State of Texas v. United States

Case: 22-40367 Document: 00516384389 Page: 1 Date Filed: 07/06/2022
United States Court of Appeals
for the Fifth Circuit United States Court of Appeals
Fifth Circuit
FILED
July 6, 2022
No. 22-40367 Lyle W. Cayce
Clerk
State of Texas; State of Louisiana,
Plaintiffs—Appellees,
versus
United States of America; Alejandro Mayorkas,
Secretary, U.S. Department of Homeland Security;
United States Department of Homeland Security; Troy
Miller, Senior Official Performing the Duties of the
Commissioner of U.S. Customs and Border Protection,
in his official capacity; United States Customs and
Border Protection; Tae D. Johnson, Acting Director,
U.S. Immigration and Customs Enforcement, in his
official capacity; United States Immigration and
Customs Enforcement; Tracy Renaud, Senior Official
Performing the Duties of the Director of the U.S.
Citizenship and Immigration Services, in her official
capacity; U.S. Citizenship and Immigration Services,
Defendants—Appellants.
Appeal from the United States District Court
for the Southern District of Texas
USDC No. 6:21-CV-16
Before Jones, Clement, and Engelhardt, Circuit Judges.
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Per Curiam:
Before the court is the Department of Homeland Security’s (“DHS”)
request to stay the district court’s vacatur of a new immigration rule that
radically reduces the federal government’s detention of those who are
statutorily required to be removed post-haste. The district court determined
that the rule conflicts with federal statutes, is arbitrary and capricious, and
that its promulgation was procedurally invalid. We are inclined to agree.
Because DHS fails to make a strong showing of likelihood of success on
appeal, the motion for a stay pending appeal is DENIED. We distinguish this
case from a recent decision by the Sixth Circuit, authorizing a stay pending
appeal, based on differing precedent and the benefit of a complete trial
record.
BACKGROUND
Federal immigration law provides that the Attorney General “shall
take into custody,” “shall detain,” and “shall remove” aliens convicted of
certain enumerated crimes and aliens who have become subject to final
orders of removal. 8 U.S.C. §§ 1226(c)(1), 1231(a)(2), 1231(a)(1)(A). Under
the current Presidential Administration, to “implement” these provisions,
the Department of Homeland Security (“DHS”) has outlined new
immigration “guidance for the apprehension and removal of noncitizens” in
a series of memoranda. The first memorandum was circulated in January
2021, when then-Acting Secretary of Homeland Security David Pekoske
purported to “announce[] substantial changes to the enforcement of the
Nation’s immigration laws,” including the establishment of certain
enforcement priorities. The approved enforcement priorities entailed
national security, public safety, and border security. What made this
memorandum controversial was that each of these categories was narrowly
defined to address certain threats but exclude others enumerated in the
federal statutes. For example, DHS required Immigration and Customs
Enforcement (“ICE”) agents to prioritize the enforcement of aliens who
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committed aggravated felonies, but not other deportable aliens with final
orders of removal or who trafficked controlled substances, participated in the
commercialized sex industry, trafficked humans, were convicted of certain
firearm offenses, among others. Effective enforcement in this context would
mean that ICE agents could apprehend aliens with certain criminal
convictions or aliens who have final removal orders and detain them for
speedy processing toward removal. But the first memorandum basically
ignored the legal requirement of detention, and therefore the likelihood of
removal, for those not “prioritized.”
In February, Acting ICE Director Tae Johnson issued a second
memorandum, reiterating the same three narrowly-focused categories. That
memorandum added a requirement that enforcement agents obtain
“preapproval” from their superior offices for any enforcement action against
criminal aliens that did not fall within the three priorities. Both the January
and February memoranda were labelled interim measures and were intended
to guide immigration officials “until Secretary Mayorkas issues new
enforcement guidelines.”
On September 30, 2021, the Secretary of Homeland Security
Alejandro Mayorkas issued a third and final memorandum (“Final Memo”).
Notably, it is agreed that the Final Memo is an agency rule under the
Administrative Procedure Act, 5 U.S.C. § 551(4). The Final Memo
“serve[d] to rescind the January and February Memoranda.” It re-
articulated the same three enforcement priorities, but, unlike the prior
memos, it did not “presumptively subject [the priorities] to enforcement
action.” Instead, before ICE officers may arrest and detain aliens as a threat
to public safety, they are now required to conduct “an assessment of the
individual and the totality of facts and circumstances,” including various
aggravating or mitigating factors. Immigration enforcement personnel are
prohibited from “rely[ing] on the fact of conviction . . . alone,” no matter
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how serious. Similarly, enforcement personnel “should evaluate the totality
of the facts and circumstances” before determining whether an alien who is
otherwise a threat to border security ought to be subject to enforcement.
Not only did the Final Memo engrave these three priorities into
immigration enforcement, but it also specified procedures to ensure
agency-wide compliance. Specifically, the Final Memo required
“[e]xtensive” and “continuous” training, and the implementation of a
“rigorous review” process of all enforcement decisions. According to the
memo, DHS would also “need to collect detailed, precise, and
comprehensive data as to every aspect of the enforcement actions [] take[n]
pursuant to th[e] guidance, both to ensure the quality and integrity of [the]
work and to achieve accountability for it.” Notably, the Final Memo
establishes a “fair and equitable case review process to afford noncitizens and
their representatives the opportunity to obtain expeditious review of the
enforcement actions taken.” In other words, according to the Final Memo,
those whom the law designates as aliens are granted an entirely new avenue
of redress in the event they are removed or detained in a manner that conflicts
with the guidance. The Final Memo was circulated along with a second
memo titled “Significant Considerations in Developing Updated Guidelines
for the Enforcement of Civil Immigration Law” (“Considerations Memo”),
which summarized the key aspects of the Final Memo. The Considerations
Memo further purported to provide insight into DHS’s reasoning for issuing
the Final Memo.
