Amicus Curiae Brief — United States, et al., Petitioners v. Texas, et al.

No. 22-58

IN THE

Supreme Court of the United States

d

UNITED STATES OF AMERICA , et al.,

Petitioners,

—v.—

STATE OF TEXAS and STATE OF LOUISIANA ,

Respondents.

ON WRIT OF CERTIORARI BEFORE JUDGMENT TO THE UNITED STATES

COURT OF APPEALS FOR THE FIFTH CIRCUIT

BRIEF OF AMICI CURIAE THE AMERICAN CIVIL LIBERTIES

UNION, ACLU OF TEXAS, AND AMERICAN IMMIGRATION

LAWYERS ASSOCIATION IN SUPPORT OF PETITIONERS

Michael K.T. Tan

Omar C. Jadwat

Anand Balakrishnan

Daniel A. Galindo

Noor Zafar

AMERICAN CIVIL LIBERTIES

UNION FOUNDATION

125 Broad Street

New York, NY 10004

Cody Wofsy

Counsel of Record

Cecillia D. Wang

AMERICAN CIVIL LIBERTIES

UNION FOUNDATION

39 Drumm Street

San Francisco, CA 94111

(415) 343-0770

cwofsy@aclu.org

David D. Cole

AMERICAN CIVIL LIBERTIES

UNION FOUNDATION

915 15th Street, NW

Washington, D.C. 20005

Counsel for Amici Curiae

i

TABLE OF CONTENTS

PAGE

TABLE OF AUTHORITIES ....................................... iii

INTEREST OF AMICI CURIAE ................................. 1

STATUTORY AND PROCEDURAL

BACKGROUND ..................................................... 2

SUMMARY OF ARGUMENT ..................................... 4

ARGUMENT ................................................................ 8

I.

THE GUIDANCE MERELY GUIDES

DISCRETION WHERE IT EXISTS AND

DOES NOT ADDRESS DETENTION

ISSUES, AND THEREFORE DOES

NOT OVERRIDE ANY STATUTORY

MANDATES .................................................... 8

II.

NOTHING IN THE GUIDANCE

VIOLATES § 1226(c) ...................................... 9

A. Section 1226(c) Does Not Address,

Much Less Mandate, Initiation

Or Continuation Of Removal

Proceedings .............................................. 11

B. Nothing In The Guidance Violates Any

Mandate In § 1226(c) ............................... 16

III. NOTHING IN THE GUIDANCE

VIOLATES § 1231(a)(2) ................................ 22

ii

PAGE

IV. EVEN IF THERE WERE STATUTORY

VIOLATIONS, THEY WOULD

REPRESENT ONLY A SMALL

PROPORTION OF ALL PERSONS

ADDRESSED BY THE GUIDANCE,

AND WOULD NOT WARRANT

VACATING THE GUIDANCE

AS A WHOLE................................................ 26

CONCLUSION .......................................................... 30

iii

TABLE OF AUTHORITIES

PAGE(S)

Cases

Arizona v. Biden,

40 F.4th 375 (6th Cir. 2022) ............... 10, 18, 19, 21

Arizona v. United States,

567 U.S. 387 (2012) .................................... 5, 12, 13

Asika v. Ashcroft,

362 F.3d 264 (4th Cir. 2004) ................................ 24

Ayotte v. Planned Parenthood of N. New England,

546 U.S. 320 (2006) .............................................. 29

Biden v. Texas,

142 S. Ct. 2528 (2022) .......................................... 15

City of Seabrook v. Costle,

659 F.2d 1371 (5th Cir. Unit A 1981) ............ 14, 20

Confiscation Cases,

7 Wall. 454 (1869) ................................................. 13

Demore v. Kim,

538 U.S. 510 (2003) .............................................. 17

Matter of E-R-M- & L-R-M-,

25 I. & N. Dec. 520 (BIA 2011) ............................ 12

Heckler v. Chaney,

470 U.S. 821 (1985) .................................... 6, 13, 14

Jennings v. Rodriguez,

138 S. Ct. 830 (2018) ............................................ 17

Johnson v. Arteaga-Martinez,

142 S. Ct. 1827 (2022) .......................................... 27

iv

PAGE(S)

Johnson v. Guzman Chavez,

141 S. Ct. 2271 (2021) .......................................... 23

Kucana v. Holder,

558 U.S. 233 (2010) .............................................. 15

Monsanto Co. v. Geertson Seed Farms,

561 U.S. 139 (2010) .............................................. 29

Nielsen v. Preap,

139 S. Ct. 954 (2019) ...................................... 17, 22

Nken v. Holder,

556 U.S. 418 (2009) .............................................. 24

Reno v. Am.-Arab Anti-Discrimination Comm.,

525 U.S. 471 (1999) ....................................... passim

Rotkiske v. Klemm,

140 S. Ct. 355 (2019) ...................................... 15, 25

Texas v. United States,

14 F.4th 332 (5th Cir. 2021) ..................... 11, 21, 22

Texas v. United States,

24 F.4th 407 (5th Cir. 2021) (en banc)................. 11

Town of Castle Rock, Colo. v. Gonzales,

545 U.S. 748 (2005) ....................................... passim

United States v. Armstrong,

517 U.S. 456 (1996) .............................................. 13

Zadvydas v. Davis,

533 U.S. 678 (2001) .................................... 6, 16, 21

v

PAGE(S)

Statutes

8 U.S.C. § 1226.................................................... passim

8 U.S.C. § 1226(a) .......................................... 17, 22, 25

8 U.S.C. § 1226(b) ...................................................... 25

8 U.S.C. § 1226(c) ................................................ passim

8 U.S.C. § 1226(c)(1) .............................................. 3, 18

8 U.S.C. § 1226(c)(2) .............................................. 3, 18

8 U.S.C. § 1226a(a) .................................................... 18

8 U.S.C. § 1226a(a)(1) ................................................ 18

8 U.S.C. § 1226a(a)(2) ................................................ 18

8 U.S.C. § 1226a(a)(3) ................................................ 18

8 U.S.C. § 1226a(a)(5) ................................................ 14

8 U.S.C. § 1226a(a)(7) ................................................ 18

8 U.S.C. § 1229(d)(1) .................................................. 15

8 U.S.C. § 1231................................................. 7, 24, 25

8 U.S.C. § 1231(a)(1) .................................................... 4

8 U.S.C. § 1231(a)(1)(A) ......................................... 4, 23

8 U.S.C. § 1231(a)(1)(B)(i) ......................................... 23

8 U.S.C. § 1231(a)(2) ........................................... passim

8 U.S.C. § 1231(a)(4)(A) ............................................. 25

8 U.S.C. § 1252(g) ...................................................... 15

8 U.S.C. § 1252c(a) ..................................................... 25

vi

PAGE(S)

