S. 821, 832 (1985).
Those principles reflect both Article II and Article
III constraints. Article II vests the executive power in
the President and directs him to take care that the laws
are faithfully executed. U.S. Const. Art. II, § 1, Cl. 1;
19
Art. II, § 3. Decisions about “how to prioritize and how
aggressively to pursue legal actions against defendants
who violate the law” therefore fall “within the discretion
of the Executive Branch, not within the purview of private plaintiffs (and their attorneys).” TransUnion, 141
S. Ct. at 2207. Under Article III, meanwhile, federal
courts sit to protect against “the exertion of unauthorized administrative power,” not to compel agencies to
exert power against third parties. Stark v. Wickard,
321 U.S. 288, 310 (1944).
2. Those principles decide this case. Respondents
object that DHS is declining to enforce the immigration
laws against noncitizens whom respondents would prefer to see apprehended and removed. But respondents
have “no judicially cognizable interest in procuring enforcement of the immigration laws” against third parties. Sure-Tan, 467 U.S. at 897.
Respondents cannot evade that rule by arguing that
the Executive’s enforcement policies indirectly affect
them. Enforcement policies routinely have indirect effects on crime victims and others, but such effects are
not judicially cognizable. The mother in Linda R.S., for
example, had “an interest in the support of her child.”
410 U.S. at 619. Even so, she lacked standing to “contest the policies of the prosecuting authority” because
she was “neither prosecuted nor threatened with prosecution.” Ibid. The same logic applies here.
3. Nor can respondents claim that Congress has
granted them a cognizable interest in having noncitizens within their territory apprehended and removed
by the federal government. Just the opposite: The INA
contemplates judicial review in suits by the noncitizens
20
directly regulated by the Act—not by States or other
third parties. 8 U.S.C. 1252. 3
C. The District Court’s Standing Analysis Was Flawed
Even putting aside the fundamental problems discussed above, the district court’s standing analysis was
flawed on its own terms.
1. Neither the record nor common sense supports
the assertion that the Guidelines will increase “the number of criminal aliens and aliens with final orders of removal released into Texas,” resulting in “increased
state costs.” J.A. 311, 318 (capitalization omitted). The
Guidelines do not limit the number of noncitizens DHS
may detain. Nor do they prohibit DHS from detaining
any particular noncitizen. They simply establish priorities for using DHS’s limited resources. “That the National Government decides to remove or detain person
A over person B does not establish that it will pursue
fewer people.” Arizona, 40 F.4th at 383.
It is also pure speculation that the Guidelines will
lead Texas to spend more money. Although the district
court believed that some noncitizens who would otherwise have been removed will remain in the country beIn other contexts, this Court has held that “Congress may ‘elevate to the status of legally cognizable injuries concrete, de facto
injuries that were previously inadequate in law.’ ” TransUnion, 141
S. Ct. at 2204-2205 (citation omitted); see id. at 2216-2218 (Thomas,
J., dissenting). Because Congress has not purported to grant any
such right here, this case presents no occasion to decide whether
Congress could allow States to sue the United States based on the
incidental effects of federal policies, or whether it could grant States
a right to the enforcement of federal immigration law. Compare
FEC v. Akins, 524 U.S. 11, 26 (1998) (suggesting that Congress may
in some circumstances grant a right to enforcement of the law
against others), with id. at 36-37 (Scalia, J., dissenting) (arguing that
the Take Care Clause precludes such a right).
3
21
cause of the Guidelines, J.A. 311-317, other noncitizens
who would have remained in the country will instead be
prioritized for removal. Indeed, the Guidelines prioritize the very population about which Texas appears to
be most concerned: “noncitizens who pose the greatest
risks to public safety.” Arizona, 40 F.4th at 383. The
Guidelines thus may well “decrease burdens on the
States.” Ibid. (emphasis added).
In concluding otherwise, the district court asserted
that the relatively low number of removals carried out
in Fiscal Year (F Y ) 2021 “make[s] clear that the [Guidelines are] dramatically impacting civil immigration enforcement.” J.A. 316. But F Y 2021 ended in September
2021, before the Guidelines even took effect. And removals under Title 8 were down in F Y 2021 (and
F Y 2020) because DHS was expelling hundreds of thousands of noncitizens encountered at the southwest border under a Title 42 public-health order that took effect
in March 2020 (the middle of F Y 2020). U.S. Customs &
Border Prot., Nationwide Enforcement Encounters:
Title 8 Enforcement Actions and Title 42 Expulsions
FY2021 (last modified Dec. 2, 2021) (showing more than
one million expulsions in F Y 2021).
Similarly, the district court stated that the Guidelines have decreased the number of criminal noncitizens
in DHS custody. J.A. 315. But the court’s own statistics
show that the number has been essentially unchanged
since the Guidelines took effect. J.A. 316. And the decrease earlier in 2021 is explained by the fact that
DHS’s “detention population is increasingly occupied
by recent border crossers.” J.A. 413.
The district court emphasized that DHS has rescinded detainers for some noncitizens in Texas’s cus-
22
tody. J.A. 311-313.4 But the record contains evidence
of just 15 rescissions for noncitizens in Texas’s custody
and no rescissions for those in Louisiana’s custody after
the Guidelines took effect. J.A. 312. DHS’s choice to
focus its limited resources on people other than those 15
individuals does not show that the Guidelines have increased the total number of criminal noncitizens in
Texas. And the small number of rescissions underscores the attenuated nature of respondents’ asserted
injury.
Finally, the district court overlooked the principle
that “a plaintiff must demonstrate standing for each
claim he seeks to press.” DaimlerChrysler Corp. v.
Cuno, 547 U.S. 332, 352 (2006). Texas has raised claims
under two INA provisions: Section 1226(c), which addresses the detention of “criminal aliens,” 8 U.S.C.
1226(c), and Section 1231(a)(2), which addresses the detention of “aliens ordered removed,” 8 U.S.C. 1231(a).
J.A. 98-102. Yet the court’s analysis of financial harm
to Texas focused entirely on the population covered by
Section 1226(c), citing “Increased State Costs” from
“Increased Numbers Of Criminal Aliens,” J.A. 318. The
court made no comparable findings for the population
covered by Section 1231(a)(2), noncitizens with final orders of removal. At a minimum, therefore, respondents
lack standing to bring their Section 1231(a)(2) claim.
2. Although the district court relied primarily on a
theory of financial harm, it also held that Texas would
suffer harm as parens patriae because noncitizens not
prioritized under the Guidelines could commit crimes
against Texans. J.A. 326. Respondents and the Fifth
A detainer is a request that a law-enforcement agency notify
DHS before releasing a noncitizen and hold the noncitizen for up to
48 hours to facilitate a transfer to DHS custody. J.A. 299.
4
23
Circuit have made no serious effort to defend that holding. Stay Opp. 22; J.A. 459. Understandably so. “A
State does not have standing as parens patriae to bring
an action against the Federal Government.” Snapp, 458
U.S. at 610 n.16; see South Carolina v. Katzenbach, 383
U.S. 301, 324 (1966); Florida v. Mellon, 273 U.S. at 18;
Massachusetts v. Mellon, 262 U.S. at 485-486.
3. Finally, the district court stated that, under Massachusetts v. EPA, 549 U.S. 497 (2007), Texas is entitled
to “special solicitude” in assessing Article III standing.
J.A. 325 n.54. That is incorrect: In affording the State
“special solicitude” in Massachusetts, this Court explicitly relied on two features of that case that are absent
here. 549 U.S. at 520.
First, Massachusetts involved the threatened loss of
territory owned by and subject to the sovereignty of the
State—a harm that this Court has long treated as distinctive and legally cognizable. See State Standing, 81
Va. L. Rev. at 415-416 (discussing 19th-century cases).
This case, in contrast, involves “indirect fiscal burdens”
that allegedly flow from the Guidelines—a “humdrum
feature” of federal policies. Arizona, 40 F.4th at 386.
