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

Supreme Court briefSep 19, 2022

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No. 22-58

IN THE

Supreme Court of the United States

UNITED STATES OF AMERICA, et al.,

Petitioners,

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 FOR STATES OF NEW YORK, CALIFORNIA,

CONNECTICUT, DELAWARE, ILLINOIS, MAINE,

MARYLAND, MASSACHUSETTS, MINNESOTA,

NEVADA, NEW JERSEY, NEW MEXICO, OREGON,

RHODE ISLAND, VERMONT, AND WASHINGTON, AND

THE DISTRICT OF COLUMBIA, AS AMICI CURIAE

IN SUPPORT OF PETITIONERS

ROB BONTA

Attorney General

State of California

MICHAEL MONGAN

Solicitor General

HELEN H. HONG

Deputy Solicitor General

JAMES F. ZAHRADKA II

Supervising Deputy

Attorney General

CHRISTOPHER PAUL

KAILANI MEDEIROS

Deputy Attorneys General

455 Golden Gate Ave.

Ste. 11000

San Francisco, CA 94102

LETITIA JAMES

Attorney General

State of New York

BARBARA D. UNDERWOOD*

Solicitor General

ESTER MURDUKHAYEVA

Deputy Solicitor General

ANDREA W. TRENTO

Assistant Solicitor General

28 Liberty Street

New York, New York 10005

(212) 416-8016

barbara.underwood@ag.ny.gov

*Counsel of Record

(Counsel listing continues on signature pages.)

TABLE OF CONTENTS

Page

Table of Authorities ...................................................... ii

Interests of Amici States ...............................................1

Statement of the Case ....................................................3

Summary of Argument ..................................................6

Argument ........................................................................7

I. The Guidelines Are Not Contrary to Law. ........ 7

The Guidelines Do Not Contravene

Section 1226(c) or Section 1231(a). ............7

The Guidelines Are Consistent with a

Longstanding Tradition of

Prosecutorial Discretion. ..........................11

II. The Guidelines Reflect DHS’s Reasoned

Judgment Regarding Prioritization of

Enforcement Resources. ................................... 17

The Guidelines Seek to Enhance

Public Safety. ............................................17

The Guidelines Promote Public Health

and the Stability of Communities............20

Conclusion.....................................................................25

TABLE OF AUTHORITIES

Cases

Page(s)

Arizona v. Biden, No. 3:21-cv-314, 2022 WL

839672 (S.D. Ohio Mar. 22, 2022) ........................... 4

Arizona v. Biden, 40 F.4th 375 (6th Cir. 2022) ... 4, 8, 18

Arizona v. United States, 567 U.S. 387 (2012)... 8, 10, 14

Bond v. United States, 572 U.S. 844 (2014) ............... 13

Brown v. Heymann, 62 N.J. 1 (1972) .......................... 16

Carrick v. Locke, 125 Wash. 2d 129 (1994)................. 16

Cockerham-Ellerbee v. Town of Jonesville, 176

N.C. App. 372 (2006) .............................................. 14

The Confiscation Cases, 74 U.S. (7 Wall.) 454

(1868) ....................................................................... 12

Deegan v. State, 711 N.W.2d 89 (Minn. 2006) ............ 16

Demore v. Kim, 538 U.S. 510 (2003) ....................... 9, 10

Department of Homeland Sec. v. Thuraissigiam,

140 S. Ct. 1959 (2020) ............................................ 15

Gananian v. Wagstaffe, 199 Cal. App. 4th 1532

(2011) ....................................................................... 13

Heckler v. Chaney, 470 U.S. 821 (1985) ................ 12, 13

Hernandez Avilez v. Garland, No. 20-16142,

2022 WL 4101174 (9th Cir. Sept. 8, 2022) .............. 9

In re Advisory Op. to the Governor, 732 A.2d 55

(R.I. 1999) ................................................................ 16

In re Aiken County, 725 F.3d 255 (D.C. Cir.

2013) .................................................................. 12, 15

Jennings v. Rodriguez, 138 S. Ct. 830 (2018) ............. 10

Johnson v. Guzman Chavez, 141 S. Ct. 2271 (2021) .. 10

iii

Cases

Page(s)

Marine Forests Soc ‘y v. California Coastal

Comm ‘n, 36 Cal. 4th 1 (2005) ............................... 16

Marshall v. Ellison, 132 Ill. App. 3d 732 .................... 14

Matter of Joseph, 22 I. & N. Dec. 799 (BIA 1999) ........ 9

Morris v. County of Marin, 18 Cal. 3d 901 (1977)...... 13

Murphy ex rel. County of Rensselaer v. Dwyer,

101 A.D.2d 376 (N.Y. App. Div. 1984) ................... 13

Murphy v. Smith, 138 S. Ct. 784 (2018) ....................... 8

Nielsen v. Preap, 139 S. Ct. 954 (2019) ....................... 10

Puerto Rico v. Franklin Cal. Tax-Free Trust,

579 U.S. 115 (2016)................................................... 8

Reno v. American-Arab Anti-Discrimination

Comm., 525 U.S. 471 (1999)................................... 15

State v. Rice, 174 Wash. 2d 884 (2012) ....................... 14

State v. Wheat, 573 S.W.2d 126 (Mo. App. 1978) ....... 14

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

(2005) ................................................................... 8, 15

United States ex rel. Eisenstein v. City of New

York, 556 U.S. 928 (2009)......................................... 9

Vretenar v. Hebron, 144 Wis. 655 (1988) .................... 14

Wilcox v. Niagara of Wis. Paper Corp., 965 F.2d

355 (7th Cir. 1992) .................................................... 8

Constitution

U.S. Const.

art. II, § 2, cl. 1 ........................................................ 12

art. II, § 3 ................................................................. 12

Laws

Page(s)

Illegal Immigration Reform and Immigrant

Responsibility Act of 1996, Pub. L. No. 104208, 110 Stat. 3009-546 ............................................ 8

6 U.S.C. § 202(5) ............................................................. 3

8 U.S.C.

§ 1101(a) .................................................................... 1

§ 1226(c)........................................................... passim

§ 1226(e) .................................................................... 9

§ 1231(a) .......................................................... passim

N.Y. County Law § 700(1)............................................ 13

Regulations

8 C.F.R.

§ 274a.12(a) ............................................................. 22

§ 274a.12(c).............................................................. 22

Miscellaneous Authorities

Adelman, Robert, et al., Urban Crime Rates and

the Changing Face of Immigration: Evidence

Across Four Decades, 15 J. of Ethnicity in

Crim. Just. 52 (2017),

https://www.immigrationresearch.org/system/fi

les/Urban_crime_rates_and_the_changing_face

_of_immigration_Evidence_across_four_decade

s.pdf ......................................................................... 19

Aleaziz, Hamed, & Alejandra Reyes-Velarde, Biden

Administration Remade ICE After Trump: Will

It Last?, L.A. Times (Aug. 19, 2022),

https://www.latimes.com/california/story/202208-19/biden-administration-remade-iceimmigration-trump ................................................. 18

Miscellaneous Authorities

Page(s)