8 U.S.C. § 1357(g)(10)(B) ........................................... 25

Illegal Immigration Reform and Immigrant

Responsibility Act of 1996 (“IIRIRA”),

110 Stat. 3009–546 ............................................... 15

Regulations

8 C.F.R. § 1236.1(b)(1) ............................................... 17

Other Authorities

DHS Office of Immigr. Statistics, Estimates of the

Lawful Permanent Resident Population in the

United States and the Subpopulation Eligible

to Naturalize: 2015-2019 (Sept. 2019),

https://bit.ly/3mvRBoX ......................................... 27

DHS Office of Immigr. Statistics, Population

Estimates of Nonimmigrants Residing in the

United States: Fiscal Years 2017-2019

(May 2021), https://bit.ly/3JecAXn ...................... 27

Flurry, Alan, Study estimates U.S. population

with felony convictions, UGA Today

(Oct. 1, 2017), https://news.uga.edu/totalus-population-with-felony-convictions/ ................ 29

Hausman, David K., Fact Sheet: Noncitizens

in the Removal Period,

https://tinyurl.com/58hfxsks ................................ 28

vii

PAGE(S)

Light, Michael T., He, Jingying, & Robey,

Jason P., Comparing crime rates between

undocumented immigrants, legal immigrants,

and native-born US citizens in Texas 1,

PNAS, Vol. 117, No. 51 (Dec. 22, 2020),

https://www.pnas.org/doi/pdf/10.1073/

pnas.2014704117 .................................................. 29

Migration Policy Inst., Profile of the Unauthorized

Population, https://bit.ly/3jTAk74 ....................... 27

1

INTEREST OF AMICI CURIAE

The American Civil Liberties Union (“ACLU”) is a

nationwide, nonprofit, nonpartisan organization with

nearly two million members and supporters dedicated

to the principles of liberty and equality embodied in

our nation’s Constitution and civil rights laws. The

ACLU, through its Immigrants’ Rights Project and

state affiliates, engages in a nationwide program of

litigation, advocacy, and public education to enforce

and protect the constitutional and civil rights of

noncitizens. The ACLU of Texas is a state affiliate of

the ACLU.

The American Immigration Lawyers Association

(“AILA”) is a national non-profit association with

more than 15,000 members throughout the United

States and abroad, including lawyers and law school

professors who practice and teach in the field of

immigration and nationality law. AILA seeks to

advance the administration of law pertaining to

immigration, nationality, and naturalization, and to

facilitate the administration of justice and elevate the

standard of integrity, honor, and courtesy of those

appearing in a representative capacity in

immigration and naturalization matters. AILA’s

members practice regularly before the Department of

Homeland Security (“DHS”), immigration courts, and

the Board of Immigration Appeals, as well as before

federal courts.

Amici have extensive experience representing

immigrants and litigating issues related to

immigration enforcement, and in particular the

meaning and scope of 8 U.S.C. §§ 1226(c) and

1231(a)(2). Our cases before this Court include

Garland v. Aleman Gonzalez, 142 S. Ct. 2057 (2022);

Johnson v. Guzman Chavez, 141 S. Ct. 2271 (2021);

2

Nielsen v. Preap, 139 S. Ct. 954 (2019); Jennings v.

Rodriguez, 138 S. Ct. 830 (2018); Demore v. Kim, 538

U.S. 510 (2003); and Zadvydas v. Davis, 533 U.S. 678

(2001). Amici offer this brief to address those statutes

as relevant to DHS’s Guidelines for the Enforcement

of Civil Immigration Law (the “Guidance”).1

STATUTORY AND PROCEDURAL

BACKGROUND

In September 2021, the Secretary of Homeland

Security adopted the Guidance to provide guidelines

on the “apprehension and removal” of noncitizens.

J.A. 110-120. The Guidance identifies three categories

of noncitizens as priorities for apprehension and

removal: (1) those who pose “a danger to national

security”; (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,” whom

the Guidance defines as noncitizens who are

apprehended at the border or who arrived in the

United States after November 1, 2020. J.A. 113-116.

The Guidance further provides a framework for

determining whether a noncitizen poses a threat to

public safety. Rather than relying on “bright lines or

categories,” the Guidance calls for an assessment of

“the totality of the facts and circumstances,” J.A. 113,

which include both “aggravating factors” that favor

enforcement, such as “the gravity of the offense of

1 Pursuant to Supreme Court Rule 37.6, counsel for amici state

that no counsel for a party authored this brief in whole or in

part, and no person other than amici or their counsel made any

monetary contribution intended to fund the preparation or

submission of this brief. Pursuant to Supreme Court Rule

37.3(a), counsel for amici state that all parties have consented to

the filing of this brief.

3

conviction” and the “use or threatened use of a firearm

or dangerous weapon,” and “mitigating factors,” such

as “advanced or tender age” and “military or other

public service.” J.A. 114. The Secretary explained that

the Guidance thus allows DHS to “use the resources

we have in a way that accomplishes our enforcement

mission most effectively and justly.” J.A. 113.

By its terms, the Guidance “does not compel an

action to be taken or not taken” in any particular case

and “leaves the exercise of prosecutorial discretion to

the judgment of [DHS] personnel.” J.A. 118. And it

applies only to “apprehension and removal,” J.A. 113;

it “does not provide guidance pertaining to detention

and release determinations” for noncitizens already

in DHS custody. J.A. 415.

Nor does the Guidance purport to create, expand,

guide, or cabin discretion where none currently

exists. See J.A. 157 (recognizing that “discretion only

may be exercised within the bounds of the law”).

DHS acknowledged that two statutory provisions,

8 U.S.C. §§ 1226(c) and 1231(a)(2), require that

certain noncitizens be detained during the pendency

of removal proceedings or while awaiting removal.

J.A. 159-160.

Under § 1226(c), which is titled “Detention of

criminal aliens,” 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, id. § 1226(c)(2). Once a noncitizen

subject to § 1226(c) is in custody, “that noncitizen

generally must remain in custody during the pendency

of removal proceedings” unless release is authorized

by § 1226(c)(2) or a court order. J.A. 160.

4

Section 1231(a)(2) governs the detention of

noncitizens who have already been issued a final

order of removal. Subsection 1231(a)(1) describes a

90-day period after a final removal order issues.

8 U.S.C. § 1231(a)(1)(A). Subsection 1231(a)(2), titled

“Detention,” provides that DHS “shall detain” the

noncitizen during that 90-day removal period, and

that “[u]nder no circumstance” shall DHS release a

noncitizen who is removable on certain criminal or

terrorist grounds. Id. § 1231(a)(2).

DHS explained that the Guidance is “consistent

with” and “do[es] not purport to override” those

mandatory detention provisions. Rather, it seeks to

guide the exercise of “deep-rooted . . . enforcement

discretion when it comes to decisions that occur

before detention, such as who should be subject to

arrest, detainers, and removal proceedings.” J.A. 158

(cleaned up) (emphasis added).