Second, Massachusetts attached “critical importance” to the State’s “procedural right” under the Clean
Air Act to challenge the denial of a petition for rulemaking on emissions standards. 549 U.S. at 516, 518. “[A]
person who has been accorded a procedural right to protect his concrete interests can assert that right without
meeting all the normal standards for redressability and
immediacy.” Lujan v. Defenders of Wildlife, 504 U.S.
555, 572 n.7 (1992). But the INA creates no procedural
right for any third party to challenge immigrationenforcement and related policies.
24
The district court thus erred in extending Massachusetts to create a new doctrine that States are favored
litigants for purposes of Article III. This Court has
never endorsed that proposition and has not afforded
States “special solicitude” in any other case. To the contrary, the Court’s decisions since Massachusetts have
consistently analyzed state standing without granting
States favorable treatment simply because they are
States. See, e.g., California v. Texas, 141 S. Ct. 2104,
2116-2120 (2021); Trump v. New York, 141 S. Ct. 530,
534-537 (2020) (per curiam); Department of Commerce,
139 S. Ct. at 2565.
II. THE GUIDELINES ARE LAWFUL
The district court concluded that some applications
of the Guidelines contravene Sections 1226(c) and
1231(a)(2), that the Guidelines are arbitrary and capricious, and that their issuance required notice-andcomment rulemaking. Each of those holdings is wrong,
and each is a stark rejection of longstanding practice
spanning multiple Administrations.
A. The Guidelines Do Not Violate Sections 1226 And 1231
The Guidelines’ focus is narrow. By their terms, the
Guidelines govern only “the apprehension and removal
of noncitizens.” J.A. 111. They do “not provide guidance pertaining to detention and release determinations.” J.A. 415. The Guidelines are thus “fully consistent with” and “do not purport to override” statutory
requirements that DHS continue to detain noncitizens
already in its custody. J.A. 160. This suit is instead a
dispute about the Guidelines’ policies for apprehension
of noncitizens not yet in DHS’s custody, an area in
which the Executive Branch has traditionally enjoyed
significant discretion. Respondents’ claims that those
25
policies violate Sections 1226(c) and 1231(a)(2) are meritless.
1. As a threshold matter, Section 1226(e) precludes
respondents’ Section 1226(c) claim concerning criminal
noncitizens, and Section 1231(h) precludes their Section
1231(a)(2) claim concerning noncitizens with final orders of removal. 5
a. Section 1226(e) states:
The [Secretary’s] discretionary judgment regarding
the application of this section shall not be subject to
review. No court may set aside any action or decision
by the [Secretary] under this section regarding the
detention or release of any alien or the grant, revocation, or denial of bond or parole.
8 U.S.C. 1226(e). The second sentence, the portion at
issue here, uses broad language: “No court may set
aside any action or decision by the [Secretary] under
this section regarding the detention or release of any
alien.” Ibid. (emphases added); see Patel v. Garland,
142 S. Ct. 1614, 1622 (2022) (noting the breadth of “any”
and “regarding”). That expansive language encompasses decisions to apprehend as well as decisions to
forgo apprehension. The aspects of the Guidelines that
implicate Section 1226(c) therefore qualify as “any action or decision by the [Secretary] under this section regarding the detention or release of any alien.” 8 U.S.C.
The contention that Section 1226(e) precludes review is properly
before this Court because it is jurisdictional. Demore v. Kim, 538
U.S. 510, 516 (2003). And because Section 1231(h) sets forth a rule
of construction for interpreting Section 1231, the contention that
Section 1231(h) precludes respondents’ suit is fairly included within
the question whether the Guidelines violate Section 1231(a)(2). See
Stay Appl. 27 (invoking Section 1231(h)). Both contentions were
pressed and passed upon below. J.A. 341.
5
26
1226(e). “No court may set aside” those aspects of the
Guidelines. Ibid.
In finding Section 1226(e) inapplicable, the district
court relied on opinions in which this Court or a plurality concluded that, despite Section 1226(e), noncitizens
detained under Section 1226 could file habeas petitions
challenging the legislative or regulatory framework
governing their detention. J.A. 343; see Nielsen v.
Preap, 139 S. Ct. 954, 961-962 (2019) (opinion of Alito,
J.); Jennings v. Rodriguez, 138 S. Ct. 830, 841 (2018)
(opinion of Alito, J.); Demore v. Kim, 538 U.S. 510, 516517 (2003). But that line of opinions rests at bottom on
the premise that Section 1226(e) lacks the “particularly
clear statement” required to “bar habeas review.”
Demore, 538 U.S. at 517. Because this is not a habeas
case, that clear-statement rule does not apply. And
other Members of the Court have concluded that Section 1226(e) bars review even in the habeas context, a
conclusion that applies a fortiori here. See Preap, 139
S. Ct. at 974-975 (Thomas, J., concurring in part and
concurring in the judgment).
b. Section 1231(h) states:
Nothing in this section shall be construed to create
any substantive or procedural right or benefit that is
legally enforceable by any party against the United
States or its agencies or officers or any other person.
8 U.S.C. 1231(h). That provision’s plain terms preclude
a court from reading Section 1231(a)(2) to grant a State
a legally enforceable entitlement to the apprehension,
detention, or removal of noncitizens.
The district court found Section 1231(h) inapplicable
on the ground that it “applies only to aliens,” not to
States. 524 F. Supp. 3d 598, 637 (emphasis omitted); see
J.A. 342 (referring to that earlier decision). But Section
27
1231(h) precludes enforcement “by any party.” 8 U.S.C.
1231(h) (emphasis added). If Congress meant to limit
Section 1231(h) to claims brought by noncitizens, it
would have said so. Cf. 8 U.S.C. 1252(g) (precluding judicial review of certain claims brought by “any alien”).
2. Respondents’ statutory claims in any event lack
merit.
a. Section 1226 governs apprehension and detention
of noncitizens pending removal proceedings. Subsection (a) provides that “an alien may be arrested and detained pending a decision on whether the alien is to be
removed from the United States.” 8 U.S.C. 1226(a).
Subsection (c)(1) then provides that the Secretary
“shall take into custody any alien who” is removable on
specified criminal or national-security grounds “when
the alien is released” from criminal custody. 8 U.S.C.
1226(c)(1). Finally, subsection (c)(2) provides that the
Secretary “may release an alien described in” Section
1226(c)(1) “only” as part of a witness-protection program. 8 U.S.C. 1226(c)(2).
In the Considerations Memo, DHS acknowledged
that subsection (c)(2) limits its discretion to release
criminal noncitizens already in its custody, but adhered
to its longstanding view that subsection (c)(1) leaves intact its discretion as to the apprehension of those not
yet in its custody. J.A. 159-160; see J.A. 420-428 (explaining DHS’s practices). The district court concluded,
however, that because subsection (c)(1) provides that
the Secretary “shall” take criminal noncitizens into custody, it displaces any discretion that the Secretary may
have had. J.A. 346-353. That is incorrect.
First, Section 1226 applies only during the pendency
of removal proceedings. 8 U.S.C. 1226(a). It follows
that subsection (c)(1)’s “shall take into custody” lan-
28
guage comes into play only if DHS decides to institute
or maintain removal proceedings in the first place. See
Arizona, 40 F.4th at 390-391. But that threshold decision to institute proceedings is committed to DHS’s “absolute discretion.” Chaney, 470 U.S. at 831; see Reno v.
American-Arab Anti-Discrimination Comm., 525 U.S.
471, 483 (1999) (AADC ). So whatever duties subsection
(c)(1) may impose, it does not require DHS to arrest
someone DHS is not proceeding against at all.