The district court found that these regulatory actions, culminating in
the Final Memo, have had measurable effects on immigration enforcement.
This is particularly true in Texas, where, from 2017 to 2020 (i.e., before any
of the memoranda were issued) ICE agents rescinded no more than a dozen
criminal detainers annually. Yet the district court found that from January
20, 2021 through February 15, 2022, detainers for 170 criminal aliens were
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rescinded in Texas. 1 At least seventeen of those aliens failed to comply with
their parole conditions, four have committed new crimes, and at least one
remains at large in Texas with a warrant out for his arrest. 2 At least fifteen of
the detainers were rescinded after the Final Memo became effective. One
alien who was initially subject to a final order of removal was instead released
to the public in Texas after his detainer was rescinded. The marked increase
in rescinded detainers of criminal aliens has led the Texas Department of
Criminal Justice (“TDCJ”) to update its inmate-tracking system to record
any rescinded detainers, a feature that was previously unnecessary due to the
infrequency at which this occurred. According to data from 2019, DHS
previously acknowledged that criminal aliens recidivated at an average rate
of four criminal arrests/convictions per alien.
Texas and Louisiana filed suit, challenging the legality of the Final
Memo on the basis that it is contrary to federal law, arbitrary and capricious,
and procedurally invalid. 3 The States argued that DHS’s issuance of the
Final Memo conflicts with 8 U.S.C. §§ 1226(c) and 1231(a), both of which
provide that the Attorney General “shall” detain or remove an alien who
1
Detainers were reissued for 29 of these criminal aliens.
2
Similarly, one of the criminal aliens in Louisiana was convicted of indecent
behavior with juveniles and sexual battery, yet his detainer was rescinded, and he was
released subject to supervised release.
3
The States initially filed suit against the January and February Memos, before the
Final Memo was even issued. The district court issued a preliminary injunction, enjoining
enforcement of both memos. Texas v. United States, 555 F. Supp. 3d 351 (S.D. Tex. 2021).
A panel of this court initially stayed the injunction, Texas v. United States, 14 F.4th 332, 334
(5th Cir. 2021), but the en banc court voted to vacate that decision. Texas v. United States,
24 F.4th 407, 408 (5th Cir. 2021) (en banc). During these appellate proceedings, the Final
Memo was issued, thus “rescind[ing] the January and February Memoranda.”
Accordingly, at DHS’s request, this court dismissed the appeal. Texas v. United States,
No. 21-40618, 2022 WL 517281, at *1 (5th Cir. Feb. 11, 2022). The States then amended
their complaint to challenge the Final Memo.
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committed certain crimes or who is subject to an order of removal,
respectively. Because the Final Memo prohibits these statutorily mandated
detentions and removals absent a thorough “review [of] the entire criminal
and administrative record” in order to ascertain the “totality of the facts and
circumstances of the conduct at issue,” the States contended that the rule
cannot stand, and they thus sought injunctive relief. The district court
consolidated the preliminary injunction motion with a two-day bench trial.
In an exhaustive opinion, the court agreed with the States’ positions on all
three issues and vacated the Final Memo. He stayed the effect of the vacatur
briefly to allow DHS to seek appellate review. Defendants expeditiously
moved this court to stay the vacatur order pending appeal.
STANDARD OF REVIEW
When asked to consider whether to grant a stay, this court determines
“(1) whether the applicant has made a strong showing of likelihood to suc-
ceed on the merits; (2) whether the movant will be irreparably harmed absent
a stay; (3) whether issuance of a stay will substantially injure other interested
parties; and (4) where the public interest lies.” Thomas v. Bryant, 919 F.3d
298, 303 (5th Cir. 2019). DHS’s burden is a substantial one, as a stay is “an
extraordinary remedy” and it is “an equitable one committed to this court’s
discretion.” Id. The district court’s findings of fact are reviewed for clear
error and its legal conclusions de novo. Coe v. Chesapeake Expl., L.L.C., 695
F.3d 311, 316 (5th Cir. 2012).
DISCUSSION
DHS defends its rule and challenges the district court’s decision by
invoking a plethora of theories. Based on the following discussion, it is likely
that the district court’s opinion evinces no reversible error of fact or law, nor
any abuse of discretion. We begin with DHS’s multiple justiciability
challenges before proceeding to the merits.
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I. Standing
DHS contends that the States lack standing to challenge the Final
Memo because any purported injury is speculative, unsupported by the
evidence, not fairly traceable to the Final Memo, and not redressable in
federal court. We disagree.
The States must establish by a preponderance of the evidence “an
injury that is ‘concrete, particularized, and actual or imminent; fairly
traceable to the challenged action; and redressable by a favorable ruling.’”
Texas v. United States, 809 F.3d 134, 150 (5th Cir. 2015) (“Texas DAPA”)
(quoting Clapper v. Amnesty Int’l USA, 568 U.S. 398, 409, 133 S. Ct. 1138,
1147 (2013)). It is only necessary that one state have standing, so we, like
the district court, analyze Texas’s standing. Massachusetts v. E.P.A., 549 U.S.