The lower courts disagreed with the agency. In the

district court’s view, the Guidance was contrary to law

because it “[conferred] discretion [on officers] to

independently decide who will be detained and when—

if ever.” J.A. 370; see also J.A. 369-374. Similarly, the

court of appeals concluded that some applications of

the enforcement discretion contemplated by the

Guidance likely violate the “mandatory detention”

requirements in §§ 1226(c) and 1231(a)(2). J.A. 476; see

also J.A. 472-479.

SUMMARY OF ARGUMENT

Whether the DHS Enforcement Guidance violates

8 U.S.C. §§ 1226(c) and 1231(a)(2) is “the core of the

dispute” in this case. J.A. 289-290. The courts below

relied on the alleged violation of what they saw as

detention mandates in those statutes throughout

5

their analysis. Yet those interpretations were

fundamentally flawed. Amici write to address those

interpretations.

As an initial matter, the Guidance in no way

prohibits DHS officers from arresting or detaining

people covered by §§ 1226(c) and 1231(a)(2). See J.A.

118. It provides only nonbinding guidance, and leaves

ultimate decisional authority in DHS officers to be

exercised on a case-by-case basis. Nor does it purport

to create discretion where it does not exist. Thus, if

the statutes at issue impose mandates, the Guidance

does not speak to, much less override, any mandated

actions. Moreover, the Guidance excludes decisions

regarding detention and release from its scope, and

thus cannot violate any detention requirements that

those statutes impose. See J.A. 160, 415. Instead, the

Guidance addresses how DHS should implement its

concededly discretionary authority to make the

antecedent decision whether to seek an individual’s

removal.

Even if the Guidance actually prohibited DHS

officers from arresting persons subject to §§ 1226(c) or

1231(a)(2), there would be no basis for the district

court’s vacatur order, because neither statute deprives

DHS of its background prosecutorial discretion to

decide whether to initiate or pursue removal

proceedings or effectuate an individual’s removal.

Section 1226(c) creates no enforceable mandate to

arrest all noncitizens with qualifying criminal history,

but applies only where DHS pursues removal

proceedings. The provision leaves intact DHS’s wellestablished discretion to “decline to institute [removal]

proceedings [or] terminate proceedings,” Reno v. Am.Arab Anti-Discrimination Comm., 525 U.S. 471, 484

(1999) (“AADC”); accord Arizona v. United States, 567

6

U.S. 387, 396 (2012); Heckler v. Chaney, 470 U.S. 821,

831 (1985). Where the agency has decided not to

pursue removal, § 1226(c) has nothing to say, because

whatever detention it requires is necessarily

incidental to seeking removal. See Zadvydas v. Davis,

533 U.S. 678, 690 (2001). Once DHS decides not to seek

removal, there is no basis, much less requirement, for

detention. And it is that discretionary decision—

whether or not to seek removal—that the Guidance

addresses, and the statute leaves to DHS discretion.

Moreover, even if § 1226(c) were applicable in cases

where DHS has chosen not to seek removal, it does not

impose an arrest mandate enforceable by third parties.

Because prosecutorial discretion is such a bedrock

principle of law enforcement, courts are properly

reluctant to interpret statutes to afford third parties

the right to compel an agency to initiate an

enforcement action. Thus, even “seemingly mandatory

legislative commands” do not create arrest mandates

enforceable by third parties (such as the States here)

absent “some stronger indication” than the word

“shall.” Town of Castle Rock, Colo. v. Gonzales, 545

U.S. 748, 761 (2005).

Prosecutorial discretion is a necessary aspect of

virtually all forms of law enforcement; it allows for

individualized justice, and for efficient allocation of

limited resources. It is therefore a longstanding

background principle of all forms of law enforcement,

including immigration law. See AADC, 525 U.S. at

484. As a result, any statute seeking to override

prosecutorial discretion by empowering third parties

to compel an arrest or prosecution requires an

extraordinarily clear statement. Castle Rock, 545

U.S. at 761. Section 1226(c) contains nothing that

meets that requirement.

7

For related reasons, § 1231(a)(2) creates no right of

third parties to compel DHS to arrest all individuals

with orders of removal who are within the statutory

“removal period.” Much like § 1226(c), under

§ 1231(a)(2), DHS retains discretion to “decline to

execute a final order of deportation,” AADC, 525 U.S.

at 484. Where DHS declines to execute removal,

§ 1231(a)(2) does not require the noncitizen’s

detention, as the only legitimate purpose of detention

is to effectuate removal. Because § 1231 preserves

DHS’s discretion not to seek removal, therefore, the

Guidance, which merely guides that discretion and

requires no particular action, does not conflict with

the statute. Moreover, § 1231(a)(2), which provides

merely that DHS “shall detain” during the removal

period, cannot even begin to meet Castle Rock’s

requirement of an exceptionally clear statement

overriding prosecutorial discretion to afford a third

party the right to compel arrest.

Finally, even if the States’ statutory interpretations

had merit, the relief ordered by the district court far

exceeds the scope of any supposed violation. The

dramatic mismatch between the limited number of

individuals covered by those provisions and the much

larger group of potentially removable noncitizens

covered by the Guidance underscores the district

court’s error in vacating the Guidance in its entirety.

The district court effectively invalidated the

Guidance on its face on the basis of a handful of

situations in which it found a conflict with the

statutes. Thus, at most the court should have

invalidated the Guidance’s enforcement only in those

limited situations.

8

ARGUMENT

I. THE

GUIDANCE

MERELY

GUIDES

DISCRETION WHERE IT EXISTS AND DOES

NOT ADDRESS DETENTION ISSUES, AND

THEREFORE DOES NOT OVERRIDE ANY

STATUTORY MANDATES.

As a threshold matter, the Guidance cannot

contravene any mandates imposed by 8 U.S.C.

§§ 1226(c) or 1231(a)(2) for two reasons.

First, the Guidance merely provides nonbinding

guidance to decisions left to DHS’s discretion, and

therefore by definition does not address, much less

contravene, any statutorily mandated action. DHS

has prosecutorial discretion to pursue, or not pursue,

removal against an individual noncitizen—and the

States have not contended otherwise. See Opp’n to

Mot. for Stay 36 n.5. The Guidance provides

guidelines to DHS officers on how to exercise that

discretion—that is, “who should be subject to arrest,

detainers, removal proceedings, and the execution of

removal orders,” J.A. 111, and “whether it makes

sense to pursue removal at all,” J.A. 112 (quoting

Arizona, 567 U.S. at 396). The Guidance does not

purport to transform any mandatory obligation into a

discretionary one, but merely provides guidelines for

exercising discretion where discretion exists.

The Guidance explicitly “does not compel an action

to be taken or not taken,” even as to the prosecutorial

decisions that it covers, much less as to any nondiscretionary obligations of DHS officers. J.A. 118. In

addition, in issuing the Guidance, DHS explicitly

affirmed that “discretion only may be exercised within

the bounds of the law.” J.A. 157. Thus, where a statute

9

eliminates or limits discretion, the Guidance does not

apply.