Second, even when DHS does decide to initiate proceedings against a particular noncitizen, Section 1226(c)
does not displace the Executive’s traditional discretion
over decisions to apprehend individuals not yet in its custody. This Court has explained that “law-enforcement
discretion” is so “deep-rooted” that it remains intact
“even in the presence of seemingly mandatory legislative commands.” Town of Castle Rock v. Gonzales, 545
U.S. 748, 761 (2005). Thus, in Castle Rock, the Court
declined to find “a true mandate of police action” in a
state law that provided that police officers “ ‘shall enforce’ ” restraining orders and “ ‘shall arrest’ ” violators.
Id. at 759, 761 (citation and emphases omitted). In another case, the Court rejected the notion that “mandatory language” in a city ordinance left the police with
“no discretion” over enforcement, observing that, as a
matter of “common sense,” “all police officers must use
some discretion in deciding when and where to enforce
city ordinances.” City of Chicago v. Morales, 527 U.S.
41, 62 n.32 (1999). In a third case, the Court held that
the government retained “complete discretion” over enforcement, even though the applicable statute provided
that violators “ ‘shall’ ” be fined or imprisoned. Chaney,
470 U.S. at 835. And in a fourth case, the Court affirmed
that “the Executive has discretion to abandon” removal
29
at any stage—even after a removal order, AADC, 525
U.S. at 483—despite the INA’s directive that the Secretary “shall remove” a noncitizen who has been ordered
removed, 8 U.S.C. 1231(a)(1)(A).
Likewise for Section 1226(c)(1). It is “hard to imagine” that Congress denied DHS discretion to consider
“the circumstances of the violation” or “the competing
duties” of the agency when deciding whether to expend
scarce law-enforcement resources to pursue and apprehend a particular noncitizen. Castle Rock, 545 U.S. at
761. And it is implausible to read subsection (c)(1) to
impose a duty to apprehend that is “open-ended as to
priority, duration and intensity” of law-enforcement efforts. Id. at 762 (citation omitted).
Third, the district court’s interpretation of Section
1226(c)(1) is both unprecedented and infeasible. Congress has not appropriated “the resources to apprehend
and seek the removal” of every removable criminal
noncitizen, J.A. 112; see J.A. 432, reflecting its understanding that the provision does not require DHS to apprehend, detain, and remove every covered individual.
Requiring DHS “to arrest, take into custody, and detain
all known noncitizens described in § 1226(c)” “would
completely overwhelm [DHS’s] current capacity.” J.A.
432. Devoting all available detention space to those
noncitizens would also compromise DHS’s ability to
protect the public from more serious threats. For example, “a noncitizen with two petty theft offenses could
be subject” to Section 1226(c), but one “with pending
charges for sex offenses or other violent felonies may
not.” Ibid. The court erred in reading the INA to require such counterintuitive and unprecedented results.
Finally, Congress has vested the Secretary with the
responsibility to establish “national immigration en-
30
forcement policies and priorities.” 6 U.S.C. 202(5).
That reflects Congress’s recognition that the Secretary
is best positioned to determine how to allocate DHS’s
limited resources across different aspects of the INA’s
reticulated scheme. If respondents’ view were to prevail and any State could obtain an order requiring the
Secretary to concentrate enforcement on one aspect of
the scheme rather than another, it would be States and
federal courts, rather than the Executive, that would
determine how the agency uses its limited resources.
The district court’s contrary rationales lack merit.
The court reasoned that the word “shall” in Section
1226(c)(1) connotes a judicially enforceable command
because the statute elsewhere uses the word “may.”
J.A. 352. But this Court has read “shall” as accommodating background principles of law-enforcement discretion even when the legislature has elsewhere used
“may.” See Castle Rock, 545 U.S. at 764 n.11. The district court also quoted cases in which this Court described Section 1226(c) as providing for “mandatory detention.” See J.A. 353; Johnson v. Guzman Chavez, 141
S. Ct. 2271, 2280 n.2 (2021). But those cases involved
noncitizens’ efforts to obtain release from custody.
DHS has acknowledged that Section 1226(c)(2) requires
it to continue to detain covered noncitizens who are already in its custody, see J.A. 160, but the Guidelines do
not conflict with that detention mandate because they
address only apprehension and removal, not detention
and release. See p. 4, supra.
b. The Guidelines also comply with Section
1231(a)(2). Section 1231(a) governs the detention and
removal of noncitizens who have already been ordered
removed. It directs DHS to remove a noncitizen within
31
a 90-day removal period. 8 U.S.C. 1231(a)(1). It then
provides:
During the removal period, the [Secretary] shall detain the alien. Under no circumstance during the removal period shall the [Secretary] release an alien
who has been found [removable on certain criminal
and national-security grounds].
8 U.S.C. 1231(a)(2). In the Considerations Memo, DHS
acknowledged that Section 1231(a)(2)’s second sentence
constrains its discretion to release criminal noncitizens
already in its custody. J.A. 160. But the district court
concluded that, because the first sentence provides that
DHS “shall detain” noncitizens with final orders of removal, 8 U.S.C. 1231(a)(2), it “mandate[s] detention” of
such noncitizens, J.A. 334.
In considering whether the first sentence requires
“detention,” J.A. 334, the district court focused on the
wrong issue. To repeat: The Guidelines govern only
“the apprehension and removal of noncitizens” and do
“not provide guidance pertaining to detention and release determinations.” J.A. 111, 415. Regardless of
whether the first sentence of Section 1231(a)(2) requires continued detention—an issue that this Court
need not resolve here—it does not require the apprehension of noncitizens not yet in DHS’s custody. Section 1231(a)(2) refers only to detention and, unlike other
provisions of the INA, does not speak to apprehension
at all. See, e.g., 8 U.S.C. 1330(b)(3)(A)(i) (“apprehension, detention, and removal”); 8 U.S.C. 1357(g)(1) (“investigation, apprehension, or detention”); 8 U.S.C.
1357(g)(10)(B) (“apprehension, detention, or removal”);
8 U.S.C. 1536(a)(3)(B) (“arrest and detention”).
In addition, the arguments made above in the context
of Section 1226(c)(1) also apply to Section 1231(a)(2). See
32
pp. 27-30, supra. Both provisions operate in an area,
removal of noncitizens, in which the Executive retains
significant discretion. Indeed, this Court has recognized that “the Executive has discretion to abandon” removal of noncitizens at “each stage” of the process, including by “ ‘declin[ing] to execute a final [removal] order,’ ” AADC, 525 U.S. at 483-484 (citation omitted)—
notwithstanding Section 1231(a)(2)’s “shall remove”
language. That principle reflects that the word “shall”
does not ordinarily displace law-enforcement discretion. And if DHS “were required to arrest, take into
custody, and detain all known noncitizens described in
* * * § 1231(a)(2), it would completely overwhelm
[DHS’s] current capacity.” J.A. 432.
In any event, the district court’s interpretation is
wrong on its own terms. Although the first sentence of
Section 1231(a)(2) provides that DHS “shall detain”
noncitizens with final removal orders, the second sentence adds that “[u]nder no circumstance” may DHS release noncitizens with final removal orders who have
committed certain crimes. 8 U.S.C. 1231(a)(2). If the
first sentence mandated detention of all noncitizens
with final removal orders, leaving no room for discretion, the second sentence would be superfluous. Arizona v. Biden, 31 F.4th 469, 481 (6th Cir. 2022). Across
administrations, the Executive has therefore long read
the first sentence not to impose a detention mandate.
See, e.g., Continued Detention of Aliens Subject to Final Orders of Removal, 66 Fed. Reg. 56,967, 56,969
(Nov. 14, 2001); Memorandum from Bo Cooper, Gen.
Counsel, INS, to Reg’l Counsel, Detention and Release
of Aliens with Final Orders of Removal 1 (Mar. 16,
2000).
33
B. The Guidelines Are Not Arbitrary And Capricious
The APA authorizes courts to set aside agency action
that is “arbitrary, capricious, an abuse of discretion, or
otherwise not in accordance with law.” 5 U.S.C.