497, 518, 127 S. Ct. 1438, 1453 (2007). Notably, “[s]tates are not normal
litigants for the purposes of invoking federal jurisdiction.” Id. at 518,
127 S. Ct. at 1454. And here, Texas is entitled to “special solicitude,” 4 which
means imminence and redressability are easier to establish here than usual.
4
To be entitled to “special solicitude,” (1) the State must have a procedural right
to challenge the action in question, and (2) the challenged action must affect one of the
State’s quasi-sovereign interests. Massachusetts v. E.P.A., 549 U.S. 497, 517–19, 127 S. Ct.
1438, 1453–54 (2007). Texas satisfies the first requirement by asserting a procedural right
under the APA to challenge the legality of agency action. Texas DAPA, 809 F.3d at 151.
Regarding the second prong, Texas seeks to defend its quasi-sovereign “interest in the
enforcement of immigration law.”
DHS challenges the conclusion that such an interest entitles Texas to special
solicitude, contending that the state’s purported interests amount to no more than the
vindication of “policy disagreements.” This is not so. States “bear[] many of the
consequences of unlawful immigration.” Arizona v. United States, 567 U.S. 387, 397,
132 S. Ct. 2492, 2500 (2012). And “[t]he pervasiveness of federal regulation does not
diminish the importance of immigration policy to the States.” Id. at 397–98, 132 S. Ct. at
2500. “When a State enters the Union, it surrenders certain sovereign prerogatives,”
Massachusetts, 549 U.S. at 519, 127 S. Ct. at 1454, such as the right to control immigration
policy and enforcement. “These sovereign prerogatives are now lodged in the Federal
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A. Injury
Texas’s injuries as a result of the Final Memo are difficult to deny,
specifically its financial injury and harm as parens patriae. First, the
uncontroverted evidence shows that the Final Memo shifted the cost of
incarcerating or paroling certain criminal aliens from DHS to Texas.
Specifically, the TDCJ incurs costs to keep aliens in custody or add them to
parole or mandatory supervision programs when those aliens are not detained
or removed by federal immigration authorities. The district court found that,
for Fiscal Year 2020, the cost of these programs for inmates not detained or
removed was $11,068,994. Additionally, the Tarrant County Sherriff
estimated that the average cost of jailing inmates with immigration detainers
amounted to $3,644,442 per year. DHS does not contest these findings.
Second, and perhaps most importantly, the state incurs substantial
costs associated with criminal recidivism, the rate of which is significant
among the illegal alien population according to evidence presented in the
district court. The district court found that, as of January 2022, Tarrant
County housed 145 inmates with immigration detainers and that, based on
the criminal-history of these inmates, the recidivism rate was 90% for that
population. In October 2021, the recidivism rate for the inmates with
immigration detainers was 69%. Furthermore, DHS conceded that historical
data demonstrated that criminal aliens recidivated at an average rate of four
criminal arrests/convictions per alien. Again, DHS does not meaningfully
Government,” and such forfeited rights are precisely the quasi-sovereign rights that entitle
a state to special solicitude. Id. at 519–20. See also Alfred L. Snapp & Son, Inc. v. Puerto
Rico, ex rel., Barez, 458 U.S. 592, 607, 102 S. Ct. 3260, 3269 (1982) (“[A] State has a quasi-
sovereign interest in the health and well-being—both physical and economic—of its
residents in general.”).
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dispute these findings or the conclusion that recidivism is a serious problem
among the criminal alien population.
Third, the district court further found Texas has actually absorbed, or
at least will imminently absorb, the costs of providing public education and
state-sponsored healthcare to aliens who would otherwise have been
removed pursuant to federal statutory law. And “an increase in the number
of aliens in Texas, many of whom” will create costs for the States, is
sufficient to establish standing. Texas v. Biden, 10 F.4th 538, 547 (5th Cir.
2021). This court recognized that Texas suffers constitutional injury where
an increase in the number of aliens would cause the state to incur significant
costs in issuing additional driver’s licenses. Texas DAPA, 809 F.3d at 155–
56. Similar logic extends to Texas’s obligation to subsidize these additional
aliens’ healthcare and education costs.
DHS raises a number of conclusory challenges to some of these fact
findings, none of which come close to sustaining “clear error.” It first asserts
that the Final Memo does not compel a decrease in enforcement, but rather
merely encourages prioritized enforcement against the most dangerous
aliens. Underlying this claim is the assumption that the Final Memo only
reconfigured the agency’s priorities due to its scarce resources 5 without
5
The district court found that DHS’s reliance on the excuse of “insufficient
resources and limited detention capacity” was not in good faith. While complaining that
Congress has not provided sufficient resources to detain aliens as required by law, DHS
simultaneously submitted “two budget requests [for 2023] in which it ask[ed] Congress to
cut [its] resources and capacity by 26%.” Additionally, since 2021, DHS has “persistently
underutilized existing detention facilities.” We further note the oddity that DHS
emphasizes “limited resources” as its main defense of a rule that increases the complexity
of its purportedly already-overwhelmed agents’ jobs. For example, the Final Memo
instructs that, before pursuing enforcement, personnel should, “to the fullest extent
possible, obtain and review the entire criminal and administrative record and other
investigative information to learn of the totality of the facts and circumstances of the
conduct at issue.” But prior to the Final Memo, personnel could simply rely on an order
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implicating enforcement levels. But the uncontroverted detainer data plainly
contradict this assertion. DHS does not explain why the average daily
number of criminal aliens in the United States’ custody dropped following
the January Memo, and continues decreasing into 2022 under the Final
Memo, let alone successfully show that the district court’s findings on this
matter were clearly erroneous. 6
of removal or a qualifying criminal conviction. As the district court observed, DHS is “in
effect . . . making it harder to comply with the statutory mandate it complains it doesn’t
have the resources to comply with.”