American Immigr. Council, Fact Sheet, Immigrants in the United States (Sept. 21, 2021),

https://www.americanimmigrationcouncil.org/s

ites/default/files/research/immigrants_in_the_u

nited_states_0.pdf ................................................... 22

American Immigr. Council, Fact Sheet, Value

Added: Immigrants Create Jobs and Businesses,

Boost Wages of Native-Born Workers (Jan. 1,

2012),

https://www.americanimmigrationcouncil.org/re

search/value-added-immigrants-create-jobs-andbusinesses-boost-wages-native-born-workers....... 23

American Immigration Council, Map the Impact of

Immigration (n.d.),

https://data.americanimmigrationcouncil.org/m

ap-the-impact/ ......................................................... 21

Arthur, Rob, Latinos in Three Cities Are Reporting

Fewer Crimes Since Trump Took Officem (May

18, 2017),

https://fivethirtyeight.com/features/latinosreport-fewer-crimes-in-three-cities-amid-fearsof-deportation/ ......................................................... 20

Association for Neighborhood & Hous. Dev., The

Forgotten Tenants: New York City ‘s Immigrant

Small Business Owners (2019),

https://anhd.org/sites/default/files/anhd_icc_rep

ort_final_march_2019.pdf ...................................... 24

Azoulay, Pierre, et al., Immigration and Entrepreneurship in the United States (Nat ‘l Bureau of

Econ. Rsch., Working Paper No. 27778, 2020),

https://www.nber.org/system/files/working_pap

ers/w27778/w27778.pdf .......................................... 23

Miscellaneous Authorities

Page(s)

Bains, Chiraag, How Immigrants Make

Communities Safer, The Marshall Project (Feb.

28, 2017), https://www.themarshallproject.org/

2017/02/28/how-immigrants-makecommunities-safer .................................................. 19

Bever, Lindsey, Hispanics Are ‘Going Further Into

the Shadows” Amid Chilling Immigration

Debate, Police Say, Wash. Post (May 12, 2017),

https://www.washingtonpost.com/news/postnation/wp/2017/05/12/immigration-debatemight-be-having-a-chilling-effect-on-crimereporting-in-hispanic-communities-police-say/ .... 20

Butcher, Kristin F., & Anne Morrison Piehl, Why

Are Immigrants ‘ Incarceration Rates so Low?

Evidence on Selective Immigration, Deterrence,

and Deportation (Nat ‘l Bureau of Econ. Rsch.,

Working Paper No. 13229, 2007),

https://www.nber.org/system/files/working_pap

ers/w13229/w13229.pdf .......................................... 19

Camarota, Steven A., & Karen Zeigler, Ctr. for

Immgr. Studies, Immigration Population Hits

Record 46.2 Million in November 2021 (Dec.

20, 2021), https://cis.org/Camarota/ImmigrantPopulation-Hits-Record-462-MillionNovember-2021 ....................................................... 21

Capps, Randy, et al., Migration Pol ‘y Inst., Fact

Sheet, Unauthorized Immigrants in the United

States: Stable Numbers, Changing Origins (Dec.

2020), https://www.migrationpolicy.org/sites/

default/files/publications/mpi-unauthorizedimmigrants-stablenumberschangingorigins_final.pdf................................. 22, 24

vii

Miscellaneous Authorities

Page(s)

Ciancio, Alberto, The Impact of Immigration

Policies on Local Enforcement, Crime and

Policing Efficiency vii (2017) (Ph.D.

dissertation, University of Pennsylvania),

https://repository.upenn.edu/cgi/viewcontent.cg

i?article=4017&context=edissertations ................. 20

Giovanni Peri & Justin C. Wiltshire, Univ. of Cal.

Davis, Glob. Migration Ctr., The Role of Immigrants as Essential Workers During the Covid19 Pandemic (last updated Apr. 27, 2020),

https://globalmigration.ucdavis.edu/sites/g/files

/dgvnsk8181/files/inlinefiles/Immigration%20Fact_Role%20of%20Immi

grants%20as%20Essential%20Workers%20dur

ing%20the%20COVID-19%20Pandemic.pdf......... 23

Glenn, Heidi, Fear of Deportation Spurs 4 Women

to Drop Domestic Abuse Cases in Denver, Nat ‘l

Pub. Radio (Mar. 21, 2017),

https://www.npr.org/2017/03/21/520841332/fea

r-of-deportation-spurs-4-women-to-dropdomestic-abuse-cases-in-denver ............................ 20

Hallett, Nicole, Rethinking Prosecutorial Discretion in Immigration Enforcement, 42 Cardozo

L. Rev. 1765 (2021) ........................................... 17, 18

Markowitz, Peter L., Prosecutorial Discretion

Power at Its Zenith: The Power to Protect

Liberty, 97 B.U. L. Rev. 489 (2017) ................. 12, 15

Martinez Jr., Ramiro, & Matthew T. Lee, On

Immigration and Crime, in 1 Criminal Justice

2000 (Gary LaFree ed., 2000),

https://www.ncjrs.gov/criminal_justice2000/vol

_1/02j.pdf ................................................................. 19

viii

Miscellaneous Authorities

Page(s)

Minier, Jenny, Univ. of Ky. Ctr. for Equality &

Soc. Just., Immigrants Benefit the Community

and Economy (Sept. 2017),

https://cesj.as.uky.edu/sites/default/files/CESJ

%20Position%20Paper%203%20%20DACA%20-%20Minier.pdf .............................. 23

New Am. Econ., Immigrants and the Economy in

the United States of America (n.d.),

https://www.newamericaneconomy.org/location

s/national/ ................................................................ 23

New Am. Econ., New York Archives (n.d.),

https://www.newamericaneconomy.org/location

s/new-york/ .............................................................. 22

Nowrasteh, Alex, et al., Illegal Immigration and

Crime in Texas 4 (Cato Inst. Working Paper

No. 60, 2020),

https://www.cato.org/sites/cato.org/files/202010/working-paper-60.pdf ........................................ 19

Orrenius, Pia, Benefits of Immigration Outweigh

the Costs, The Catalyst, issue 2 (George W.

Bush Inst. Spring 2016),

https://www.bushcenter.org/catalyst/northamerican-century/benefits-of-immigrationoutweigh-costs.html................................................ 23

Sherman, Arloc, et al., Ctr. On Budget & Pol ‘y

Priorities, Immigrants Contribute Greatly to

U.S. Economy, Despite Administration ‘s

“Public Charge” Rule Rationale (Aug. 15,

2019), https://www.cbpp.org/research/povertyand-inequality/immigrants-contribute-greatlyto-us-economy-despite-administrations ................ 23

Miscellaneous Authorities

Page(s)

Tarr, G. Alan, Interpreting the Separation of

Powers in State Constitutions, 59 N.Y.U. Ann.