706(2)(A). “The scope of review under the ‘arbitrary
and capricious’ standard is narrow and a court is not to
substitute its judgment for that of the agency.” Motor
Vehicle Mfrs. Ass’n of the U.S., Inc. v. State Farm Mut.
Auto. Ins. Co., 463 U.S. 29, 43 (1983). Although “the
available data” often “do not settle a regulatory issue,”
id. at 52, “[t]he APA imposes no general obligation on
agencies to conduct or commission their own empirical
or statistical studies,” FCC v. Prometheus Radio Project, 141 S. Ct. 1150, 1160 (2021). Instead, an agency
need only “examine the relevant data and articulate a
satisfactory explanation for its action including a ‘rational connection between the facts found and the choice
made.’ ” State Farm, 463 U.S. at 43 (citation omitted).
1. The Guidelines easily satisfy that standard because they are both “reasonable and reasonably explained.” Prometheus, 141 S. Ct. at 1158. The Guidelines reasonably focus DHS’s limited resources on
threats to public safety, national security, and border
security. J.A. 113-116. And the Secretary offered far
more extensive explanation for the Guidelines than is
customary for agency enforcement memoranda. See
J.A. 189-212; Administrative Record 43-64 (Nov. 4,
2021) (prioritization memoranda issued in previous administrations).
The accompanying Considerations
Memo, for example, explains the necessity for prioritization in light of resource limitations and discusses the
“key considerations” underlying the Guidelines, including public safety, coordination of law-enforcement efforts, the potential impact on States, the effect of statu-
34
tory mandates, and the virtues and vices of alternative
approaches. J.A. 144 (capitalization omitted); see J.A.
130-137, 144-164.
2. The district court determined that DHS “did not
substantively consider recidivism” “among criminal aliens.” J.A. 376. But DHS did consider that issue, which
the court had viewed as “a central concern” in enjoining
an earlier, interim priorities memorandum. J.A. 145.
The Guidelines expressly address “the district court’s
concern by calling for a context-specific consideration
of aggravating and mitigating factors, the seriousness
of an individual’s criminal record, the length of time
since the offense, and evidence of rehabilitation” to determine whether a noncitizen poses “a meaningful risk
of recidivism.” J.A. 146. In identifying “those factors
that make an offender particularly more likely or less
likely to recidivate,” DHS relied on “its expert judgment and experience” as well as relevant empirical literature. J.A. 146-147 & n.43.
The district court did not dispute the data on which
DHS relied. See J.A. 377 (“The studies cited may indeed be correct.”). Instead, it faulted DHS for invoking
(in part) “studies about criminality among all aliens,”
rather than “studies about aliens who have already been
convicted of a serious crime.” J.A. 376. The court
pointed to data purportedly showing that “criminal aliens recidivate” at “alarmingly high rates.” J.A. 377378.
Even accepting the district court’s characterization,
the data it cited do not conflict with the Guidelines,
which recognize criminality as a critical public-safety
consideration and set priorities that account for greater
risk factors. J.A. 113-114, 146-148. The court thus
failed to show that the agency “offered an explanation
35
for its decision that runs counter to the evidence before
the agency, or is so implausible that it could not be ascribed to a difference in view or the product of agency
expertise.” State Farm, 463 U.S. at 43.
The district court’s analysis of data regarding abscondment, J.A. 378-379, fares no better. Those data do
not identify the factors that make a particular noncitizen likely to abscond, and thus have no bearing on
whether the agency’s prioritization scheme is reasonable.
3. The district court also determined that DHS
failed to consider “the costs its decision imposes on the
States” or “their reliance interests.” J.A. 380. To the
contrary, the Considerations Memo includes an entire
section entitled “Impact on States.” J.A. 149-155. The
Memo discusses the Guidelines’ potential “negative effects” “on States,” in the form of both “costs” and the
“undermining [of ] reliance interests.” J.A. 150. Although DHS found it difficult to quantify any “indirect,
downstream impacts” on States, it observed that the
“net” effects could be positive. J.A. 150-151 & n.49, 153.
And DHS was unaware of any State that had “materially changed its position to its detriment” on the basis
of prior enforcement policies. J.A. 155.
The district court discounted the agency’s analysis
as “lip service.” J.A. 380. But the court identified neither any empirical literature computing costs to the
States nor any actions that individual States have taken
in reliance on prior policies. And the “APA imposes no
general obligation on agencies to conduct or commission
their own empirical or statistical studies.” Prometheus,
141 S. Ct. at 1160.
In any event, DHS ultimately concluded that “none
of the asserted negative effects on States” outweighs
36
the “benefits” of the Guidelines. J.A. 150. The States’
purported financial costs and “reliance interests * * *
are but one factor to consider,” and an agency is entitled
to “determine, in the particular context before it, that
other interests and policy concerns outweigh” those
considerations. DHS v. Regents of the Univ. of Cal., 140
S. Ct. 1891, 1914 (2020). “Making that difficult decision
[i]s the agency’s job.” Ibid. DHS did that job here.
This Court should decline to “second-guess[ ]” the Secretary’s “value-laden decisionmaking and * * * weighing of incommensurables under conditions of uncertainty.” Department of Commerce, 139 S. Ct. at 2571.
C. The Guidelines Did Not Require Notice And Comment
The APA generally requires notice and comment for
legislative rules. 5 U.S.C. 553(b). Like previous enforcement priorities issued by DHS and INS without
notice and comment, see J.A. 125-130, the Guidelines
are exempt from that requirement as a “general statement[ ] of policy” or a “rule[ ] of agency organization,
procedure, or practice,” 5 U.S.C. 553(b)(A).
1. A statement of policy “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 (1993) (citation omitted); see U.S. Dep’t of
Justice, Attorney General’s Manual on the Administrative Procedure Act 30 n.3 (1947) (Attorney General’s
Manual). That is precisely what the Guidelines do. The
INA confers enforcement discretion on DHS, see p. 2,
supra; AADC, 525 U.S. at 483-484, and the Guidelines
“explain[ ] how the agency * * * will exercise [that]
broad enforcement discretion,” National Mining Ass’n
v. McCarthy, 758 F.3d 243, 252 (D.C. Cir. 2014) (Kavanaugh, J.).
37
Unlike legislative rules, the Guidelines do not “impose legally binding obligations or prohibitions on regulated parties.” National Mining Ass’n, 758 F.3d at
251; see Chrysler Corp. v. Brown, 441 U.S. 281, 302
(1979). The Guidelines do not “create any right or benefit, substantive or procedural, enforceable at law by
any party.” J.A. 120. Indeed, the Guidelines themselves
—as opposed to individual enforcement decisions made
by ICE officers—do not regulate private parties at all.
And to the extent noncitizens may seek internal review
if they believe they do not fall within the priorities identified in the Guidelines, J.A. 384; see J.A. 119, that review process is simply an avenue to petition the agency
to exercise enforcement discretion—a request that any
noncitizen could make even in the Guidelines’ absence.
The district court concluded that the Guidelines do
not qualify as a general statement of policy because
they “bind[ ] DHS personnel.” J.A. 384. At the outset,
the court misapprehended the discretion the Guidelines
reserve to individual ICE officers. The Guidelines do
“not compel an action to be taken or not taken,” and instead leave “the exercise of prosecutorial discretion to
the judgment of [ICE] personnel.” J.A. 118. The Guidelines’ aggravating and mitigating factors also “are not
exhaustive,” allowing personnel to “evaluate the individual and the totality of the facts and circumstances
and exercise their judgment accordingly.” J.A. 115.