6
DHS complains that the district court “ignor[ed] data from ICE and U.S.
Customs and Border Protection [] that confirms that the government has devoted
significant enforcement resources to such border enforcement,” referencing various
statistics showing an increase in arrests and expulsions year-over-year. It also cites
testimony from one of its employees claiming that, in the first 180 days of implementation
of the Final Memo, the percentage of enforcement actions involving noncitizens increased
as compared to the same time frame in fiscal year 2020. But any increase is less likely
explained by the diligent enforcement efforts of this administration and more likely
explained by the unprecedented surge of illegal aliens pouring over the border in record
numbers. See Amicus Curiae Brief of Arizona, Alabama, Arkansas, Florida, Georgia,
Indiana, Kansas, Kentucky, Mississippi, Missouri, Montana, Nebraska, Ohio, Oklahoma,
South Carolina, West Virginia, and Wyoming at 2–3. Given that the number of encounters
with illegal border-crossers is ten times what it was in April 2020, see id., an increase in
arrests and expulsions is far from impressive, especially if amici are correct that roughly
three-fourths of the illegal aliens that cross the border go undetected by DHS entirely. Id.
at 5. Nevertheless, for purposes of standing, the inquiry is whether the Final Memo caused
Texas to have to incur additional financial, law enforcement, and welfare costs, not whether
there were generally more enforcement actions year-over-year in the midst of a historic
immigration crisis.
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Rather, the data show that the Final Memo “increases the number of aliens
with criminal convictions and aliens with final orders of removal released into
the United States,” and Texas has shown by a preponderance of the evidence
that the cost of that reality has fallen on it and will continue to do so. 7
B. Traceability
Nor does this case present a traceability problem. The district court
found that, when ICE rescinds a detainer for a criminal inmate in TDCJ
custody, those rescissions directly caused the Texas Board of Pardons and
Paroles to revoke parole for certain aliens who were previously approved for
7
DHS also baldly asserts that the district court’s reliance on the “general statistics
in the record” constituted “unwarranted speculation.” It counters that the guidance
merely focuses resources on the aliens who pose the greatest threat. But such conclusory
assertions mean little in light of the evidence illustrating a concerning decline in overall
enforcement, and DHS fails to counter or discredit any of those statistics other than by
expressing its general disagreement.
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parole and, accordingly, those criminal aliens remain in Texas’s custody. For
others, the district court found that the detainer rescissions caused an
increase in the number of criminal aliens and aliens with final orders of
removal to be released into Texas. Consequently, some immigrants who,
according to the statutes, are required to be detained and deported will
certainly seek healthcare services from the State as well as educational
services. Thus, Texas is left with few alternatives regarding what to do with
these “de-prioritized” aliens otherwise subject to mandatory detention—
continue to incarcerate those with criminal convictions, or supervise them
rigorously, or provide state-sponsored healthcare and educational services to
the releasees. Texas has sufficiently established that these harms are
presently or imminently traceable to the Final Memo.
C. Redressability
Similarly unavailing is DHS’s contention that Texas’s injuries are not
redressable because “resource limitations preclude DHS from enforcing the
INA against all noncitizens.” The district court’s vacatur does not need to
operate on all aliens in Texas who are eligible for speedy removal. A court
order need only alleviate some of the state’s asserted harms. Sanchez v.
R.G.L., 761 F.3d 495, 506 (5th Cir. 2014) (“When establishing redressability,
a plaintiff need only show that a favorable ruling could potentially lessen its
injury; it need not definitively demonstrate that a victory would completely
remedy the harm.” (internal quotation marks omitted)). Texas’s costs
would be eased if DHS stopped rescinding detainers pursuant to the Final
Memo, and thus vacating the Final Memo would naturally redress Texas’s
harm to a meaningful degree.
II. Reviewability
DHS next articulates several theories that purport to deprive the
federal courts of the power to adjudicate the merits. First, it suggests, for the
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first time on appeal, that 8 U.S.C. § 1252(f)(1) deprives the district court of
jurisdiction to vacate the guidance. Second, it contends that the Final Memo
does not constitute final agency action, thus rendering it unreviewable by the
federal courts. Third, it asserts that the Final Memo represents decisions that
are committed to DHS’s discretion by law. Finally, it suggests that the States
fall outside of the INA’s “zone of interests.” Each point is likely to fail.
A. Section 1252(f)(1)
Section 1252(f)(1) strips the federal courts (other than the Supreme
Court) of jurisdiction to “enjoin or restrain the operation of” §§ 1221–1232
of the INA. The Supreme Court recently clarified that § 1252(f)(1)
“generally prohibits lower courts from entering injunctions that order federal
officials to take or to refrain from taking actions to enforce, implement, or
otherwise carry out the specified statutory provisions.” Garland v. Aleman
Gonzalez, No. 20-322, slip op. at 5 (U.S. June 13, 2022). There, the Court
interpreted § 1252(f)(1) to prevent a class of aliens who were detained
pursuant to 8 U.S.C. § 1231(a)(6) from obtaining class wide injunctive relief.