Surv. Am. L. 329 (2003) ......................................... 16

TRAC Immigration, Immigration Court Backlog

Now Growing Faster Than Ever, Burying

Judges in an Avalanche of Cases (Jan. 18,

2022),

https://trac.syr.edu/immigration/reports/675/....... 10

U.N. Dep ‘t of Econ. & Soc. Affairs, Population

Div., International Migration 2020: Highlights

(2020),

https://www.un.org/development/desa/pd/sites/

www.un.org.development.desa.pd/files/undesa

_pd_2020_international_migration_highlights.

pdf ............................................................................ 21

U.S. Congress, Joint Econ. Comm., Immigrants

are Vital to the U.S. Economy (Apr. 6, 2021),

https://www.jec.senate.gov/public/index.cfm/de

mocrats/2021/4/immigrants-are-vital-to-the-us-economy ................................................................ 22

U.S. Internal Revenue Serv., Aliens Employed in

the U.S. – Social Security Taxes (last updated

Aug. 17, 2022),

https://www.irs.gov/individuals/internationaltaxpayers/aliens-employed-in-the-us-socialsecurity-taxes .......................................................... 22

U.S. Internal Revenue Serv., Taxation of

Nonresident Aliens (last updated June 2, 2022),

https://www.irs.gov/individuals/internationaltaxpayers/taxation-of-nonresident-aliens ............. 22

INTERESTS OF AMICI STATES

The States of New York, California, Connecticut,

Delaware, Illinois, Maine, Maryland, Massachusetts,

Minnesota, Nevada, New Jersey, New Mexico, Oregon,

Rhode Island, Vermont, and Washington, and the

District of Columbia submit this amicus curiae brief in

support of petitioners.

Amici have a strong interest in supporting the

executive authority to set law enforcement priorities, in

order to deploy limited government resources to

promote the fairness, effectiveness, and integrity of

criminal and civil enforcement systems. In amici’s

experience, establishing such priorities does not eliminate a law enforcement officer’s capacity to make casespecific determinations; rather, it performs the important function of informing those inherently discretionary decisions and providing benchmarks for consideration in the exercise of discretion.

Amici States are also home to millions of noncitizens who are valued and active contributors to our

communities, work forces, and civic organizations. 1

These state residents attend school, serve as essential

workers, enlist in the military, and care for the sick and

elderly. They also support millions of U.S.-citizen family members. Immigrants add billions to federal, state,

and local budgets by paying taxes and spending their

income. Amici thus have a significant interest in

supporting the federal government’s judgment to devote

1 This brief uses “noncitizen” in place of the statutory term

“alien,” which refers to “any person not a citizen or national of the

United States.” 8 U.S.C. § 1101(a)(3). The brief also uses “immigrant” to refer more broadly to all foreign-born individuals,

including those who have been naturalized.

its limited immigration enforcement resources toward

the subset of removable immigrants who pose a substantial threat to public safety in their communities,

rather than adopt a haphazard approach that can

inflict substantial harms on immigrants, their families,

and their larger communities.

This case implicates amici’s interests in several

respects. First, a ruling that the federal guidelines

challenged here are inconsistent with the Immigration

and Naturalization Act (INA) could undermine principles of prosecutorial discretion that have guided law

enforcement at both the state and federal levels of

government. Interpreting federal immigration statutes

to require the federal government to apprehend, detain,

institute removal proceedings against, and remove

qualifying noncitizens intrudes on executive enforcement prerogatives in a way that would be in tension

with longstanding principles that have guided state

law enforcement discretion since the Nation’s founding.

Second, judicial interference with the federal

guidelines at issue could undermine amici’s interests in

the safety and stability of immigrant communities.

There is no dispute that the federal government is

unable to enforce the Nation’s immigration laws against

every noncitizen who might be subject to detention or

removal. The challenged guidelines address this reality

by following the past practice of specifying priority

categories of removable noncitizens—generally, those

removable noncitizens who pose the greatest threat to

public safety—and providing individual enforcement

officers with factors to consider in identifying priority

removal candidates. Vacatur of the guidelines could

result in unprincipled and random enforcement actions

that undermine the health and stability of communities

by detaining and removing productive residents, rather

than dangerous individuals.

STATEMENT OF THE CASE

On September 30, 2021, Secretary of Homeland

Security Alejandro Mayorkas issued Guidelines for the

Enforcement of Civil Immigration Law (J.A. 111-120)

pursuant to his authority to “establish national immigration enforcement policies and priorities,” 6 U.S.C.

§ 202(5). The Guidelines explained that the U.S.

Department of Homeland Security (DHS) did “not have

the resources to apprehend and seek the removal of

every one” of the “more than 11 million undocumented

or otherwise removable noncitizens in the United

States.” (J.A. 112.) Accordingly, the Guidelines established “civil immigration enforcement priorities” pursuant to which three categories of noncitizens—those

who posed a “threat to our national security, public

safety, and border security”—were “prioritize[d] for

apprehension and removal.” (J.A. 113.)

By their terms, the Guidelines “do[] not compel an

action to be taken or not taken” and “leave[] the exercise of prosecutorial discretion to the judgment of” DHS

personnel. (J.A. 118.) Likewise, the Guidelines “[are]

not intended to, do[] not, and may not be relied upon to

create any right or benefit, substantive or procedural,

enforceable at law by any party in any administrative,

civil, or criminal matter.” (J.A. 120.)

On September 30, 2021, DHS also released a

memorandum articulating the agency’s “significant

considerations” in promulgating the Guidelines, including resource limitations (J.A. 130-137, 156-157), public

safety considerations (J.A. 144-148), the enforcement of

other laws (J.A. 148-149), the impact of immigration

enforcement priorities on States (J.A. 149-155), and the

availability and feasibility of alternative approaches

(J.A. 160-164). The memorandum also situated the

Guidelines in the context of a century-old practice by

DHS (and its predecessor agencies) of developing

prospective prosecutorial discretion policies to guide

the agency’s enforcement activities. (J.A. 124-130.)

Two different groups of state plaintiffs sued to

challenge the Guidelines. Arizona, Montana and Ohio

sued in the U.S. District Court for the Southern District

of Ohio and obtained a preliminary injunction against

application of the Guidelines. That injunction was

subsequently reversed by the Sixth Circuit. See Arizona

v. Biden, No. 3:21-cv-314, 2022 WL 839672 (S.D. Ohio

Mar. 22, 2022), rev’d & remanded, 40 F.4th 375 (6th

Cir. 2022). The Sixth Circuit reasoned that, among

other deficiencies, the plaintiffs were unlikely to succeed on the merits of their claims that the Guidelines

violated the Administrative Procedure Act (APA). 40

F.4th at 390-93. The court concluded that the Guidelines did not conflict with provisions of the INA governing the detention and removal of certain noncitizens

because of the “considerable discretion already embedded in the immigration system.” Id. at 390. The court

also concluded that the Guidelines were not arbitrary

or capricious because DHS had considered the relevant

issues and had offered a satisfactory explanation for its

decision. Id. at 392-93.

In the case giving rise to this appeal, Texas and

Louisiana sued in the U.S. District Court for the Southern District of Texas and, after trial, were awarded

final judgment and obtained vacatur of the Guidelines.

(J.A. 405.) After concluding that the plaintiffs had

standing and that the Guidelines were subject to

judicial review, the district court held that the Guidelines’ priority enforcement categories “flatly contradict[] the detention mandates under [8 U.S.C.

§] 1226(c) and [8 U.S.C. §] 1231(a)(2).” (J.A. 370.) Under

the court’s reading of the statutes, section 1226(c)

identifies specific categories of noncitizens that the

Attorney General “shall take into custody,” and articulates a limited set of circumstances in which the Attorney General “may release” such persons, 8 U.S.C.