In any event, the fact that the Guidelines instruct
ICE officers “to consider and apply certain priorities
and factors,” J.A. 384, is irrelevant. A uniform “policy”
is still a “policy.” 5 U.S.C. 553(b)(A); see Webster’s New
International Dictionary of the English Language
1908 (2d ed. 1958) (Webster’s) (defining “policy” as “[a]
settled or definite course or method adopted and fol-
38
lowed by a government”) (emphasis omitted). And a
central virtue of policy statements is that they allow
senior officials to guide lower-level personnel in a public
way, thereby promoting predictability and transparency. See National Mining Ass’n, 758 F.3d at 250
(deeming an “instruction to [agency] staff ” a statement
of policy). Here, Congress has vested the Secretary
with the authority to enforce the INA and exercise prosecutorial discretion. 8 U.S.C. 1103(a); 6 U.S.C. 202(5).
Statements of policy like the Guidelines allow the Secretary to guide the exercise of that discretion even after
he has delegated it. See 8 U.S.C. 1103(a)(2) (authorizing
the Secretary to “control, direct[ ], and supervis[e]” his
subordinates); see also 6 U.S.C. 112(a) and (b)(1); 8
C.F.R. 2.1. The district court’s contrary approach
would hamstring the Secretary’s ability to supervise his
agents.
2. In the alternative, the Guidelines qualify as a
rule of “agency organization, procedure, or practice.”
5 U.S.C. 553(b)(A); see Vietnam Veterans of Am. v. Secretary of the Navy, 843 F.2d 528, 538 (D.C. Cir. 1988)
(observing that this exception “is quite independent of
whether the procedures will be binding”). A rule of procedure or practice regulates the agency’s own behavior
without changing the substantive rights of parties outside the agency. See Mendoza v. Perez, 754 F.3d 1002,
1023 (D.C. Cir. 2014). Consistent with that principle,
the Guidelines merely “urg[e]” ICE’s “enforcement
agents to concentrate their limited resources on particular areas where” the agency “believes [their] attention
will prove most fruitful.” American Hosp. Ass’n v.
Bowen, 834 F.2d 1037, 1050 (D.C. Cir. 1987).
The district court’s contrary conclusion rested on its
view that the Guidelines have a “substantial impact” on
39
noncitizens and States. J.A. 386. That analysis is untethered from the APA’s text, which focuses on the nature of the rule, not the scope of the impact. The Guidelines do not modify the substantive rights or obligations
of States or noncitizens under the INA; instead, they
regulate only DHS’s internal “practice” and “procedure.” 5 U.S.C. 553(b)(A).
3. Finally, it bears emphasis that agencies routinely
adopt important enforcement policies without notice
and comment. See 1 Richard J. Pierce, Administrative
Law Treatise § 6.3, at 424 (5th ed. 2010); see also, e.g.,
Memorandum from Attorney General Jefferson B. Sessions, III, Re: Marijuana Enforcement (Jan. 4, 2018);
Memorandum from Attorney General Eric H. Holder,
Jr., Re: Department Policy on Charging and Sentencing (May 19, 2010); Memorandum from Deputy Attorney General Paul J. McNulty, Re: Principles of Federal
Prosecution of Business Organizations (Dec. 12, 2006).
Requiring public comment for such policies would upend long-settled practices across the Executive Branch.
The APA does not require that disruptive result.
III. THE DISTRICT COURT’S REMEDY WAS UNLAWFUL
This Court also granted certiorari on the question
whether “8 U.S.C. §1252(f )(1) prevents the entry of an
order to ‘hold unlawful and set aside’ the Guidelines under 5 U.S.C. §706(2).” J.A. 487. The answer to that
question depends on what the term “set aside” means.
Properly interpreted, Section 706(2) simply directs a
court to decline to give effect to an unlawful agency action in deciding the case at hand and granting relief to
the parties before it. A decision that “sets aside” agency
action in that sense would not violate Section 1252(f )(1)
(though certain accompanying relief, such as an injunction, could). The district court, however, read Section
40
706(2) to authorize it to “vacat[e],” rather than merely
disregard, the Guidelines. J.A. 397. That remedy was
doubly flawed: Section 706(2) does not authorize vacatur in the first place, and even if it did, Section
1252(f )(1) would bar that relief in this context.
A. Section 706(2) Does Not Authorize Vacatur
Section 706(2) provides that a “reviewing court shall
* * * hold unlawful and set aside agency action, findings, and conclusions found to be” “arbitrary [and] capricious,” “without observance of procedure required
by law,” or “otherwise not in accordance with law.”
5 U.S.C. 706(2). The district court interpreted that language as authorization to vacate the Guidelines. J.A.
393-394. And under Fifth Circuit precedent, vacatur
renders an agency decision “void.” Texas v. Biden, 20
F.4th 928, 957 (2021), rev’d and remanded on other
grounds, 142 S. Ct. 2528 (2022). But Section 706(2) does
not authorize such relief; indeed, it does not pertain to
remedies at all, which are instead governed by Section
703. Rather, Section 706(2) is a rule of decision directing the reviewing court to disregard unlawful “agency
action, findings, and conclusions” in resolving the case
before it.
1. When used in the context of judicial review, “set
aside” can refer to vacating an order—one might say,
for example, that an appellate court “sets aside” a
lower-court judgment. See John Harrison, Section 706
of the Administrative Procedure Act Does Not Call for
Universal Injunctions or Other Universal Remedies,
37 Yale J. on Reg. Bull. 37, 42 (2020) (Harrison). But
“[t]hose words can also refer to a court’s decision to regard a purportedly valid juridical act as ineffective.” Id.
at 43; see Webster’s 2291 (defining “set aside” as a: “To
41
put to one side; discard; dismiss” and b: “To reject from
consideration; overrule”) (emphasis omitted).
Statutes and judicial opinions often use the phrase in
the latter sense when they refer to courts’ “setting
aside” unconstitutional legislation. See, e.g., Act of Aug.
24, 1937, ch. 754, § 3, 50 Stat. 752-753; Mallinckrodt
Chem. Works v. Missouri ex rel. Jones, 238 U.S. 41, 54
(1915); see also Harrison 43-45 (discussing other examples). The phrasing in that context means that courts
disregard unconstitutional statutes when deciding the
cases before them, not that they vacate the statutes.
Courts “have no power per se to review and annul acts
of Congress on the ground that they are unconstitutional.” Massachusetts v. Mellon, 262 U.S. at 488. Instead, judicial review “amounts to little more than the
negative power to disregard an unconstitutional enactment.” Ibid.
Treating Section 706(2) as an instruction to disregard unlawful agency action thus aligns ordinary judicial review of agency action with judicial review of legislation. And it is also the only interpretation consistent
with the statutory context. Section 706(2) requires a
court to “hold unlawful and set aside agency action,
findings, and conclusions.” It would make no sense for
a court to vacate an agency’s “findings” and “conclusions.” But it is entirely sensible for a court to disregard unfounded agency findings and conclusions in resolving the case before it.
In addition, because Section 706 provides the substantive standard for finding agency action “unlawful,”
5 U.S.C. 706(2), it must be capable of application in all
forms of action where Section 706 applies. See Harrison
45-46. The APA expressly permits challenges to agency
action to be raised in “actions for declaratory judg-
42
ments or [on] writs of prohibitory or mandatory injunction or habeas corpus,” as well as “in civil or criminal
proceedings for judicial enforcement.” 5 U.S.C. 703.
No one would suggest that a court hearing a habeas petition or an enforcement action could vacate a regulation. But Section 706(2) fits naturally in those contexts
if it is understood as an instruction to disregard unlawful agency actions, conclusions, and findings.
2. Properly understood, therefore, Section 706(2)’s
instruction to “set aside” unlawful agency action does
not dictate any particular remedy. See Samuel L. Bray,
Multiple Chancellors: Reforming the National Injunction, 131 Harv. L. Rev. 417, 452 (2017) (Bray). Of
course, when a court declines to apply an agency action
to the case before it on the ground that the action is unlawful, it may issue relief to give effect to that decision.