Id. at 2, 4. The Court held that the ordinary meaning of the statute “bars the
class-wide relief” sought. Id. at 4. DHS suggests that this holding applies
“with equal force to vacatur,” because such a vacatur “prohibits” DHS from
implementing the Final Memo and de facto “enjoin[s] or restrain[s]” the
agency’s enforcement decisions.
But DHS reads too much into the Aleman Gonzalez opinion. There
are meaningful differences between an injunction, which is a “drastic and
extraordinary remedy,” and vacatur, which is “a less drastic remedy.”
Monsanto Co. v. Geertson Seed Farms, 561 U.S. 139, 165, 130 S. Ct. 2743, 2761
(2010). The Supreme Court has indicated that § 1252(f) is to be interpreted
relatively narrowly. Indeed, the Court described § 1252(f) as “nothing more
or less than a limit on injunctive relief.” Reno v. Am.-Arab Anti-
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Discrimination Comm., 525 U.S. 471, 481, 119 S. Ct 936, 942 (1999). And
again, in a recent opinion, the Supreme Court reiterated this sentiment and
additionally noted that the title of the provision—“Limit on injunctive
relief”—clarified the “narrowness of its scope.” See Biden v. Texas, No. 21-
954, slip op. at *9, 12 (U.S. June 30, 2022) (“Texas MPP”). Extending
Aleman Gonzalez to vacatur is particularly dubious in light of the Court’s
caveats.
Additionally, a vacatur does nothing but re-establish the status quo
absent the unlawful agency action. Apart from the constitutional or statutory
basis on which the court invalidated an agency action, vacatur neither
compels nor restrains further agency decision-making. We decline to extend
Aleman Gonzalez to such judicial orders, especially when doing so would be
contrary to the “strong presumption favoring judicial review of
administrative action.” 8 Salinas v. U.S. R.R. Ret. Bd., 141 S. Ct. 691, 698
(2021). DHS is unlikely to demonstrate that this provision strips federal
court jurisdiction to vacate unlawful agency action.
B. Final Agency Action
Judicial review is available for “final agency action for which there is
no other adequate remedy in a court.” 5 U.S.C. § 704. “The Supreme Court
has long taken a pragmatic approach to finality, viewing the APA’s finality
requirement as flexible.” Texas v. EEOC, 933 F.3d 433, 441 (5th Cir. 2019)
(internal quotation marks omitted). To be “final,” (1) the action must
“mark the consummation of the agency’s decisionmaking process” and “it
must not be of a merely tentative or interlocutory nature;” additionally, (2) it
8
Not to mention the fact that the Supreme Court has previously affirmed the
vacatur of DHS’s recission of the Deferred Action for Childhood Arrivals program. Dep’t
of Homeland Sec. v. Regents of the Univ. of Cal., 140 S. Ct. 1891, 1916 (2020).
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must “be one by which rights or obligations have been determined, or from
which legal consequences will flow.” Bennett v. Spear, 520 U.S. 154, 177–78,
117 S. Ct. 1154, 1168–69 (1997) (internal quotation marks and citation
omitted). DHS does not dispute that its Final Memo was the
“consummation of the agency’s decisionmaking process,” only that the
memo entailed no legal consequences and created no rights or obligations.
Agency action satisfies the second requirement of Bennett “if it either
appears on its face to be binding or is applied by the agency in a way that
indicates it is binding.” EEOC, 933 F.3d at 441. Importantly here, the
withdrawal of previously articulated discretion is an action that “alters the
legal regime, binds the entity, and thus qualifies as final agency action.” Id.
(internal quotation marks omitted). Such a “withdrawal of discretion
distinguishes a policy statement—which leaves the agency the discretion and
the authority to change its position in any specific case and does not seek to
impose or elaborate or interpret a legal norm—from a final agency action.”
Id. (internal quotation marks omitted).
DHS asserts that the guidance in no way binds enforcement agents
and their superiors, but “simply ensures that discretion is exercised in an
informed way.” As the district court explained, the record plainly belies that
assertion.
First, ICE officers previously possessed the discretion to arrest and
detain aliens on the basis of a qualifying conviction or a final order of removal
alone, subject to mandatory statutory dictates. But the Final Memo
withdraws this discretion completely by prohibiting them to rely solely on a
statutorily qualifying conviction or removal order. It asserts: “The fact an
individual is a removable noncitizen therefore should not alone be the basis
of an enforcement action against them;” and DHS “personnel should not
rely on the fact of conviction or the result of a database search alone.” This
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withdrawal of discretion is reinforced by compulsory language used
throughout the Final Memo (i.e., “Again, our personnel must evaluate the
individual and the totality of the facts and circumstances and exercise their
judgment accordingly;” “Whether a noncitizen poses a current threat to
public safety is not to be determined according to bright lines or categories;”
“Agency leaders as to whom this guidance is relevant to their operations will
implement this guidance accordingly.”).