Second, the Guidance does not address “detention

and release determinations”—the determinations

that §§ 1226(c) and 1231(a)(2) govern. J.A. 415. It

addresses only the distinct, discretionary decision

about whether to seek removal, by apprehending

noncitizens, instituting removal proceedings, and

executing removal orders. It does not speak to

detention and release determinations with respect to

those who DHS has chosen not to remove. It applies

to the decision whether to pursue an individual’s

removal, and not the subsequent decision whether to

keep an individual in custody in aid of removal.

As a result, even assuming §§ 1226(c) and

1231(a)(2) impose any mandates enforceable by third

parties as to “detention and release determinations,”

the Guidance cannot contravene those mandates,

because

it

addresses

only

the

antecedent

discretionary decisions as to whether to pursue

removal at all, and does not address the subsequent

decision regarding “detention and release.”

II. NOTHING IN THE GUIDANCE VIOLATES

§ 1226(c).

Section 1226(c) provides that DHS “shall take into

custody” a noncitizen who is “deportable” or

“inadmissible” based on specified criminal offenses,

“when the alien is released” from criminal custody,

and prohibits that noncitizen’s release pending

removal proceedings except in limited circumstances.

8 U.S.C. § 1226(c). In the States’ view, this statute

requires the arrest of all noncitizens with criminal

history triggering that provision, and the Guidance is

10

contrary to law because it permits officers to decline

to make such arrests. See Opp’n to Mot. for Stay 3536 & n.5. But as noted above, Point I, supra, that

view fundamentally misapprehends the Guidance,

which does not prohibit any enforcement action,

much less any action that might be required by

§ 1226(c).

Even if the Guidance prohibited certain enforcement

actions, moreover, the States’ argument would still

fail. That is because § 1226(c) does not disturb, either

explicitly or implicitly, the Executive’s well-established

discretion to decline to initiate removal proceedings, or

to terminate such proceedings. See AADC, 525 U.S. at

484. All the provisions of § 1226 are predicated on

DHS’s pursuit of removal proceedings, and therefore

none of those provisions—including § 1226(c)—applies

where DHS elects not to pursue removal. The statute

governs detention pending removal proceedings, and

does not require detention where DHS has decided not

to pursue removal. When a DHS officer has decided to

exercise their discretion not to pursue the removal of an

individual noncitizen, § 1226(c) does not come into play.

Additionally, because prosecutorial discretion is a

bedrock background principle of immigration law

enforcement, as of law enforcement more generally,

“some stronger indication” than the word “shall” is

required to create a mandate to arrest that is

enforceable by third parties. Castle Rock, 545 U.S. at

761. Respondents point to various policy considerations

that might have led Congress to command arrests—

but similar policy considerations were present in

Castle Rock itself. There simply is “no ‘stronger

indication’ from Congress in [§ 1226(c)] that ‘shall’

creates a judicially enforceable mandate.” See Arizona

v. Biden, 40 F.4th 375, 392 (6th Cir. 2022).

11

A. Section 1226(c) Does Not Address, Much

Less Mandate, Initiation Or Continuation

Of Removal Proceedings.

Nothing in § 1226(c), titled “Detention of Criminal

Aliens,” so much as mentions the decision to initiate

or continue removal proceedings, much less mandates

such action. And because those decisions remain in

the discretion of DHS, the Guidance’s terms

addressed to those decisions do not contradict §

1226(c).

The conclusion that § 1226(c) does not mandate the

pursuit of removal has been uncontested in this

litigation. Neither of the lower courts suggested that

§ 1226(c) mandates the initiation or continuation of

removal proceedings. And the previous Fifth Circuit

opinion in this litigation emphasized that § 1226(c)

does not eliminate “the government’s traditional

prerogative to decide who to charge in enforcement

proceedings (and thus who ends up being detained).”

Texas v. United States, 14 F.4th 332, 338-39 (5th Cir.

2021).2 Likewise, in the stay proceedings before this

Court, the States did not contest that immigration

authorities “have discretion never to begin”

proceedings against an individual described in

§ 1226(c). Opp’n to Mot. for Stay 36 n.5. The States’

concession is well advised.

Congress enacted § 1226(c) against a wellestablished backdrop of prosecutorial discretion in

immigration enforcement. As this Court explained in

2 The

en banc Fifth Circuit vacated this decision without

opinion, after the Interim Guidance had been replaced with the

Guidance at issue here (thus mooting claims as to the Interim

Guidance). Texas v. United States, 24 F.4th 407 (5th Cir. 2021)

(en banc).

12

AADC, it has long been the case that throughout “the

initiation or prosecution of various stages in the

deportation process . . . the Executive has discretion

to abandon the endeavor,” 525 U.S. at 483, and that

“[t]o ameliorate a harsh and unjust outcome, the

[agency] may decline to institute proceedings [or]

terminate proceedings” seeking a removal order. Id.

at 484 (quoting 6 C. Gordon, S. Mailman, & S. Yale–

Loehr, Immigration Law and Procedure § 72.03 [2][h]

(1998)). “[A]t the time [§ 1226(c)] was enacted,” the

agency “had been engaging in [this] regular practice”

of “exercising that discretion for humanitarian

reasons or simply for its own convenience.” 525 U.S.

at 483.

That discretion is a “principal feature of the removal

system,” which calls on federal officials to “decide

whether it makes sense to pursue removal at all.”

Arizona, 567 U.S. at 396 (emphasis added); see also

Matter of E-R-M- & L-R-M-, 25 I. & N. Dec. 520, 522

(BIA 2011) (rejecting statutory interpretation that

would impose “a purported restraint on the DHS’s

exercise of its prosecutorial discretion” in immigration

enforcement). As this Court has explained,

[d]iscretion in the enforcement of immigration

law embraces immediate human concerns.

Unauthorized workers trying to support their

families, for example, likely pose less danger

than alien smugglers or aliens who commit a

serious crime. The equities of an individual

case may turn on many factors, including

whether the alien has children born in the

United States, long ties to the community, or

a record of distinguished military service.

Some discretionary decisions involve policy

choices that bear on this Nation’s

international relations. Returning an alien to

13

his own country may be deemed inappropriate

even where he has committed a removable

offense or fails to meet the criteria for

admission. The foreign state may be mired in

civil war, complicit in political persecution, or

enduring conditions that create a real risk

that the alien or his family will be harmed

upon return. The dynamic nature of relations

with other countries requires the Executive

Branch to ensure that enforcement policies

are consistent with this Nation’s foreign

policy with respect to these and other

realities.

Arizona, 567 U.S. at 396-97.

DHS’s discretion regarding the institution or

termination of removal is but one species of a more

general, equally well-recognized principle of

prosecutorial discretion that applies whenever the

government (whether federal, state, or local) is

charged with enforcing the law. “This Court has

recognized on several occasions over many years that

an agency’s decision not to prosecute or enforce,

whether through civil or criminal process, is a

decision generally committed to an agency’s absolute

discretion.” Heckler, 470 U.S. at 831; see also United

States v. Armstrong, 517 U.S. 456, 464 (1996) (noting

that the decision to enforce the criminal laws is the

“‘special province’ of the Executive” (quoting Heckler,

470 U.S. at 832)); Confiscation Cases, 7 Wall. 454

(1869) (noting, in property confiscation civil suits

brought by the United States, that “[u]nder the rules

of the common law it must be conceded that the

prosecuting party may relinquish his suit at any

stage . . . .”).