§ 1226(c)(1)-(2). Section 1231(a)(2) provides that the

Attorney General “shall detain” any alien who has been

ordered removed during the “removal period,” which is

defined as the “period of 90 days” following the order of

removal. Id. § 1231(a)(1)(A), (a)(2). Those provisions,

the district court reasoned, imposed mandatory obligations in conflict with the Guidelines. (J.A. 370-374.)

The district court also held that the Guidelines were

arbitrary and capricious because DHS purportedly

inadequately considered recidivism risks and reliance

interests. (J.A. 374-382.)

The federal defendants appealed and sought a stay

of the district court’s judgment in the Fifth Circuit. The

Fifth Circuit denied the stay application. (J.A. 486.) In

relevant part, the court rejected DHS’s argument that

its prosecutorial discretion allowed it to establish the

priorities set forth in the Guidelines, because, in the

court of appeals’ view, agency-wide policies were not

entitled to the kind of deference normally afforded caseby-case enforcement determinations. (J.A. 477.) The

court concluded that the Guidelines were (i) contrary to

sections 1226(c) and 1231(a) and (ii) arbitrary and capricious. (J.A. 472-483.)

The federal defendants sought a stay in this Court.

On July 21, 2022, this Court denied the application for

stay, but granted certiorari before judgment on three

questions. (J.A. 487.) This brief addresses the second of

these questions: 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.” (J.A. 487.)

SUMMARY OF ARGUMENT

The Guidelines are not contrary to 8 U.S.C.

§§ 1226(c) and 1231(a). Although these provisions use

the term “shall,” which is often construed to impose

mandatory duties, the broader statutory context in

which those provisions are situated makes clear that

they should not be so interpreted in this instance.

Moreover, interpreting sections 1226(c) and 1231(a) to

impose mandatory duties intrudes upon the Executive’s historical prosecutorial discretion over immigration enforcement. A decision that chips away at executive law enforcement prerogatives, even in this narrow

context, could have a ripple effect that disturbs law

enforcement authority at all levels of government.

The Guidelines also reflect DHS’s reasoned decision

to prioritize enforcement efforts to remove noncitizens

who pose the greatest threat to public safety. Where, as

here, enforcement resources are limited and could not

practically be deployed against all potentially removable noncitizens, prioritization guidance reasonably

focuses enforcement efforts on direct threats to public

safety. The Guidelines also deemphasize enforcement

with respect to noncitizens who provide critical support

to their families and communities and who, in amici’s

broad experience, have been productive members of

society.

ARGUMENT

The Guidelines Are Not Contrary to Law.

The Guidelines are not contrary to law under the

APA because 8 U.S.C. §§ 1226(c) and 1231(a)(2) do not

require DHS to arrest and initiate proceedings or

execute removal orders against every noncitizen falling

within the ambit of those subsections. The Guidelines

are intended to inform (but not control) the exercise of

prosecutorial discretion in individual cases and are part

of a long history of agency policies regarding enforcement of the immigration laws. A ruling that the Guidelines conflict with the INA would contravene the longstanding view that enforcement duties are traditionally

committed to the discretion of the executive and are not

subject to judicial second-guessing.

A. The Guidelines Do Not Contravene

Section 1226(c) or Section 1231(a).

Section 1226 provides that the Attorney General

“shall take into custody any” noncitizen who is inadmissible or deportable under certain specified provisions of

the INA and “may release” such a person only for

certain law enforcement-related purposes. 8 U.S.C.

§ 1226(c)(1)-(2). Section 1231(a)(2) provides that, after

an order of removal has been entered, the Attorney

General “shall detain” the noncitizen during the 90-day

“removal period” following the order of removal;

“[u]nder no circumstance” may the Attorney General

release a noncitizen who has been found inadmissible

or deportable under one of four specified statutes. Id.

§ 1231(a)(2). If the noncitizen is not removed after 90

days, the removal and detention period may be extended

under certain circumstances, id. § 1231(a)(1)(C), but

the noncitizen “shall” otherwise be released under

supervision, id. § 1231(a)(3).

While “the word ‘shall’ usually creates a mandate,”

Murphy v. Smith, 138 S. Ct. 784, 787 (2018), “[i]t is of

course commonplace that not every use of the word

‘shall’ is treated as mandatory for legal purposes,”

Wilcox v. Niagara of Wis. Paper Corp., 965 F.2d 355,

359 n.6 (7th Cir. 1992). 2 This treatment is particularly

the case in the law enforcement or immigration enforcement context, where constitutional executive enforcement prerogatives and practical enforcement concerns

combine to insulate most enforcement determinations

from judicial review. See Town of Castle Rock v.

Gonzales, 545 U.S. 748, 761 (2005); Arizona v. United

States, 567 U.S. 387, 396 (2012). See infra at 11-16.

Here, the context of the INA’s broader statutory scheme

demonstrates that “shall” should not be construed to

require apprehension of all qualifying noncitizens.

First, as the Sixth Circuit observed, the “shall

detain” requirement in section 1231(a)(2) is accompanied by language directing that “under no circumstance” should certain criminal noncitizens be released

by the Attorney General during the removal period. See

Arizona, 40 F.4th at 391-92. If DHS had no discretion

under section 1231 whether to “detain” a noncitizen

during the removal period, the directive that certain

noncitizens should be released “under no circumstance”

2 Because the relevant provisions of sections 1226(c) and

1231(a) were passed as part of the same amendment to the INA,

see Illegal Immigration Reform and Immigrant Responsibility Act

of 1996, Pub. L. No. 104-208, §§ 303(a), 305(a)(3), 110 Stat. 3009546, 3009-585, 3009-598 (amending and enacting sections 1226

and 1331, respectively), the term “shall” as it appears in both

provisions should be given the same meaning. See Puerto Rico v.

Franklin Cal. Tax-Free Trust, 579 U.S. 115, 125-26 (2016).

in that same provision would amount to surplusage.

The district court’s rejection of such discretion in this

case thus “contradict[s] well-established principles of

statutory interpretation that require statutes to be

construed in a manner that gives effect to all of their

provisions.” United States ex rel. Eisenstein v. City of

New York, 556 U.S. 928, 933 (2009).

Second, the provision of the statute that insulates

from judicial review “any action or decision by the

Attorney General under [section 1226] regarding the

detention or release of any alien or the grant, revocation, or denial of bond or parole,” 8 U.S.C. § 1226(e),

further reflects that section 1226(c) does not impose a

mandatory detention requirement. Congress’s decision

to make the Attorney General’s determination to detain

or release a qualifying noncitizen pursuant to section

1226—including any decision whether to “take into

custody” a noncitizen pursuant to section 1226(c)(1) or

release any such noncitizen pursuant to section

1226(c)(2)—nonreviewable reflects Congress’s intent

not to impose a mandatory duty here.