Second, the Final Memo implements various mechanisms to ensure
compliance, including “[e]xtensive training materials and a continuous
training program” in order to “ensure the successful application of this
guidance.” Additionally, all enforcement decisions are subject to “rigorous
review” during the first ninety days of implementation in order “to achieve
quality and consistency in decision-making across the entire agency.” After
the ninety days, “[l]onger-term review processes should be put in
place . . . drawing on lessons learned,” and “[a]ssessment of implementation
of this guidance should be continuous.” Accordingly, not only will ICE agents
be subject to “extensive” training on this guidance, but they will also have
superiors looking over their shoulders to ensure their compliance. Moreover,
the Final Memo now mandates the collection of “detailed, precise, and
comprehensive data as to every aspect of the enforcement actions [] take[n]
pursuant to th[e] guidance, both to ensure the quality and integrity of [the]
work and to achieve accountability for it.”
Third, other evidence confirms the Final Memo’s binding effect on
immigration enforcement. The Considerations Memo, circulated
contemporaneously with the Final Memo, asserted that “the new guidelines
will require the workforce to engage in an assessment of each individual case
and make a case-by-case assessment as to whether the individual poses a
public safety threat, guided by a consideration of aggravating and mitigating
factors.” When agents take an enforcement action, they must report it in a
16
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database and select which of the three priorities characterizes their actions.
The database makes clear that, besides the three priority categories, “‘Other’
Priority is no longer an option.” Agents must also certify that they have
faithfully considered “all relevant case specific information” as instructed by
the Final Memo before submitting their information. Thus, an enforcement
agent has no conscientious way to avoid the prioritization and special
procedures required by the Final Memo.
DHS’s insistence that agency-wide discretion remains intact as it was
before the Final Memo is untenable. We have no difficulty determining that
the Final Memo was a final agency action under § 704.
C. Committed to Agency Discretion
Agency action is not subject to judicial review if it “is committed to
agency discretion by law.” 5 U.S.C. § 701(a)(2). The Supreme Court has
“read th[is] exception in § 701(a)(2) quite narrowly, restricting it to ‘those
rare circumstances where the relevant statute is drawn so that a court would
have no meaningful standard against which to judge the agency’s exercise of
discretion.’” Weyerhaeuser Co. v. U.S. Fish & Wildlife Serv., 139 S. Ct. 361,
370 (2018) (quoting Lincoln v. Vigil, 508 U.S. 182, 191, 113 S. Ct. 2024, 2030–
31 (1993)). Seeking to squeeze the Final Memo within this narrow exception,
DHS contends that these are agency enforcement decisions, which are
“generally committed to an agency’s absolute discretion.” Heckler v.
Chaney, 470 U.S. 821, 831 (1985).
In the first place, it is unlikely that Heckler’s approval of prosecutorial
discretion applies to agency rules. 9 But even if it did, it would not insulate
9
See Texas v. Biden, 20 F.4th 928, 978–85 (5th Cir. 2021), as revised (Dec. 21, 2021),
rev’d on other grounds, No. 21-954, slip op. at *9, 12 (U.S. June 30, 2022). Notably, DHS
did not argue to the Supreme Court that Heckler barred judicial consideration of the rule
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this rule. The Court in Heckler expressly distinguished its holding from cases
involving the present circumstances. It emphasized:
Nor do we have a situation where it could justifiably be found
that the agency has consciously and expressly adopted a general
policy that is so extreme as to amount to an abdication of its statutory
responsibilities. Although we express no opinion on whether
such decisions would be unreviewable under § 701(a)(2), we
note that in those situations the statute conferring authority on
the agency might indicate that such decisions were not
“committed to agency discretion.”
470 U.S. at 833 n.4, 105 S. Ct. at 1656 n.4 (emphasis added). The Final
Memo does not represent a one-off enforcement decision, but rather a
calculated, agency-wide rule limiting ICE officials’ abilities to enforce
statutory law. As will be indicated below, DHS’s interpretation of the
governing statutes seems obviously inconsistent with their meaning as a
matter of linguistics, text, and context. This rule gives every indication of
being “a general policy that is so extreme as to amount to an abdication of its
statutory responsibilities.” Id. Accordingly, Heckler does not save the Final
Memo from judicial scrutiny.
But even in the unlikely event that Heckler bears on this rule, the Court
emphasized in its opinion that any enforcement discretion was not absolute.
Rather, “the presumption may be rebutted where the substantive statute has
provided guidelines for the agency to follow in exercising its enforcement
powers.” Heckler, 470 U.S. at 832–33, 105 S. Ct. at 1656. This makes sense.
Congress defines the scope of the agency’s discretion, and the Executive is
revoking the previous Administration’s Remain in Mexico policy. Yet it is hard to
distinguish these two cases from that standpoint.
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not able to use its discretion in order to thwart the boundaries of its authority.
As further explained below, 8 U.S.C. §§ 1226(c) and 1231(a) are such
substantive statutes that curb agency discretion as it pertains to this
particular rule. See Jennings v. Rodriguez, 138 S. Ct. 830, 837 (2018)
(“Section 1226(c) . . . carves out a statutory category of aliens who may not
be released under § 1226(a).”). For both these reasons, DHS is unlikely to
succeed on this point.