But a different provision, Section 703, points outside the
APA for the available remedies. As Section 703 recognizes, some cases are governed by a “special statutory
review proceeding,” 5 U.S.C. 703, which may authorize
a court of appeals to vacate an order or rule, see Harrison 39-40; see also, e.g., 28 U.S.C. 2342. Where no such
proceeding is available, Section 703 provides that “[t]he
form of proceeding” under the APA is a traditional
“form of legal action,” such as “actions for declaratory
judgments or writs of prohibitory or mandatory injunction.”
3. The historical record confirms that Congress expected APA litigants to obtain traditional remedies under Section 703 and did not intend to create a novel remedy of universal vacatur in Section 706. The legislative
history repeatedly refers to Section 703 as governing
remedies. See, e.g., Administrative Procedure Act,
S. Doc. No. 248, 79th Cong., 2d Sess. 36-37 (1946); 92
43
Cong. Rec. 2159 (1946). And both committee reports
paraphrase Section 706(2) as authorizing a court to hold
agency action unlawful, without mentioning the phrase
“set aside,” see S. Rep. No. 752, 79th Cong., 1st Sess. 27
(1945) (Senate Report); H.R. Rep. No. 1980, 79th Cong.,
2d Sess. 44 (1946)—an unlikely choice if that language
was intended to establish a new and far-reaching remedy.
Moreover, Congress enacted the APA against a
background rule that statutory remedies should be construed in accordance with “traditions of equity practice.” Hecht Co. v. Bowles, 321 U.S. 321, 329 (1944).
Consistent with that principle, the legislative history
explains that the APA “declares the existing law concerning the scope of judicial review.” Senate Report 44.
And the Attorney General similarly observed shortly after the APA’s enactment that the statute “constitute[s]
a general restatement of the principles of judicial review embodied in many statutes and judicial decisions.”
Attorney General’s Manual 93.
Interpreting Section 706 to require universal vacatur would bring about the kind of remedial innovation
that Congress disclaimed. Remedies “ordinarily ‘operate with respect to specific parties,’ ” rather than “ ‘on
legal rules in the abstract,’ ” California, 141 S. Ct. at
2115 (citation omitted), but vacatur does the opposite,
see J.A. 449-451. In addition, the district court concluded that “by necessity, vacating a rule applies universally,” J.A. 398, but universal relief “upset[s] the
bedrock practice of case-by-case judgments with respect to the parties in each case,” Arizona, 31 F.4th at
484 (Sutton, C.J., concurring); see Bray 438 n.121. And
reading Section 706(2) to authorize hundreds of district
judges around the Nation to grant universal relief in
44
every APA case would perpetuate all of the now-familiar
problems with nationwide injunctions. See, e.g., DHS v.
New York, 140 S. Ct. 599, 599-601 (2020) (Gorsuch, J.,
concurring in the grant of stay); Trump v. Hawaii, 138
S. Ct. 2392, 2425-2433 (2019) (Thomas, J., concurring).6
B. Section 1252(f ) Bars Vacatur Of The Guidelines
Even if Section 706(2) authorized vacatur, Section
1252(f )(1) would nevertheless bar lower courts (but not
this Court) from granting that relief in this context.
1. Section 1252(f )(1) states that, “[r]egardless 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 specified provisions, with one exception not relevant here.
8 U.S.C. 1252(f )(1). Section 1252(f )(1) applies here by
its plain terms. It is undisputed that Sections 1226(c)
and 1231(a) are among the specified provisions. As this
Court recently explained, Section 1252(f )(1)’s reference
to “the ‘operation of ’ the relevant statutes is best understood to refer to the Government’s efforts to enforce
or implement them.” Garland v. Aleman Gonzalez, 142
S. Ct. 2057, 2064 (2022). Accordingly, Section 1252(f )(1)
generally prohibits lower courts from “order[ing] federal officials to take or to refrain from taking actions to
enforce, implement, or otherwise carry out the specified
statutory provisions.” Id. at 2065.
The government has argued that even if vacatur were an available remedy under the APA—either under Section 706(2) or because
vacatur could in some circumstances be an appropriate remedy under Section 703—background principles of equity would ordinarily
dictate that such orders be limited to vacating the challenged action
as applied to the parties before the court, not universally. Stay
Appl. 37-38.
6
45
That is exactly what the district court did when it vacated the Guidelines. That remedy rendered the Guidelines “void,” Texas v. Biden, 20 F.4th at 957, based on
the court’s view of how the government is required to implement Sections 1226(c) and 1231(a). The court’s order
thus “enjoin[ed] or restrain[ed]” the “operation,” 8 U.S.C.
1252(f )(1), of those provisions. As the court explained,
its vacatur means that DHS “no longer ha[s] nationwide
immigration enforcement guidance.” J.A. 395; see J.A.
394. DHS has been forced to halt all implementation of
the Guidelines, and thousands of ICE officers around
the country have been told that they may not rely on the
Secretary’s instructions. Just as in Aleman Gonzalez,
therefore, the court’s order “require[s] officials to * * *
refrain from actions that,” “in the Government’s view,”
“are allowed by” Sections 1226(c) and 1231(a). 142 S. Ct.
at 2065.
2. The district court concluded that Section
1252(f )(1) is limited to injunctions and therefore does
not bar vacatur. J.A. 400 n.79, 448-449. The court also
objected on policy grounds to the government’s position. J.A. 449-450. The court’s analysis was mistaken
in multiple independent respects.
a. Like an injunction, vacatur “restrict[s] or stop[s]
official action,” Direct Mktg. Ass’n v. Brohl, 575 U.S. 1,
13 (2015), by prohibiting officials from relying on the
agency action under review. Vacatur is a “less drastic
remedy,” Monsanto Co. v. Geertson Seed Farms, 561
U.S. 139, 165 (2010), than an injunction prohibiting the
agency from re-adopting the challenged policy in the future. But a vacatur is practically equivalent to an injunction compelling the agency to rescind or stop implementing the challenged action. Vacatur thus possesses
the hallmark of the relief barred by Section 1252(f )(1):
46
It “order[s] federal officials to take or to refrain from
taking actions to enforce, implement, or otherwise carry
out” the law. Aleman Gonzalez, 142 S. Ct. at 2065.
Consistent with that view, courts routinely treat vacatur as functionally equivalent to an injunction. In Regents, this Court observed that its affirmance of the district court’s “order vacating the rescission ma[de] it unnecessary to examine the propriety of the nationwide
scope of the injunctions issued by” the lower courts. 140
S. Ct. at 1916 n.7. Similarly here, the district court denied respondents’ request for an injunction in part on
the ground that “vacatur is sufficient to address the injury.” J.A. 400.
This Court, moreover, has repeatedly given a broad
interpretation to terms such as “injunction” in other
statutes. For example, the Court interpreted a statute
conferring jurisdiction over an appeal from an “injunction in any civil action * * * required * * * to be heard
and determined by a district court of three judges,” 28
U.S.C. 1253 (emphasis added), to apply to orders with a
“coercive * * * effect.” Aberdeen & Rockfish R.R. v.
Students Challenging Regulatory Agency Procedures
(SCRAP), 422 U.S. 289, 307 (1975). In reaching that
conclusion, the Court commented that it had “repeatedly exercised jurisdiction under [the provision] over
appeals from orders * * * not cast in injunctive language but which by their terms simply ‘set aside’ or declined to ‘set aside’ orders of the [agency].” Id. at 308
n.11 (citation omitted). Here, too, the district court’s
order vacating the Guidelines qualifies as an injunction
barred by Section 1252(f )(1).
b. In any event, Section 1252(f )(1), on its face, is not
limited to injunctions. Instead, it prohibits lower-court
orders that “enjoin or restrain” the Executive Branch’s
47
operation of the covered provisions. 8 U.S.C. 1252(f )(1)
(emphasis added). The common denominator of the
terms “enjoin” and “restrain,” ibid., is that they involve
coercion. See Black’s Law Dictionary 529 (6th ed. 1990)
(“[e]njoin” means to “require,” “command,” or “positively direct”) (emphasis omitted); id. at 1314 (“[r]estrain”
means to “limit” or “put compulsion upon”) (emphasis
omitted). Together, they indicate that a court may not
impose coercive relief that “interfere[s] with the Government’s efforts to operate” the covered provisions in
a particular way. Aleman Gonzalez, 142 S. Ct. at 2065.