Third, section 1226(c) provides only for detention

incident to removal proceedings, but the decision to

bring (or not to bring) removal proceedings as against

any noncitizen is quintessentially a matter of prosecutorial discretion. See Demore v. Kim, 538 U.S. 510, 52728 (2003) (noting that 1226(c) “governs detention of

deportable criminal aliens pending their removal

proceedings”); cf. Matter of Joseph, 22 I. & N. Dec. 799,

807 (BIA 1999) (holding that a noncitizen is not subject

to section 1226(c) if the government is “substantially

unlikely to prevail on its charge [in] the underlying

removal case”); Hernandez Avilez v. Garland, No. 2016142, 2022 WL 4101174, at *10 (9th Cir. Sept. 8, 2022)

(holding that section 1226(c) “applies throughout the

administrative and judicial phases of removal proceedings”). Nothing in section 1226(c) or elsewhere in the

INA requires DHS to institute removal proceedings

against every potentially qualifying noncitizen. Nor do

any of this Court’s prior decisions suggest a contrary

result. 3 To the contrary, “[a] principal feature of the

removal system is the broad discretion exercised by

immigration officials,” who are entrusted with making

the first-order decision as to “whether it makes sense to

pursue removal at all.” Arizona, 567 U.S. at 396. Yet

the mandatory removal of all noncitizens subject to

section 1226(c)(1) is exactly the theory pursued by the

plaintiff States, and exactly what the district court

erroneously interpreted section 1226(c) to require. 4

(J.A. 100, 349.)

3 See, e.g., Johnson v. Guzman Chavez, 141 S. Ct. 2271, 2280

& n.2 (2021) (noting that “[a]liens who are arrested and detained

may generally apply for release on bond or conditional parole,”

except for those who are subject to mandatory detention pursuant

to § 1226(c) (emphasis added)); Nielsen v. Preap, 139 S. Ct. 954,

(2019) (holding that detained noncitizens falling within the categories covered by § 1226(c)(1) were subject to the mandatory

detention requirements of § 1226(c)(2), and thus were not entitled

to bond hearings, even if they were not arrested until well after

their release from criminal confinement); Jennings v. Rodriguez,

138 S. Ct. 830, 846 (2018) (holding that “§ 1226(c) mandates detention pending a decision on whether the alien is to be removed from

the United States” (emphasis added)); Demore, 538 U.S. at 531.

4 In addition, to read into section 1226(c) a mandatory requirement to institute removal proceedings would not only collide with

prosecutorial discretion, but also dramatically exacerbate a significant immigration court backlog. See TRAC Immigration, Immigration Court Backlog Now Growing Faster Than Ever, Burying

Judges in an Avalanche of Cases (Jan. 18, 2022) (internet) (noting

(continues on next page)

Finally, the Guidelines and the supporting

memorandum expressly acknowledge DHS’s strict

compliance with sections 1226(c) and 1231(a) once

removal proceedings have commenced. The memorandum explains that, when a noncitizen subject to section

1226(c)(1) is apprehended, “that noncitizen generally

must remain in custody during the pendency of removal

proceedings unless otherwise eligible for release pursuant to § 1226(c)(2).” (J.A. 160.) Similarly, the memorandum acknowledges that detained noncitizens who are

prohibited from being released under section 1231(a)(2)

“must remain detained for the duration of the removal

period.” (J.A. 160.) Accordingly, the Guidelines exercise

DHS’s discretion to seek removal of qualifying noncitizens in a manner that is entirely consistent with the

requirements imposed by these provisions.

B. The Guidelines Are Consistent

with a Longstanding Tradition

of Prosecutorial Discretion.

General principles of prosecutorial discretion also

weigh against interpreting sections 1226(c) and

1231(a)(1) to impose a mandatory requirement to

apprehend and detain all noncitizens covered by those

provisions in all circumstances, regardless of DHS’s

capacity to do so or the agency’s determination that the

public would be better served by a more-targeted

approach.

that the backlog of cases pending in the immigration courts stood

at approximately 150,000 in 2001, and rose to nearly 1.6 million

by December 2021). (For authorities available on the internet,

URLs are provided in the table of authorities. All sites were last

visited September 19, 2022).

Prosecutorial discretion has been a hallmark of the

Executive’s law enforcement authority since the

Nation’s founding. See, e.g., Peter L. Markowitz, Prosecutorial Discretion Power at Its Zenith: The Power to

Protect Liberty, 97 B.U. L. Rev. 489, 497-503 (2017).

Such discretion has deep roots in the constitutional

separation of powers, as well as the President’s constitutional authority to (among other things) “take Care

that the Laws be faithfully executed,” and to “grant

Reprieves and Pardons for offenses against the United

States.” U.S. Const. art. II, § 3; id. art. II, § 2, cl. 1; see

In re Aiken County, 725 F.3d 255, 263 (D.C. Cir. 2013)

(Kavanaugh, J.).

Historically, the federal executive branch has exercised its prosecutorial discretion not only on an individual, case-by-case basis, see, e.g., Markowitz, supra,

97 B.U. L. Rev. at 497 (describing how “President

George Washington personally directed that numerous

criminal and civil prosecutions be initiated and that

others be halted”), but also at a categorical level, see,

e.g., id. at 502 (describing the federal establishment of

a “Corporate Leniency Policy” that “grant[ed] effective

immunity from criminal prosecution to corporations”

that self-report and take remedial steps regarding

certain criminal activity). And the discretion afforded

the Executive under this principle has historically

extended to both criminal and civil enforcement matters. See, e.g., The Confiscation Cases, 74 U.S. (7 Wall.)

454, 456-57 (1868) (executive branch has discretion

whether to pursue civil-forfeiture enforcement action).

At the administrative level, it has been well settled

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

judicial deference is because courts have properly

recognized that an agency’s enforcement determination

“often involves a complicated balancing of a number of

factors which are peculiarly within its expertise.” Id.

These factors include not only “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.” Id.

Such concerns are equally present at the level of

state criminal and civil enforcement. Courts have

“traditionally viewed the exercise of state officials’

prosecutorial discretion as a valuable feature of our

constitutional system.” Bond v. United States, 572 U.S.

844, 865 (2014). For example, “[p]rosecutorial discretion is basic to the framework of the California criminal

justice system,” Gananian v. Wagstaffe, 199 Cal. App.

4th 1532, 1543 (2011) (quotation marks and emphasis

omitted), so that California courts decline to construe

statutes that use the word “shall” “to foreclose a governmental entity’s or officer’s exercise of discretion,” Morris

v. County of Marin, 18 Cal. 3d 901, 910 (1977). So, too,

in New York, where the law provides that it “shall be

the duty of every district attorney to conduct all prosecutions for crimes and offenses cognizable by the

courts,” N.Y. County Law § 700(1) (emphasis added),

but courts recognize that the district attorney also

retains “wide latitude and discretion to allocate and

utilize both the manpower and resources of his office in

the manner believed to be most effective to the discharge of his duties,” and “need not prosecute every violation or offense,” Murphy ex rel. County of Rensselaer

v. Dwyer, 101 A.D.2d 376, 377-78 (N.Y. App. Div. 1984).