14

The principle of enforcement discretion

ubiquitous and longstanding for good reason:

is

An agency decision not to enforce often

involves a complicated balancing of a number

of factors which are peculiarly within its

expertise. Thus, the agency must not only

assess whether a violation has occurred, but

whether agency resources are best spent on

this violation or another, whether the agency

is likely to succeed if it acts, whether the

particular enforcement action requested best

fits the agency's overall policies, and, indeed,

whether the agency has enough resources to

undertake the action at all.

Heckler, 470 U.S. at 831. Accord City of Seabrook v.

Costle, 659 F.2d 1371, 1375 (5th Cir. Unit A 1981)

(explaining that the “doctrine of prosecutorial

discretion” is grounded in part on the recognition that

“enforcement agencies are duty-bound to allocate

those resources in the interest of the general public

as they perceive it, not in the causes deemed most

important by” third parties).

Nothing in § 1226(c) limits immigration authorities’

longstanding discretion to decline to initiate or pursue

removal proceedings in particular cases. By its terms,

§ 1226(c) addresses when DHS will “take” a noncitizen

“into custody,” and when it “may release” that person.

It does not contain any language addressing whether

the government will “commence,” “initiate,” “begin,” or

“maintain” removal proceedings. Cf. 8 U.S.C.

§ 1226a(a)(5) (section entitled “Commencement of

proceedings,” providing that the agency “shall place

[certain noncitizens] in removal [or criminal]

proceedings” within a specified timeframe). Given the

strength of the bedrock tradition of prosecutorial

15

discretion, any suggestion that the statute silently

imposes such a mandate is untenable. It is not the

Court’s role to “rewrite” the statute that Congress

enacted. Biden v. Texas, 142 S. Ct. 2528, 2541 (2022)

(“We do not lightly assume that Congress has omitted

from its adopted text requirements that it nonetheless

intends to apply.”) (quoting Jama v. Immigr. &

Customs Enf’t, 543 U.S. 335, 341 (2005)).

“Atextual judicial supplementation is particularly

inappropriate when, as here, Congress has shown that

it knows how to adopt the omitted language or

provision.” Rotkiske v. Klemm, 140 S. Ct. 355, 361

(2019). Congress expressly addressed the initiation of

removal proceedings in other provisions that were also

enacted as part of the Illegal Immigration Reform and

Immigrant Responsibility Act of 1996 (“IIRIRA”), 110

Stat. 3009–546. For example, 8 U.S.C. § 1252(g), the

provision addressed in AADC, bars judicial review of

DHS’s decisions “to commence proceedings,” among

other things—which this Court interpreted as

expressly acknowledging the agency’s discretion on

that score. See AADC, 525 U.S. at 483-484. Similarly,

in 8 U.S.C. § 1229(d)(1), Congress provided that “the

Attorney General shall begin any removal proceeding

as expeditiously as possible.” If Congress had wanted

§ 1226(c) to direct DHS to “commence” proceedings, it

knew how to say so. Yet § 1226(c) is conspicuously

silent on the initiation or continuation of proceedings.

“[W]here Congress includes particular language in one

section of a statute but omits it in another section of

the same Act, it is generally presumed that Congress

acts intentionally and purposely in the disparate

inclusion or exclusion.” Kucana v. Holder, 558 U.S.

233, 249 (2010) (alteration in original) (quoting Jama,

543 U.S. at 341).

16

Thus, § 1226(c) cannot be read to displace the

Executive’s longstanding discretion to decline to

initiate proceedings or to terminate proceedings as it

sees fit. It leaves such decisions to DHS’s discretion,

and the Guidance document speaks only to those

discretionary decisions.

B. Nothing In The Guidance Violates Any

Mandate In § 1226(c).

The States’ principal contention is that § 1226(c)

mandates the arrest of individuals with qualifying

criminal history, even when DHS has exercised its

conceded discretion not to seek their removal. And,

the States continue, they can enlist federal courts to

enforce that mandate against the federal

government. See Opp’n to Mot. for Stay 35-36 & n.5.

That interpretation of § 1226(c) fails for two

independent reasons.

First, § 1226(c) does not and could not impose a freefloating arrest requirement untethered to immigration

proceedings. The only legitimate purpose of

immigration detention is to aid in removal. See

Zadvydas, 533 U.S. at 690. If at any point DHS

decides not to pursue removal, detention would serve

no lawful purpose. Indeed, if DHS does not intend to

seek an individual’s removal, it would be

unconstitutional to arrest them under the immigration

laws because detention in that setting would serve no

valid

immigration

purpose.

Such

arbitrary,

purposeless detention is the paradigmatic deprivation

of liberty without due process. See id.

Thus, § 1226(c) does not apply when DHS has

exercised its discretion not to pursue removal.

Whatever mandates the statute might impose are

themselves conditional: When DHS chooses not to

17

pursue proceedings, either before or after an

individual is taken into custody, § 1226(c) does not

mandate anything at all. And, as explained above,

§ 1226(c) does not require DHS to initiate or continue

removal proceedings—only to detain certain people

while it seeks their removal. As a result, DHS

maintains the discretion to decline to pursue removal

against any noncitizen, even one with qualifying

§ 1226(c) convictions. And when it exercises that

discretion by considering the factors set forth in the

Guidance and decides not to proceed against a

particular individual, § 1226(c) does not apply.

The statutory structure confirms this common-sense

reading. Section 1226 as a whole governs arrest and

detention pending removal proceedings, and therefore

does not apply where DHS decides not to pursue

removal. Section 1226(c) is an exception to the overall

arrest and detention authority under § 1226(a), which

in turn is entirely predicated on the pursuit of removal

proceedings. As this Court has explained, § 1226(a)

authorizes

custody

only

“pending

removal

proceedings.” Jennings v. Rodriguez, 138 S. Ct. 830,

846 (2018); accord 8 C.F.R. § 1236.1(b)(1) (warrants

authorizing arrest under § 1226(a) may be issued “[a]t

the time of issuance of the notice to appear, or at any

time thereafter and up to the time removal

proceedings are completed”). And when a person is

arrested and detained under § 1226(c)—an “exception”

to the general authority to arrest and hold or release

under subsection (a)—that authority must still

“spring[] from subsection (a).” Nielsen v. Preap, 139 S.

Ct. 954, 960, 966 (2019). Thus, § 1226(c), like § 1226

more generally, applies only “during removal

proceedings,” Demore v. Kim, 538 U.S. 510, 517-518

(2003), and any directive it contains could only apply

18

in furtherance of such proceedings, see Arizona, 40

F.4th at 391.