That meaning easily encompasses judicial vacatur. The
district court’s contrary interpretation would read the
word “restrain” out of the statute.
The district court pointed to Section 1252(f )(1)’s
title—“Limit on injunctive relief,” 8 U.S.C. 1252(f )—in
support of its narrow reading. J.A. 448-449. But a “title
or heading should never be allowed to override the plain
words of a text.” Fulton v. City of Philadelphia, 141
S. Ct. 1868, 1879 (2021) (citation omitted). And Section
1252(f )(1)’s text—it bears repeating—uses not only “enjoin” but also “restrain.”
Respondents have contended (Stay Opp. 32) that the
term “restrain,” 8 U.S.C. 1252(f )(1), encompasses only
temporary restraining orders. That approach does not
eliminate the superfluity, because temporary restraining orders are a species of injunctive relief and thus already covered by the term “enjoin.” Ibid.; see Sampson
v. Murray, 415 U.S. 61, 87 (1974); 11A Charles Alan
Wright et al., Federal Practice and Procedure § 2941,
at 33 (2013) (describing “three types of injunctions,” including a “temporary-restraining order”). And respondents’ position creates interpretive problems for
the adjoining subsection, which states that “no court
48
shall enjoin the removal of any alien pursuant to a final
order” except on a certain showing. 8 U.S.C. 1252(f )(2).
On respondents’ view, that prohibition would allow courts
to grant temporary restraining orders even when they
could not grant preliminary or permanent injunctions—
an implausible result that respondents do not attempt
to defend.
c. Lastly, the district court reasoned that the government’s interpretation “would likely insulate virtually every rule related to the INA from judicial review.”
J.A. 449. But such “policy concerns cannot trump the
best interpretation of the statutory text.” Patel, 142
S. Ct. at 1627. As this Court recently explained in addressing another provision of Section 1252, “the text
and context of [the provision]—which is, after all, a
jurisdiction-stripping statute—clearly indicate” that
the lower courts lack jurisdiction. Ibid.
In any event, the district court’s criticism is misplaced. Section 1252(f )(1) “does not deprive the lower
courts of all subject matter jurisdiction” over claims involving the covered provisions. Biden v. Texas, 142
S. Ct. 2528, 2539 (2022). It does not preclude respondents from obtaining declaratory relief, see Preap, 139
S. Ct. at 962 (opinion of Alito, J.), or an individual
noncitizen in removal proceedings from obtaining coercive relief, see 8 U.S.C. 1252(f )(1), or any party from obtaining any relief in this Court, see Biden v. Texas, 142
S. Ct. at 2539.
Instead, Section 1252(f )(1) simply prohibits lower
courts from granting coercive remedies based on Congress’s considered judgment that only this Court should
have the authority to grant programmatic relief against
the Executive Branch’s implementation of the INA. Interpreting Section 1252(f )(1) to exclude vacatur would
49
open a gaping loophole in that provision’s coverage and
thwart Congress’s fundamental purpose. It would allow
any district court to forbid the Executive Branch’s chosen means of “operati[ng]” the specified provisions nationwide, 8 U.S.C. 1252(f )(1), forcing the government either to seek emergency relief or to abandon enforcement of the challenged policy pending appeal. That outcome conflicts with Congress’s expectation that Section
1252(f )(1) would ensure that—to the extent removal
procedures could be challenged in court—those procedures would “remain in force while such lawsuits are
pending” (i.e., until this Court ruled). H.R. Rep. No.
469, 104th Cong., 2d Sess. Pt. 1, at 161 (1996). Section
1252(f )(1)’s purpose, like its text and context, thus provides no basis for drawing an artificial distinction between injunctions and vacatur.
CONCLUSION
The judgment of the district court should be reversed.
Respectfully submitted.
ELIZABETH B. PRELOGAR
Solicitor General
BRIAN M. BOYNTON
Principal Deputy Assistant
Attorney General
BRIAN H. FLETCHER
CURTIS E. GANNON
Deputy Solicitors General
VIVEK SURI
AUSTIN L. RAYNOR
Assistants to the Solicitor
General
DANIEL TENNY
MICHAEL SHIH
SEAN R. JANDA
Attorneys
SEPTEMBER 2022
APPENDIX
1.
5 U.S.C. 553 provides:
Rule making
(a) This section applies, according to the provisions
thereof, except to the extent that there is involved—
(1) a military or foreign affairs function of the
United States; or
(2) a matter relating to agency management or
personnel or to public property, loans, grants, benefits, or contracts.
(b) General notice of proposed rule making shall be
published in the Federal Register, unless persons subject thereto are named and either personally served or
otherwise have actual notice thereof in accordance with
law. The notice shall include—
(1) a statement of the time, place, and nature of
public rule making proceedings;
(2) reference to the legal authority under which
the rule is proposed; and
(3) either the terms or substance of the proposed
rule or a description of the subjects and issues involved.
Except when notice or hearing is required by statute,
this subsection does not apply—
(A) to interpretative rules, general statements of
policy, or rules of agency organization, procedure, or
practice; or
(1a)
2a
(B) when the agency for good cause finds (and incorporates the finding and a brief statement of reasons therefor in the rules issued) that notice and public procedure thereon are impracticable, unnecessary, or contrary to the public interest.
(c) After notice required by this section, the agency
shall give interested persons an opportunity to participate in the rule making through submission of written
data, views, or arguments with or without opportunity
for oral presentation. After consideration of the relevant matter presented, the agency shall incorporate in
the rules adopted a concise general statement of their
basis and purpose. When rules are required by statute
to be made on the record after opportunity for an agency
hearing, sections 556 and 557 of this title apply instead
of this subsection.
(d) The required publication or service of a substantive rule shall be made not less than 30 days before its
effective date, except—
(1) a substantive rule which grants or recognizes
an exemption or relieves a restriction;
or
(2)
interpretative rules and statements of policy;
(3) as otherwise provided by the agency for good
cause found and published with the rule.
(e) Each agency shall give an interested person the
right to petition for the issuance, amendment, or repeal
of a rule.
3a
2.
5 U.S.C. 703 provides:
Form and venue of proceeding
The form of proceeding for judicial review is the special statutory review proceeding relevant to the subject
matter in a court specified by statute or, in the absence
or inadequacy thereof, any applicable form of legal action, including actions for declaratory judgments or
writs of prohibitory or mandatory injunction or habeas
corpus, in a court of competent jurisdiction. If no special statutory review proceeding is applicable, the action
for judicial review may be brought against the United
States, the agency by its official title, or the appropriate
officer. Except to the extent that prior, adequate, and
exclusive opportunity for judicial review is provided by
law, agency action is subject to judicial review in civil or
criminal proceedings for judicial enforcement.
3.
5 U.S.C. 706 provides:
Scope of review
To the extent necessary to decision and when presented, the reviewing court shall decide all relevant
questions of law, interpret constitutional and statutory
provisions, and determine the meaning or applicability
of the terms of an agency action. The reviewing court
shall—
(1) compel agency action unlawfully withheld or
unreasonably delayed; and
(2) hold unlawful and set aside agency action,
findings, and conclusions found to be—
4a
(A) arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law;
(B) contrary to constitutional right, power,
privilege, or immunity;
(C) in excess of statutory jurisdiction, authority, or limitations, or short of statutory right;
(D) without observance of procedure required by law;
(E) unsupported by substantial evidence in a
case subject to sections 556 and 557 of this title or
otherwise reviewed on the record of an agency
hearing provided by statute; or
(F) unwarranted by the facts to the extent
that the facts are subject to trial de novo by the
reviewing court.