D. Zone of Interests
Congress has provided a cause of action under the APA for parties
whose alleged injury was “arguably within the zone of interests to be
protected or regulated by the statutes that the agencies were claimed to have
violated.” Collins v. Mnuchin, 938 F.3d 553, 574 (5th Cir. 2019), aff’d in part,
vacated in part, rev’d in part sub nom. Collins v. Yellen, 141 S. Ct. 1761 (2021)
(internal quotation marks omitted). But this requirement is not “especially
demanding” and “the benefit of any doubt goes to the plaintiff.” Id. (internal
quotation marks omitted). “The test forecloses suit only when a plaintiff's
interests are so marginally related to or inconsistent with the purposes
implicit in the statute that it cannot reasonably be assumed that Congress
intended to permit the suit.” Texas DAPA, 809 F.3d at 162 (internal
quotation marks omitted).
DHS contends that the States do not fall within the zone of interests
covered by §§ 1226(c) or 1231(a). But this final justiciability argument is also
foreclosed by precedent. This court holds that “[t]he interests the states
seek to protect fall within the zone of interests of the INA,” and two criminal
immigration statutes fall squarely within that interest. Id. at 163. The States
will have no trouble clearing this low bar on appeal.
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III. Legality of Agency Action
DHS’s three defenses of the Final Memo on its merits are also likely
to fail on final appellate consideration. We address each in turn.
A. Contrary to Law
A primary point of contention here is whether the Final Memo
conflicts with 8 U.S.C. §§ 1226(c) and 1231(a) by rendering optional what
the statutes make mandatory. Significantly, these provisions are
distinguishable from 8 U.S.C. § 1225(b), construed in Texas MPP, which
governs aliens apprehended at the U.S. border who claim asylum relief. The
relevant provisions here do not utilize discretionary language, unlike the
main provision in Texas MPP, § 1225(b)(2)(C). Additionally, unlike Section
1225(b), the instant provisions relate to the expedited removal of a small
subset of aliens who have been in the United States and fall into two
categories: (1) those who, having been convicted of certain enumerated
criminal offenses, are removable; and (2) those who, at the conclusion of
immigration proceedings, have become subject to final removal orders.
Accordingly, we determine that the Court’s statutory analysis in Texas MPP
does not foreclose the question presented to this court with respect to
§§ 1226(c) and 1231(a).
We begin with the plain language and structure of the statutes.
Section 1226(c) provides: “The Attorney General shall take into custody any
alien who” committed certain delineated crimes 10 “when the alien is
10
These crimes include aliens convicted of crimes of moral turpitude, aliens
convicted of drug offenses, aliens convicted of multiple offenses with an aggregate sentence
of confinement of five years or more, aliens who are traffickers of controlled substances,
aliens convicted of an aggravated felony, aliens who participate in the commercialized sex
industry, aliens who engaged in terrorist activity, aliens who served in foreign governments
and committed “particularly severe violations of religious freedom,” aliens who participate
in the human trafficking industry, aliens who engage in money laundering, and aliens
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released” from state or local custody. § 1226(c)(1) (emphasis added). There
is one, and only one, qualification to this mandatory provision, which
authorizes discretionary release of such an alien “only if” three things are
true—such release is “necessary to provide protection” for a witness or
cooperator; and the alien proves he will pose no danger to persons or property
and will appear for proceedings; and the release procedures must take into
account the severity of the alien’s offense. 11 To effectuate § 1226(c)’s arrest
and detention mandate, Congress also provided that the Attorney General
shall devise and implement a system to identify and track criminal aliens in
local, state, and federal custody. § 1226(d) (emphasis added).
Consequently, as the Supreme Court explained, “Section 1226(c)
mandates detention during removal proceedings for a limited class of
deportable aliens—including those convicted of an aggravated felony.”
Demore v. Kim, 538 U.S. 510, 517–18, 123 S. Ct. 1708, 1714 (2003). In Demore,
the Court thoroughly explained that § 1226(c) was enacted to redress
convicted of certain firearms offenses. 8 U.S.C. §§ 1182(a)(2), (a)(3)(B), 1226(c),
1227(a)(2)(A)–(D).
11
The provision states:
The Attorney General may release an alien described in paragraph (1) only
if the Attorney General decides pursuant to section 3521 of title 18 that
release of the alien from custody is necessary to provide protection to a
witness, a potential witness, a person cooperating with an investigation
into major criminal activity, or an immediate family member or close
associate of a witness, potential witness, or person cooperating with such
an investigation, and the alien satisfies the Attorney General that the alien
will not pose a danger to the safety of other persons or of property and is
likely to appear for any scheduled proceeding. A decision relating to such
release shall take place in accordance with a procedure that considers the
severity of the offense committed by the alien.
§ 1226(c)(2) (emphasis added).
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multiple problems attendant to flight and recidivism because the previous law
entitled criminal aliens to individualized bond or detention hearings, which
led to a high rate of releases. Id. at 518–20, 123 S. Ct. at 1714–16. Congress
was “concern[ed] that, even with individualized screening, releasing
deportable criminal aliens on bond would lead to an unacceptable rate of
flight.” Id. at 520, 123 S. Ct. at 1716. But, evidencing the sharply different
enforcement concerns between non-criminal aliens and criminal aliens,
Congress provided more discretion as it pertains to non-criminal aliens.
Section 1226(a), which applies to aliens “[e]xcept as provided in
[§ 1226(c)],” states that the Attorney General “may continue to detain the
arrested alien,” or “may release the alien on” bond or conditional parole.
§ 1226(a)(1)–(2) (emphasis added).