Notably, this two-step statutory structure—

permitting an initial discretionary determination as

to whether to seek removal, and then directing arrest

and detention where the agency has decided to seek

removal—is replicated in a neighboring provision, 8

U.S.C. § 1226a(a), titled “Detention of terrorist

aliens.” As in § 1226(c)(1), the terrorism statute

provides that the government “shall take into custody

any” noncitizen “certified” as being removable on

terrorism or related grounds or otherwise dangerous

to national security. Id. §§ 1226a(a)(1), (3). And, like

§ 1226(c)(2), it limits release from custody. Id.

§ 1226a(a)(2). However, these directives—enforceable

mandates, on the States’ theory in this case—are

explicitly predicated on DHS’s initial discretionary

choice about whether to certify a noncitizen under the

statute. Whether a noncitizen will be “certified” is

entirely up to the Executive: “The Attorney General

may certify an alien under this paragraph . . . .” Id.

§ 1226a(a)(3). And likewise, the choice whether to

revoke certification is left to “the Attorney General’s

discretion.” Id. § 1226a(a)(7). Just as in § 1226(c), the

directives about arrest and detention—whether or

not they are enforceable—are subject to a preliminary

exercise of discretion that the statute does not

constrain.

Second, even if § 1226(c) applied where DHS had

already elected not to pursue removal, it would not

create an arrest mandate enforceable by States or

other third parties against the federal government. In

light of “[t]he deep-rooted nature of law-enforcement

discretion,” even “seemingly mandatory legislative

commands” do not create arrest mandates enforceable

by third parties against the government absent “some

19

stronger indication” than the word “shall.” Castle

Rock, 545 U.S. at 761 (citing Chicago v. Morales, 527

U.S. 41 (1999)). Absent the clearest of indications to

the contrary, the discretion to arrest belongs to the

enforcing agency, not third parties.

As Sixth Circuit Chief Judge Sutton recently

explained, there is “no ‘stronger indication’ from

Congress” that § 1226(c) “creates a judicially enforceable

mandate.” Arizona, 40 F.4th at 391. The States

have suggested that indications of congressional

dissatisfaction with enforcement practices and desire

to increase detention of noncitizens subject to

§ 1226(c) “provided whatever clear statement of

intent Castle Rock may require.” Opp’n to Mot. for

Stay 37-38. But the same was true in Castle Rock

itself. The legislative history of the Colorado law at

issue there indicated grave dissatisfaction with

existing enforcement of domestic violence laws, and a

desire for more domestic violence arrests. Castle

Rock, 545 U.S. at 779-781 (Stevens, J., dissenting)

(explaining statute was part of “a nationwide

movement of States that took aim at the crisis of

police underenforcement in the domestic violence

sphere”); id. at 759-760 & n.6 (majority opinion)

(noting legislator’s statement that “[t]he police must

make probable cause arrests”). Still, this Court held

that “shall” was insufficient to create a mandate

enforceable against the government. So too, here.

The court of appeals suggested that Castle Rock

“was based, not on a police department-wide policy of

not enforcing restraining orders, but rather an

individualized instance of nonenforcement.” J.A. 478.

But that is a distinction without a difference. It is not

plausible that, for example, the Court’s analysis of

the Colorado statute would have been the exact

opposite had the suit been a class action or joined

20

claims that alleged a pattern or practice of nonenforcement. See Castle Rock, 545 U.S. at 760

(“We do not believe that these provisions of Colorado

law truly made enforcement of restraining orders

mandatory.”) (emphasis added and omitted). In any

event, the claim asserted in Castle Rock was in fact a

pattern-or-practice-type claim: namely, that the

“police department had ‘an official policy or custom of

failing to respond properly to complaints of

restraining order violations’ and ‘tolerate[d] the nonenforcement of restraining orders by its police

officers.” Id. at 754 (alteration in original).3

In the stay proceedings before this Court, the States

argued that “Congress has instructed [the federal

Petitioners] to detain certain criminal aliens ‘when the

alien is released’ from criminal custody, not when they

have determined whether to institute removal

proceedings.” Opp’n to Mot. for Stay 36 n.5. But that

contention ignores the central significance of the

pursuit of removal proceedings in the statutory

scheme. As explained above, all the arrest and

detention powers in § 1226 are predicated on pursuit

of removal, and the statute leaves the predicate

decision whether to pursue removal to DHS’s

discretion. If DHS has declined to pursue proceedings,

§ 1226 in general, and subsection (c) in particular,

simply does not apply.

3

Notably, even before Castle Rock, the Fifth Circuit recognized

that “shall” often imposes no enforceable mandate “when duties

within the traditional realm of prosecutorial discretion are

involved.” City of Seabrook, 659 F.2d at 1374 n.3. And in

contrast to the court of appeals’ suggestion below that the Castle

Rock principle does not apply to federal agencies, J.A. 478, City

of Seabrook rejected an attempt to enforce a purported statutory

mandate against the Environmental Protection Agency.

21

Earlier in this litigation, the States maintained

that “[§] 1226(c)(1) requires detention even for aliens

who will never face removal proceedings.” Texas, 14

F.4th at 338 n.54 (emphasis added). But the Fifth

Circuit properly rejected that interpretation as “at

odds with the text and [this Court’s] reading of it.” Id.

It would make no sense for Congress to authorize,

much less mandate, an immigration enforcement

arrest for someone against whom DHS has decided

not to seek removal. As the Fifth Circuit

understatedly observed: “There would, of course, be

other concerns with indefinite detention for someone

not facing removal.” Id. These concerns are

constitutional, because, as noted above, immigration

detention is constitutionally impermissible if it is not

in aid of removal. See Zadvydas, 533 U.S. at 690.

Indeed, if DHS reached a decision not to pursue

removal against an individual upon his release from

criminal custody, but then detained him anyway, that

detention would violate the Due Process Clause.

There is no reason to believe that Congress obliquely

required arrest and indefinite detention that serves

no purpose and would be unconstitutional.

Finally, the States and lower courts relied on Preap

to suggest that § 1226(c) imposes an arrest mandate

enforceable against the government. But like this

Court’s other precedents addressing § 1226(c), Preap

was a case “in which detainees subject to enforcement

action were seeking their release.” Arizona, 40 F.4th

at 392 (quoting Texas, 14 F.4th at 338) (emphasis

added). And as explained above, the Guidance does

not address detention and release issues at all, but

only the discretionary decisions to pursue an

individual’s removal. Thus, the Sixth Circuit

recognized that “[i]n explaining that detainees are

not entitled to bond hearings or release under these

22

statutes, the [Supreme] Court had no occasion to

consider whether the statutes subject the

Department to a judicially enforceable mandate to

arrest” noncitizens whom DHS has decided not to

remove. Id; see also Texas, 14 F.4th at 338.

Preap never suggested that § 1226(c) requires

arrest where DHS has chosen not to pursue

proceedings, nor that it constrains in any way DHS’s

discretionary choice to pursue such proceedings. To

the contrary, Preap held that subsection (c) is “simply

a limit on the authority conferred by subsection (a).”