Indeed, many States’ statutory enforcement regimes—

as interpreted by their respective courts—bear similar

characteristics. 5

Against this backdrop, it is of little surprise that

prosecutorial discretion has guided the federal executive branch’s enforcement of the Nation’s immigration

laws for decades. As the district court found below,

“DHS has never apprehended and removed all removable aliens,” much less “all aliens covered in Section

1226(c) or Section 1231(a)(2).” (J.A. 297.) As a result,

and as this Court has observed, enforcement discretion

is “[a] principal feature of the removal system,” includeing as to “whether it makes sense to pursue removal at

all.” Arizona, 567 U.S. at 396. And once removal proceedings are underway, “[a]t each stage the Executive

5 See, e.g., Marshall v. Ellison, 132 Ill. App. 3d 732, 739 (1985)

(holding that “the very nature of law enforcement requires that an

officer have freedom to exercise his discretion,” and interpreting

“shall” in a criminal statute to impose a “directory” rather than

“mandatory” obligation); Cockerham-Ellerbee v. Town of Jonesville, 176 N.C. App. 372, 376 (2006) (“Although the use of the word

‘shall’ in these statutes implies that law enforcement has a mandatory duty to arrest those in violation of a protective order, without

any ability to exercise any discretion such an interpretation is

unreasonable.”); State v. Rice, 174 Wash. 2d 884, 899 (2012)

(“[A]lthough the legislature sometimes speaks in mandatory terms

when authorizing the filing of certain criminal charges, that

language is subject to the legislature’s own general and underlying

acknowledgment of prosecutorial charging discretion.”); Vretenar

v. Hebron, 144 Wis. 655, 665-66 (1988) (noting that the court has

never interpreted the mandatory-seeming “shall” in a criminal

enforcement statute “to limit in any way the prosecuting attorney’s

discretion on whether to prosecute a particular case”). See also

State v. Wheat, 573 S.W.2d 126, 127 (Mo. App. 1978) (“[T]he statute, despite the use of the word ‘shall’ in directing prosecutorial

action, has been interpreted to allow normal prosecutorial discretion in its use.”).

has discretion to abandon the endeavor.” Reno v.

American-Arab Anti-Discrimination Comm., 525 U.S.

471, 483 (1999); see Department of Homeland Sec. v.

Thuraissigiam, 140 S. Ct. 1959, 1983 n.28 (2020) (Alito,

J.) (noting that “the Executive always has discretion

not to remove”). Since 1975, agencies charged with

enforcing immigration laws “have issued a series of

prosecutorial discretion memoranda that set forth basic

guidelines for agency lawyers and agents to follow in

making prosecutorial discretion determinations.”

Markowitz, supra, 97 B.U. L. Rev. at 508.

The Guidelines are properly considered a part of

this longstanding history of prosecutorial discretion.

Although sections 1226(c) and 1231(a) provide that DHS

“shall” detain certain noncitizens, such a “seemingly

mandatory legislative command[]” is—without more—

insufficient to overcome the “deep-rooted nature of lawenforcement discretion.” Town of Castle Rock, 545 U.S.

at 761. Instead, there must be a “stronger indication”

from Congress that “shall” imposes a mandatory duty

and creates a judicially enforceable mandate. See id.;

see also In re Aiken County, 725 F.3d at 263 (“Congress

may not mandate that the President prosecute a certain kind of offense or offender.”). There is no such

indication in sections 1226(c) and 1231(a) or elsewhere

in the INA.

Moreover, interpreting the INA to compel prosecutorial action without a clear statement imposing such a

duty could have implications in other contexts, including state civil and criminal law enforcement. Under the

federal Constitution, “[t]he Executive’s broad prosecutorial discretion and pardon powers” are rooted in part

in “the Constitution’s separation of powers.” In re Aiken

County, 725 F.3d at 264. But any pronouncement about

the federal government’s enforcement obligations in

view of constitutional separation of powers principles

would not necessarily be confined to the federal immigration context. State courts often “rely on federal principles regarding the separation of powers doctrine in

order to interpret [their own respective] constitution’s

stand on this issue.” Carrick v. Locke, 125 Wash. 2d

129, 135 (1994). 6 In any event, respondents offer no

basis in this case to erode bedrock principles of law

enforcement discretion on which federal and state

governments rely.

6 See also Marine Forests Soc’y v. California Coastal Comm’n,

36 Cal. 4th 1, 29 (2005) (“we have looked to federal decisions for

assistance in interpreting our state constitutional separation of

powers doctrine in instances in which there were no fundamental

differences between the relevant constitutional provisions”);

Deegan v. State, 711 N.W.2d 89, 95 (Minn. 2006) (holding that

when interpreting the Minnesota constitution “[a]s a general rule

we favor uniformity with the federal constitution”); Brown v.

Heymann, 62 N.J. 1, 9 (1972) (“There is no indication that our

State Constitution was intended, with respect to the delegation of

legislative power, to depart from the basic concept of distribution

of the powers of government embodied in the Federal Constitution.”); In re Advisory Op. to the Governor, 732 A.2d 55, 110 (R.I.

1999) (opinion of Flanders, J.) (“[O]n the whole, the same separation-of-powers principle is indeed applicable both to federal and

state questions involving legislative appointments to executive

entities.”). See generally G. Alan Tarr, Interpreting the Separation

of Powers in State Constitutions, 59 N.Y.U. Ann. Surv. Am. L. 329,

330 (2003) (noting that “State courts may follow federal precedent

in interpreting state provisions dealing with the structure and

operation of state government, just as they may follow federal

precedent in interpreting state declarations of rights”).

II. The Guidelines Reflect DHS’s Reasoned

Judgment Regarding Prioritization of

Enforcement Resources.

The Guidelines and the accompanying memorandum reflect DHS’s extensive consideration of the potential costs and benefits of its revised prioritization

scheme. Among other things, DHS explains that “a civil

immigration enforcement framework that lacks clear

priorities is likely to increase fear and sow mistrust

between noncitizens and government,” which can

undermine law enforcement priorities and public

health. (J.A. 153.) The memorandum also observes that

the Guidelines promote the use of valuable and limited

resources on “the arrest and removal of individuals who

are threats to public safety,” rather than productive

residents contributing to their communities. (J.A. 154.)

Amici agree that the Guidelines reflect reasoned policy

choices aimed at enhancing public safety, health, and

community stability.

A. The Guidelines Seek to Enhance

Public Safety.

First, the Guidelines’ prioritization of enforcement

efforts “on those who pose a threat to national security,

public safety, and border security” (J.A. 113) is reasonably aimed at identifying dangerous removable noncitizens for enforcement action. Under the previous administration’s policy, enforcement guidance “had the effect

of prioritizing most undocumented immigrants for

removal,” which, due to the lack of agency resources,

meant that enforcement was not meaningfully guided

by any prioritization at all. 7 “Instead, whether someone

7 Nicole Hallett, Rethinking Prosecutorial Discretion in Immi-

gration Enforcement, 42 Cardozo L. Rev. 1765, 1786 (2021).

was slated for removal depended on being in the wrong

place at the wrong time—a kind of random enforcement

that is not tied to priorities at all,” and certainly not to

any effort aimed at identifying the most dangerous

removable noncitizens for enforcement. 8 In fact, the

absence of prioritization under the previous administration’s policies was itself a departure from earlier

approaches that, as the Guidelines do here, prioritized

threats to “national security, public safety, and border

security” in allocating enforcement resources. See

Arizona, 40 F.4th at 382 (describing policies issued in

2011 and 2014).