In making the foregoing determinations, the court shall
review the whole record or those parts of it cited by a
party, and due account shall be taken of the rule of prejudicial error.
4.
8 U.S.C. 1226 provides:
Apprehension and detention of aliens
(a)
Arrest, detention, and release
On a warrant issued by the Attorney General, an alien may be arrested and detained pending a decision on
whether the alien is to be removed from the United
States. Except as provided in subsection (c) and pending such decision, the Attorney General—
5a
(1)
and
(2)
may continue to detain the arrested alien;
may release the alien on—
(A) bond of at least $1,500 with security approved by, and containing conditions prescribed
by, the Attorney General; or
(B)
conditional parole; but
(3) may not provide the alien with work authorization (including an “employment authorized” endorsement or other appropriate work permit), unless
the alien is lawfully admitted for permanent residence or otherwise would (without regard to removal
proceedings) be provided such authorization.
(b)
Revocation of bond or parole
The Attorney General at any time may revoke a bond
or parole authorized under subsection (a), rearrest the
alien under the original warrant, and detain the alien.
(c)
Detention of criminal aliens
(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,
(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
6a
alien has been sentence 1 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.
(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.
1
So in original.
Probably should be “sentenced”.
7a
(d)
Identification of criminal aliens
(1) The Attorney General shall devise and implement a system—
(A) to make available, daily (on a 24-hour basis),
to Federal, State, and local authorities the investigative resources of the Service to determine whether
individuals arrested by such authorities for aggravated felonies are aliens;
(B) to designate and train officers and employees of the Service to serve as a liaison to Federal,
State, and local law enforcement and correctional
agencies and courts with respect to the arrest, conviction, and release of any alien charged with an aggravated felony; and
(C) which uses computer resources to maintain
a current record of aliens who have been convicted of
an aggravated felony, and indicates those who have
been removed.
(2) The record under paragraph (1)(C) shall be
made available—
(A) to inspectors at ports of entry and to border
patrol agents at sector headquarters for purposes of
immediate identification of any alien who was previously ordered removed and is seeking to reenter the
United States, and
(B) to officials of the Department of State for
use in its automated visa lookout system.
(3) Upon the request of the governor or chief executive officer of any State, the Service shall provide as-
8a
sistance to State courts in the identification of aliens unlawfully present in the United States pending criminal
prosecution.
(e)
Judicial review
The Attorney General’s discretionary judgment regarding the application of this section shall not be subject to review. No court may set aside any action or
decision by the Attorney General under this section regarding the detention or release of any alien or the
grant, revocation, or denial of bond or parole.
5.
8 U.S.C. 1231 provides in pertinent part:
Detention and removal of aliens ordered removed
(a)
Detention, release, and removal of aliens ordered removed
(1) Removal period
(A)
In general
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”).
(B)
Beginning of period
The removal period begins on the latest of the
following:
(i) The date the order of removal becomes
administratively final.
9a
(ii) If the removal order is judicially reviewed and if a court orders a stay of the removal of the alien, the date of the court’s final
order.
(iii) If the alien is detained or confined (except under an immigration process), the date
the alien is released from detention or confinement.
(C)
Suspension of period
The removal period shall be extended beyond a
period of 90 days and the alien may remain in detention during such extended period if the alien
fails or refuses to make timely application in good
faith for travel or other documents necessary to
the alien’s departure or conspires or acts to prevent the alien’s removal subject to an order of removal.
(2) Detention
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.
10a
(3) Supervision after 90-day period
If the alien does not leave or is not removed within
the removal period, the alien, pending removal, shall
be subject to supervision under regulations prescribed by the Attorney General. The regulations
shall include provisions requiring the alien—
(A) to appear before an immigration officer
periodically for identification;
(B) to submit, if necessary, to a medical and
psychiatric examination at the expense of the
United States Government;
(C) to give information under oath about the
alien’s nationality, circumstances, habits, associations, and activities, and other information the Attorney General considers appropriate; and
(D) to obey reasonable written restrictions
on the alien’s conduct or activities that the Attorney General prescribes for the alien.
(4) Aliens imprisoned, arrested, or on parole, supervised release, or probation
(A)
In general
Except as provided in section 259(a) 1 of title 42
and paragraph (2), 2 the Attorney General may not
remove an alien who is sentenced to imprisonment
until the alien is released from imprisonment.
1
2
See References in Text note below.
So in original. Probably should be “subparagraph (B),”.
11a
Parole, supervised release, probation, or possibility of arrest or further imprisonment is not a reason to defer removal.
(B)
Exception for removal of nonviolent offenders prior to completion of sentence of imprisonment
The Attorney General is authorized to remove
an alien in accordance with applicable procedures
under this chapter before the alien has completed
a sentence of imprisonment—
(i) in the case of an alien in the custody of
the Attorney General, if the Attorney General
determines that (I) the alien is confined pursuant to a final conviction for a nonviolent offense
(other than an offense related to smuggling or
harboring of aliens or an offense described in
section 1101(a)(43)(B), (C), (E), (I), or (L) of
this title 3 and (II) the removal of the alien is appropriate and in the best interest of the United
States; or
(ii) in the case of an alien in the custody of
a State (or a political subdivision of a State),
if the chief State official exercising authority
with respect to the incarceration of the alien
determines that (I) the alien is confined pursuant to a final conviction for a nonviolent offense
(other than an offense described in section
1101(a)(43)(C) or (E) of this title), (II) the removal is appropriate and in the best interest of
the State, and (III) submits a written request
So in original.
thesis.
3
Probably should be followed by a closing paren-
12a
to the Attorney General that such alien be so
removed.
(C)
Notice
Any alien removed pursuant to this paragraph
shall be notified of the penalties under the laws of
the United States relating to the reentry of deported aliens, particularly the expanded penalties
for aliens removed under subparagraph (B).
(D)
No private right
No cause or claim may be asserted under this
paragraph against any official of the United States
or of any State to compel the release, removal, or
consideration for release or removal of any alien.
(5) Reinstatement of removal orders against aliens
illegally reentering
If the Attorney General finds that an alien has
reentered the United States illegally after having
been removed or having departed voluntarily, under
an order of removal, the prior order of removal is reinstated from its original date and is not subject to
being reopened or reviewed, the alien is not eligible
and may not apply for any relief under this chapter,
and the alien shall be removed under the prior order
at any time after the reentry.
(6) Inadmissible or criminal aliens
An alien ordered removed who is inadmissible under section 1182 of this title, removable under section
1227(a)(1)(C), 1227(a)(2), or 1227(a)(4) of this title or
who has been determined by the Attorney General to
be a risk to the community or unlikely to comply with
13a
the order of removal, may be detained beyond the removal period and, if released, shall be subject to the
terms of supervision in paragraph (3).
(7) Employment authorization
No alien ordered removed shall be eligible to receive authorization to be employed in the United
States unless the Attorney General makes a specific
finding that—
(A) the alien cannot be removed due to the
refusal of all countries designated by the alien or
under this section to receive the alien, or
(B) the removal of the alien is otherwise impracticable or contrary to the public interest.
*
(h)
*
*
*
*
Statutory construction
Nothing in this section shall be construed to create
any substantive or procedural right or benefit that is legally enforceable by any party against the United States
or its agencies or officers or any other person.
*
6.
*
*
*
*
8 U.S.C. 1252(f ) provides:
Judicial review of orders of removal
(f )
Limit on injunctive relief
(1) In general
14a
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.
(2) Particular cases
Notwithstanding any other provision of law, no
court shall enjoin the removal of any alien pursuant
to a final order under this section unless the alien
shows by clear and convincing evidence that the entry or execution of such order is prohibited as a matter of law.
This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.