139 S. Ct. at 966. And as explained above, § 1226(a)

applies only “pending a decision on removal.” Id. at

959. The same is true of § 1226(c). Nothing in the

Guidance remotely prohibits an arrest for someone

who both has qualifying criminal history under

§ 1226(c) and against whom DHS has decided to

pursue removal proceedings, or is still considering

whether to pursue such proceedings.4

III. NOTHING IN THE GUIDANCE VIOLATES

§ 1231(a)(2).

The Guidance also does not violate 8 U.S.C.

§ 1231(a)(2). That statute addresses detention after a

removal order becomes administratively final. Titled

4

Preap noted that “it would be very strange for Congress to

forbid the release of aliens who need not be arrested in the first

place.” 139 S. Ct. at 970. That observation describes precisely

those noncitizens against whom DHS had decided to pursue

removal proceedings—like those at issue in Preap. It would be

equally strange for Congress to require arrest of noncitizens who

DHS has decided not to remove. As explained above, if DHS

chooses to forego proceedings, or to drop them, then § 1226(c) does

not apply at all, so it requires neither arrest nor continued

detention. Congress could not, consistent with the Due Process

Clause, authorize detention that is not in furtherance of removal.

23

“Detention,” it provides that DHS “shall detain” a

noncitizen ordered removed “[d]uring the removal

period.” Id. That period typically begins when a

removal order becomes administratively final, and

lasts 90 days. See id. §§ 1231(a)(1)(A), (B)(i); Johnson

v. Guzman Chavez, 141 S. Ct. 2271, 2281 (2021).

Section 1231(a)(2) goes on to state that “[u]nder no

circumstance during the removal period shall [DHS]

release an alien” found removable on certain specified

grounds. Because, as already explained, the Guidance

does not address detention or release decisions, but

speaks only to the discretionary decision to pursue

removal, nothing in the Guidance could possibly

violate the detention provisions of § 1231(a)(2). See

Point I, supra.

The States, however, maintain that § 1231(a)(2)

mandates arrest as well, and that the Guidance

violates that mandate by authorizing DHS not to

arrest certain noncitizens with final removal orders.

See Opp’n to Mot. for Stay 9, 35-36. Again, as an

initial matter, nothing in the Guidance prohibits

arrests of any kind. The States’ view seems to be that

the Guidance is illegal because it “did not instruct

officers to . . . arrest . . . aliens subject to . . . section

1231(a)(2).” Id. at 9 (emphasis added). But if

§ 1231(a)(2) already instructs officers to do so, the

Guidance need not repeat that instruction. And its

mere silence on the matter does not establish any

conflict. If DHS officials are required to arrest by

§ 1231(a)(2),

then

the

Guidance

does

not

countermand that instruction, because by its terms it

only addresses discretionary decisions. The Guidance

does not purport to transform any mandatory

obligation into a discretionary decision, but merely

guides discretion where it exists.

24

But even if the Guidance expressly prohibited such

arrests where DHS has exercised its discretion not to

execute removal, there would be no conflict with

§ 1231(a)(2). First, as with § 1226(c), § 1231 applies

only where the Executive has chosen to execute an

individual’s removal order. The power to “decline to

execute a final order of deportation” has long been

recognized as within the agency’s prosecutorial

discretion. AADC, 525 U.S. at 484 (citation omitted);

see also Nken v. Holder, 556 U.S. 418, 439-440 (2009)

(Alito, J., dissenting) (“Once an order of removal has

become final, it may be executed at any time”—but

“the Executive Branch” may still “stay its own hand.”);

Asika v. Ashcroft, 362 F.3d 264, 268 n.5 (4th Cir. 2004)

(per curiam) (quoting a 2000 Executive Branch

memorandum explaining that “a statute directing that

the INS ‘shall’ remove removable aliens would not be

construed by itself to limit prosecutorial discretion,”

and explaining that this “practice has been sanctioned

by courts in both the immigration and criminal

context”) (cleaned up). Here, too, the purpose of

detention is to effectuate removal, so detention where

DHS has elected not to pursue removal would serve

no purpose and thus be unconstitutional. As with

§ 1226(c), where the Executive exercises its discretion

to decline to pursue an individual’s removal, § 1231’s

detention provisions do not apply.

Second, even assuming that § 1231(a)(2) encompasses

arrest in such cases, it does not create a mandate

enforceable by third parties under Castle Rock.

Section 1231(a)(2) provides only that DHS “shall

detain” during the removal period; it does not say

anything directing DHS to “arrest” any noncitizens,

“apprehend” them, or “take them into custody.” If

even a statute stating that government officials “shall

25

arrest” does not create an arrest mandate enforceable

by third parties, then a fortiori a statute that is silent

as to arrest cannot do so. See Castle Rock, 545 U.S.

at 761.

That conclusion is reinforced by context, as here too,

“Congress has shown that it knows how to adopt the

omitted language.” Rotkiske, 140 S. Ct. at 361. Indeed,

various provisions in the Immigration and Nationality

Act contrast authority to “detain” with authority to

“arrest” (or synonyms thereof). Section 1226(a), for

example, addresses (as its title states) “[a]pprehension

and detention” as separate authorities. That statute

provides that a noncitizen may be “arrested and

detained,” and goes on to provide that DHS “may

continue to detain the arrested alien.” 8 U.S.C.

§ 1226(a) (emphasis added). Other examples are

common. See, e.g., 8 U.S.C. § 1226(b) (DHS may

“rearrest the alien under the original warrant, and

detain the alien”); id. § 1252c(a) (“State and local law

enforcement officials are authorized to arrest and

detain” certain noncitizens); id. § 1357(g)(10)(B)

(addressing cooperation in the “identification,

apprehension, detention, or removal” of noncitizens).

Indeed, elsewhere in § 1231, Congress used the term

“arrest” yet chose not to do so in § 1231(a)(2). Id.

§ 1231(a)(4)(A) (addressing the “possibility of arrest”

on criminal charges).

Section 1231(a)(2) includes no arrest mandate,

much less any that satisfies Castle Rock’s standard

for a mandate enforceable by third parties. The

States’ contention that the statute nevertheless

requires arrest, and that they can enforce that

mandate by vacating the Guidance, thus must fail.

26

IV. EVEN IF THERE WERE STATUTORY

VIOLATIONS, THEY WOULD REPRESENT

ONLY A SMALL PROPORTION OF ALL

PERSONS

ADDRESSED

BY

THE

GUIDANCE, AND WOULD NOT WARRANT

VACATING THE GUIDANCE AS A WHOLE.