The Guidelines reflect a rational and well-reasoned

policy determination to prioritize for removal those

noncitizens who are most likely to threaten public

safety. The district court erroneously concluded that

DHS failed to substantiate its reasoning because DHS

relied on recidivism and abscondment statistics that

focused on all noncitizens, and not those “implicated by

the statutes at issue in this litigation: those covered by

Sections 1226(c) and 1231(a)(2).” (J.A. 376.) But implicit

in the district court’s critique is the incorrect assumption that, but for the Guidelines, all of the removable

noncitizens covered by sections 1226(c) and 1231(a)(2)

would be targeted for enforcement by DHS. The pertinent question is whether those noncitizens subject to

enforcement under a standard-less framework are more

likely to recidivate or abscond than those noncitizens

identified as posing the greatest threat to public safety

prioritized for enforcement under the Guidelines. So

framed, the question answers itself.

8 Id. at 1787-88; see, e.g., Hamed Aleaziz & Alejandra ReyesVelarde, Biden Administration Remade ICE After Trump: Will It

Last?, L.A. Times (Aug. 19, 2022) (internet).

In any event, studies have repeatedly shown that

immigrants commit significantly less crime than U.S.born residents. 9 In Texas, for instance, the criminal

conviction rate in 2018 for noncitizens without legal

status was 45 percent lower than the rate for nativeborn Americans. 10 In fact, increased migration often

corresponds with drops in crime rates. 11 For example,

analyses of major cities such as New York, Chicago,

Miami, and El Paso have shown that the rates of violent

crime are lower in areas with more immigrants. 12 This

lower crime rate makes particular sense in the context

of noncitizens, who face more serious consequences

than citizens do (i.e., removal) if they commit a crime.

DHS also reasonably concluded that the clear

enforcement priorities established by the Guidelines

would promote trust and cooperation with law enforcement among immigrant communities and free local law

enforcement agencies to deploy their own limited

resources more effectively. As the accompanying memo-

9 See, e.g., Kristin F. Butcher & Anne Morrison Piehl, Why Are

Immigrants’ Incarceration Rates so Low? Evidence on Selective

Immigration, Deterrence, and Deportation 24 (Nat’l Bureau of

Econ. Rsch., Working Paper No. 13229, 2007) (internet); Ramiro

Martinez Jr. & Matthew T. Lee, On Immigration and Crime, in

1 Criminal Justice 2000, at 485, 514-15 (Gary LaFree ed., 2000)

(internet).

10 Alex Nowrasteh et al., Illegal Immigration and Crime in

Texas 4 (Cato Inst. Working Paper No. 60, 2020) (internet).

11 Chiraag Bains, How Immigrants Make Communities Safer,

The Marshall Project (Feb. 28, 2017) (internet).

12 Id. (citing analyses); see Robert Adelman et al., Urban Crime

Rates and the Changing Face of Immigration: Evidence Across

Four Decades, 15 J. of Ethnicity in Crim. Just. 52, 70 (2017)

(internet) (finding immigrants in urban areas less likely to commit

crime than native-born residents).

randum correctly noted, “civil immigration enforcement activity may have adverse effects on the enforcement of other laws,” as “noncitizen victims and witnesses in criminal investigations” may be less likely to

cooperate with law enforcement if they “are potentially

subject to removal.” (J.A. 148-149.)

In amici’s experience, uncertainty about immigration enforcement leads to substantial decreases in crime

reporting from immigrant communities even during

periods of increased crime. 13 Data from time periods

with clearer federal immigration enforcement priorities reflects that such policies “did not increase crime”

but “rather led to an increase in policing efficiency,

either because [they] allowed police to focus efforts on

solving more serious crimes or because [they] elicited

greater cooperation of non-citizens with police.” 14 The

Guidelines are therefore rationally aimed at promoting

public safety.

B. The Guidelines Promote Public Health

and the Stability of Communities.

The Guidelines also reasonably prioritize enforcement resources away from those noncitizens who benefit their communities. As the supporting memorandum

13 See Lindsey Bever, Hispanics Are ‘Going Further Into the

Shadows’ Amid Chilling Immigration Debate, Police Say, Wash.

Post (May 12, 2017) (internet); Rob Arthur, Latinos in Three Cities

Are Reporting Fewer Crimes Since Trump Took Office, FiveThirtyEight.com (May 18, 2017) (internet); Heidi Glenn, Fear of Deportation Spurs 4 Women to Drop Domestic Abuse Cases in Denver,

Nat’l Pub. Radio (Mar. 21, 2017) (internet).

14 Alberto Ciancio, The Impact of Immigration Policies on Local

Enforcement, Crime and Policing Efficiency vii (2017) (Ph.D.

dissertation, University of Pennsylvania) (internet).

notes, “the grandmothers, clergy, teachers, and farmworkers who have lived and worked in the United

States, contributing to the country without causing

harm, should not be a priority based solely on the fact

that they are removable.” (J.A. 161.)

In this approach, the Guidelines appropriately

recognize that immigrants—including noncitizens—are

a vital and substantial part of our Nation. As of November 2021, 46.2 million people living in the United States

were born in another country. 15 This large immigrant

population is unsurprising given that more individuals

choose to migrate to the United States than to any

other country. 16 Amici in particular are home to some

of the largest immigrant populations—amounting to

nearly 24 million immigrant residents. 17 Immigrants

enrich their communities, including the amici States,

in a variety of ways. And it is amici States’ experience

that noncitizens—including many of those who are or

may become removable for one reason or another—

benefit their communities in the same ways.

For one, immigrants play a critical role in fueling

and sustaining state economies. Every year, immigrants contribute hundreds of billions of dollars in

15 Steven A. Camarota & Karen Zeigler, Ctr. for Immgr.

Studies, Immigration Population Hits Record 46.2 Million in

November 2021 (Dec. 20, 2021) (internet).

16 See U.N. Dep’t of Econ. & Soc. Affairs, Population Div.,

International Migration 2020: Highlights 10 (2020) (internet).

17 See Am. Immigration Council, Map the Impact of Immigration (n.d.) (internet) (filtered by State).

taxes and consumer spending. 18 This includes removable noncitizens who are authorized to work in the

United States, as they must pay taxes on income generated here. 19 Immigrants also start businesses that

generate billions of dollars in revenue. 20 For example,

the most recent data available shows that in 2019,

immigrant-led households in New York paid $37.9

billion in federal taxes and $23.5 billion in state and

local taxes, of which $2.2 billion and $1.4 billion were

paid by undocumented immigrants. 21 That same year,

immigrants in New York had $130.1 billion to spend as

consumers (of which $22.8 billion were held by undocumented immigrants and generated $7.3 billion in business income). 22 Additionally, a significant percentage of

immigrants work in industries that are important to

state economies and communities, including farming,

18 See U.S. Congress, Joint Econ. Comm., Immigrants are Vital

to the U.S. Economy 5 (Apr. 6, 2021) (internet) (in 2019, immigrants paid $492 billion in state, local, and federal taxes and

wielded $1.3 trillion in spending power).