The district court vacated the Guidance in full. But

the ostensible conflicts it identified affect a tiny

percentage of the prosecutorial decisions the

Guidance covers. As the district court itself

acknowledged: “This case is not about aliens in

general, or even aliens who are in the United States

illegally.” J.A. 291. Rather, the States’ arguments

and the opinions below focus narrowly on asserted

violations of §§ 1226(c) and 1231(a)(2) when the

Guidance is applied to individuals subject to those

statutory provisions. Yet those statutes cover only a

minuscule proportion of all people covered by the

Guidance. Thus, even if the States were correct as to

individuals covered by §§ 1226(c) and 1231(a)(2), that

conclusion would invalidate the Guidance only as to

those narrow circumstances, and not in the many

other circumstances that the Guidance addresses. In

effect, the district court provided facial relief for a

narrow as-applied challenge, even though the

challengers did not even claim that the Guidance

violates the immigration laws in the vast majority of

instances it covers.

The mismatch between the claimed statutory

violations and the ordered relief is stark. There are

millions of undocumented people in the United

States, along with millions of other people with legal

status who might be subject to immigration

27

enforcement.5 The Guidance applies to all of them,

and helps guide individual DHS officials’ exercise of

discretion as to whose removals to prioritize. See

J.A. 112 (noting “there are more than 11 million

undocumented or otherwise removable noncitizens in

the United States,” and the agency must prioritize in

choosing to pursue enforcement against them). But

the arguments and the reasoning below concerned

only the small subset of those individuals subject to

§§ 1226(c) and 1231(a)(2). Indeed, the district court

went “to great pains to make clear that only a subset

of aliens is implicated by the statutes at issue in this

litigation: those covered by Sections 1226(c) and

1231(a)(2).” J.A. 376; see also J.A. 481 (court of

appeals emphasizing that “the relevant population at

issue in this case” are “aliens covered by § 1226(c) or

§ 1231(a)(2)”). Thus, the rationale and the relief

granted simply do not match.

Consider first § 1231(a)(2). That statute, by its

plain terms, applies only during the 90-day “removal

period.” See Johnson v. Arteaga-Martinez, 142 S. Ct.

1827, 1832 (2022) (explaining that other provisions

control after removal period). Thus, the States’

§ 1231(a)(2) claim—whatever its merits—speaks only

to noncitizens issued removal orders who are still

within the removal period, not those for whom the

5

See Migration Policy Inst., Profile of the Unauthorized

Population, https://bit.ly/3jTAk74; DHS Office of Immigr.

Statistics, Estimates of the Lawful Permanent Resident

Population in the United States and the Subpopulation Eligible

to Naturalize: 2015-2019 at 1 (Sept. 2019) (over 13 million

permanent residents), https://bit.ly/3mvRBoX; DHS Office of

Immigr. Statistics, Population Estimates of Nonimmigrants

Residing in the United States: Fiscal Years 2017-2019 at 1 (May

2021) (over 3 million students, workers, and others),

https://bit.ly/3JecAXn.

28

period has expired, or those not subject to a final

order of removal because their proceedings are still

pending or because DHS has not initiated

proceedings.

The number of noncitizens still in the 90-day

removal period is vanishingly small in comparison

even to the total number of noncitizens with removal

orders, much less as compared to the number of

noncitizens who might be out of status or otherwise

subject to removal. There are nearly 1.2 million

outstanding removal orders, J.A. 425. The total

number of removal orders issued through regular

removal proceedings that are within the 90-day

removal period make up less than 1 percent of those

outstanding orders.6 As to the remainder, the federal

government has frequently stayed its hand for

years—often because of ongoing challenges to those

orders, such as pending circuit court appeals or

motions to reopen, or as a result of discretionary

grants of deferred action or temporary protected

status. And, of course, § 1231(a)(2) says nothing at all

about the many millions of other noncitizens who do

not have an administratively final removal order at

all, because removal proceedings have not been

initiated or are still ongoing.

Much the same is true of § 1226(c). It applies only

to people removable by virtue of certain specified

criminal conduct. That category, too, represents only

a very small proportion of the overall population of

potentially removable noncitizens. A recent study

indicates that, as of 2010, some 97% of the overall

6

See Hausman, David K., Fact Sheet: Noncitizens in the

Removal Period, https://tinyurl.com/58hfxsks.

29

U.S. population had never spent time in prison.7 And

that figure is even greater for noncitizens, the

population potentially subject to § 1226(c): Researchers

have consistently found that undocumented immigrants,

for example, have substantially lower crime rates

than native-born citizens.8

By any estimation, the vast majority of potentially

removable noncitizens are not covered by either of

these statutes. Yet the district court vacated the

Guidance in toto.

Had some part of the Guidance violated those

statutes, the district court might have vacated the

offending portion of the Guidance—for example, any

provisions barring officers from making arrests that

the district court concluded were required by

enforceable statutory commands. See Monsanto Co. v.

Geertson Seed Farms, 561 U.S. 139, 165-166 (2010)

(noting availability of partial vacatur); Ayotte v.

Planned Parenthood of N. New England, 546 U.S.

320, 328 (2006) (courts should “limit the solution to

the problem”). Or it might have held the Guidance

invalid as to individuals covered by §§ 1226(c) and

1231(a)(2).

7

Flurry, Alan, Study estimates U.S. population with felony

convictions, UGA Today (Oct. 1, 2017), https://news.uga.edu/

total-us-population-with-felony-convictions/.

8 See, e.g., Light, Michael T., He, Jingying, & Robey, Jason P.,

Comparing crime rates between undocumented immigrants, legal

immigrants, and native-born US citizens in Texas 1, PNAS, Vol.

117, No. 51 (Dec. 22, 2020), https://www.pnas.org/doi/pdf/10.1073/

pnas.2014704117 (finding that, relative to undocumented

immigrants, U.S.-born citizens are over twice as likely to be

arrested for violent crimes, 2.5 times more likely to be arrested

for drug crimes, and over 4 times more likely to be arrested for

property crimes).

30

Instead, the district court vacated the Guidance in

full. It asserted it was unable to strike only those

provisions of the Guidance it found inconsistent with

§§ 1226(c) and 1231(a)(2) because the Guidance is not

“divisible.” J.A. 397-398. That approach compounded

error upon error. It was error to find statutory violations

without any textual connection to the Guidance. And it

was double error to use that very lack of a textual basis

to justify vacating the Guidance wholesale—even

though the two statutory provisions the district court

found contradicted are, even on the district court’s

reading, irrelevant to the vast majority of persons

whose treatment might be influenced by the Guidance.

CONCLUSION

For the reasons above, amici respectfully request that

the Court reverse the judgment of the district court.

Respectfully Submitted,

Michael K.T. Tan

Omar C. Jadwat

Anand Balakrishnan

Daniel A. Galindo

Noor Zafar

AMERICAN CIVIL LIBERTIES

UNION FOUNDATION

125 Broad Street

New York, NY 10004

David D. Cole

AMERICAN CIVIL LIBERTIES

UNION FOUNDATION

915 15th Street, NW

Washington, D.C. 20005

Cody Wofsy

Counsel of Record

Cecillia D. Wang

AMERICAN CIVIL LIBERTIES

UNION FOUNDATION

39 Drumm Street

San Francisco, CA 94111

(415) 343-0770

cwofsy@aclu.org