19 See U.S. Internal Revenue Serv., Taxation of Nonresident

Aliens (last updated June 2, 2022) (internet); U.S. Internal

Revenue Serv., Aliens Employed in the U.S. – Social Security Taxes

(last updated Aug. 17, 2022) (internet). Certain classes of otherwise removable aliens may obtain employment authorization. See,

e.g., 8 C.F.R. § 274a.12(a)(10)-(11), (c)(14), (c)(18). In 2018, approximately 15 percent of unauthorized immigrants had a temporary

status or deferral of deportation with work authorization. Randy

Capps et al., Migration Pol’y Inst., Fact Sheet, Unauthorized Immigrants in the United States: Stable Numbers, Changing Origins 2

(Dec. 2020) (internet).

20 Am. Immigr. Council, Fact Sheet, Immigrants in the United

States 5 (Sept. 21, 2021) (internet) (in 2019, immigrants generated

$86.3 billion in business revenue).

21 New Am. Econ., New York Archives (n.d.) (internet).

22 Id.

cleaning and maintenance, and home health care. 23

This economic impact has remained true during the

COVID-19 pandemic, with immigrants disproportionately putting their lives at risk by working at high rates

in essential sectors. 24 Immigrants also fill gaps in the

labor market by taking low-wage jobs that U.S.-born

workers often decline and by moving around the country to work in markets experiencing labor shortages. 25

In addition to participating in the labor force,

immigrants create jobs for U.S.-born workers by starting businesses. Studies have found that immigrants

are more likely than U.S.-born individuals to start

businesses, and that they “act more as ‘job creators’

than ‘job takers.’” 26 In 2019 alone, more than 3.2 million

immigrants nationwide operated their own businesses. 27 And, according to a 2019 report, immigrants

23 Arloc Sherman, et al., Ctr. on Budget & Pol’y Priorities,

Immigrants Contribute Greatly to U.S. Economy, Despite

Administration’s “Public Charge” Rule Rationale (Aug. 15, 2019)

(internet).

24 Giovanni Peri & Justin C. Wiltshire, Univ. of Cal. Davis,

Glob. Migration Ctr., The Role of Immigrants as Essential Workers

During the Covid-19 Pandemic (last updated Apr. 27, 2020)

(internet).

25 See Jenny Minier, Univ. of Ky. Ctr. for Equality & Soc. Just.,

Immigrants Benefit the Community and Economy (Sept. 2017)

(internet); Pia Orrenius, Benefits of Immigration Outweigh the

Costs, The Catalyst, issue 2 (George W. Bush Inst. Spring 2016)

(internet).

26 E.g., Pierre Azoulay, et al., Immigration and Entrepreneurship in the United States (Nat’l Bureau of Econ. Rsch., Working Paper No. 27778, 2020) (internet); see Am. Immigr. Council,

Fact Sheet, Value Added: Immigrants Create Jobs and Businesses,

Boost Wages of Native-Born Workers (Jan. 1, 2012) (internet).

27 New Am. Econ., Immigrants and the Economy in the United

States of America (n.d.) (internet).

owned nearly half of the small businesses in New York

City, employed nearly half a million New Yorkers, and

contributed $195 billion to the city’s gross domestic

product. 28 The Guidelines deprioritize enforcement

against those noncitizens who are less likely to pose

threats to public safety, and thus more likely to play

the productive roles in society reflected by this data.

The Guidelines also reasonably account for mitigating factors designed to ensure that noncitizens’ ties to

family members and the community are considered as

part of the exercise of enforcement discretion. For

example, some of the “mitigating factors that militate

in favor of declining enforcement action” include “the

impact of removal on family in the United States, such

as loss of provider or caregiver,” and “military or other

public service of the noncitizen or their immediate

family.” (J.A. 114.)

In so doing, the Guidelines correctly recognize that

noncitizens have deep familial and social ties to the

United States. As of 2018, about 1.6 million unauthorized immigrants were married to U.S. citizens and

another 675,000 were married to lawful permanent

residents. 29 Over 4 million U.S.-citizen children had at

least one unauthorized immigrant parent, as did

100,000 nonimmigrant or legal permanent resident

children. 30 Removal of individuals from these households could have devastating economic and social

28 Ass’n for Neighborhood & Hous. Dev., The Forgotten

Tenants: New York City’s Immigrant Small Business Owners 3

(2019) (internet).

29 See Capps et al., supra, at 2.

30 Id.

impacts on the individuals’ families and the communities in which they live. Removing these individuals

could also force States and local governments to provide

services and other economic assistance to the families

of detained or removed family members.

As noted above, the Guidelines do not require individual immigration officers to give dispositive weight to

any of these factors and do not otherwise direct an

outcome in any given case. Instead, the Guidelines are

intended to inform the decision-making of individual

officers and do so through reasoned and appropriate

policy judgments about law enforcement priorities.

CONCLUSION

The judgment of the U.S. District Court for the

Southern District of Texas should be reversed.

Respectfully submitted,

ROB BONTA

Attorney General

State of California

MICHAEL MONGAN

Solicitor General

HELEN H. HONG

Deputy Solicitor General

JAMES F. ZAHRADKA II

Supervising Deputy

Attorney General

CHRISTOPHER PAUL

KAILANI MEDEIROS

Deputy Attorneys General

LETITIA JAMES

Attorney General

State of New York

BARBARA D. UNDERWOOD*

Solicitor General

ESTER MURDUKHAYEVA

Deputy Solicitor General

ANDREA W. TRENTO

Assistant Solicitor General

September 2022

* Counsel of Record

barbara.underwood@ag.ny.gov

(Counsel listing continues on next page.)

WILLIAM TONG

Attorney General

State of Connecticut

165 Capital Ave.

Hartford, CT 06106

KATHLEEN JENNINGS

Attorney General

State of Delaware

820 N. French St.

Wilmington, DE 19801

KWAME RAOUL

Attorney General

State of Illinois

100 West Randolph St.

Chicago, IL 60601

AARON M. FREY

Attorney General

State of Maine

KEITH ELLISON

Attorney General

State of Minnesota

75 Rev. Dr. Martin Luther

King Jr. Blvd.

St. Paul, MN 55155

AARON D. FORD

Attorney General

State of Nevada

100 North Carson St.

Carson City, NV 89701

MATTHEW J. PLATKIN

Acting Attorney General

State of New Jersey

25 Market St.

Trenton, NJ 08625

HECTOR BALDERAS

6 State House Station

Augusta, ME 04333

Attorney General

State of New Mexico

P.O. Drawer 1508

Santa Fe, NM 87504

BRIAN E. FROSH

Attorney General

State of Maryland

ELLEN F. ROSENBLUM

Attorney General

State of Oregon

200 Saint Paul Pl.

Baltimore, MD 21202

1162 Court St. N.E.

Salem, OR 97301

MAURA HEALEY

PETER F. NERONHA

Attorney General

State of Rhode Island

150 S. Main St.

Providence, RI 02903

Attorney General

Commonwealth of

Massachusetts

One Ashburton Pl.

Boston, MA 02108

(Counsel listing continues on next page.)

SUSANNE R. YOUNG

Attorney General

State of Vermont

KARL A. RACINE

Attorney General

District of Columbia

109 State St.

Montpelier, VT 05609

400 6th St., NW

Washington, D.C. 20001

ROBERT W. FERGUSON

Attorney General

State of Washington

P.O. Box 40100

Olympia, WA 98504

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.