Closely related to § 1226(c) is § 1231(a), which provides that “when
an alien is ordered removed, the Attorney General shall remove the alien
from the United States within a period of 90 days.” § 1231(a)(1)(A)
(emphasis added). Further, “[d]uring the removal period, the Attorney
General shall detain the alien. Under no circumstance during the removal
period shall the Attorney General release an alien who has” been convicted
of enumerated crimes. 12 § 1231(a)(2) (emphasis added).
Under basic principles of statutory construction, different words are
accorded their “ordinary” meaning and the text of a statute must be
12
These include a crime of moral turpitude, a drug offense, drug trafficking, human
trafficking, multiple offenses with an aggregate sentence of confinement of five years or
more, prostitution, an aggravated felony, high speed flight from an immigration checkpoint,
failure to register as a sex offender, certain firearm offenses, crimes of domestic violence,
crimes against children, or who has engaged in terrorist activity. 8 U.S.C. §§ 1182(a)(2),
(a)(3)(B), 1226(c), 1227(a)(2), (a)(4)(B), 1231(a)(2).
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construed as a whole. 13 Nowhere do these principles make more sense than
in the juxtapositions of “shall” with “may” in the two provisions at issue
here. In fact, the Court has firmly warned that these terms should be afforded
different meanings, especially where both are used in the same statute. See,
e.g., Texas MPP, slip op. at *13–15 (holding that the “unambiguous, express
term ‘may’” does not mean “shall” and it was error for the lower court to
hold otherwise); Jama v. Immigr. & Customs Enf’t, 543 U.S. 335, 346,
125 S. Ct. 694, 703 (2005) (noting that it is error to read these two words
synonymously when both are used in the same statute). Indeed, the Supreme
Court has repeatedly interpreted both of these statutes to require mandatory
detention. 14 Johnson v. Guzman Chavez, 141 S. Ct. 2271, 2280–81 & n.2
(2021) (“During the removal period, detention is mandatory” under §
1231(a)(2), and “[f]or certain criminal aliens and aliens who have
connections to terrorism, detention is mandatory” under § 1226(c)); Nielsen
v. Preap, 139 S. Ct. 954, 959 (2019) (referring to § 1226(c) as a “mandatory-
detention requirement”); Jennings, 138 S. Ct. at 846 (noting that § 1226(c)
“mandates detention”); Zadvydas v. Davis, 533 U.S. 678, 683, 121 S. Ct.
2491, 2495 (2001) (“After entry of a final removal order and during the 90–
day removal period, however, aliens must be held in custody” under
§ 1231(a)(2)); Demore, 538 U.S. at 517–18, 123 S. Ct. at 1714 (2003)
(“Section 1226(c) mandates detention during removal proceedings for a
limited class of deportable aliens.”).
13
ANTONIN SCALIA & BRYAN A GARNER, READING LAW: THE INTERPRETATION
OF LEGAL TEXTS § 24, p. 167 (2012).
14
DHS tries to distinguish these cases as involving individual aliens seeking relief.
This makes no sense. A straightforward statutory dictate does not modulate from
mandatory to permissive based on the particulars of the given case.
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The parallel treatment of mandatory and precatory terms indicates
conscious choices by Congress. DHS does not dispute that “shall” typically
represents mandatory language and that “may” “clearly connotes”
discretion. Texas MPP, slip op. at 13 (quoting Opati v. Republic of Sudan, 140
S. Ct. 1601, 1603 (2020)). See also Maine Cmty. Health Options v. United
States, 140 S. Ct. 1308, 1320 (2020) (“Unlike the word ‘may,’ which implies
discretion, the word ‘shall’ usually connotes a requirement.”).
Nevertheless, citing Town of Castle Rock, Colo. v. Gonzales, 545 U.S. 748,
125 S. Ct. 2796 (2005), DHS contends that there must be clear legislative
intent, beyond the word “shall,” that the legislature intended to overcome
the agency’s established discretion. Specifically, DHS argues that Castle
Rock’s holding that “[t]he deep-rooted nature of law-enforcement
discretion” may trump “seemingly mandatory legislative commands”
overcomes the plain meaning of the term “shall” in the instant provisions.
Id. at 761, 125 S. Ct. 2796.
But Castle Rock does not apply here for at least two reasons. First,
Castle Rock is distinguishable on its facts. There, the Court determined that
the plaintiff did not have a protected property interest in the enforcement of
the terms of her restraining order by the state police for purposes of the Due
Process Clause. 545 U.S. at 755, 125 S. Ct. at 2803. Colorado law did not
make enforcement of restraining orders mandatory, irrespective of the use of
the term “shall,” and thus there was no general entitlement to enforcement
of such restraining orders. Id. at 760-68, 125 S. Ct. at 2805–2809. It is a far
stretch of this precedent to extend it from individualized decisions made by
police officers to agency-wide decisions made by DHS. It is even more of a
stretch when, as just explained, the statutory language seems
incontrovertibly mandatory. Indeed, the Supreme Court has never applied
Castle Rock to federal agency action, and Fifth Circuit precent has only
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applied it to federal agency action where a statutory scheme expressly
rendered the agency action discretionary. 15
Second, the limitless principle of law that DHS would have us draw
from Castle Rock is untenable and wholly unsupported. DHS effectively
seeks a reading of Castle Rock that would insulate agency action that in any
way relates to enforcement duties, despite the plain language of the INA.
Nothing in Castle Rock compels that conclusion. The ruling there was based,
not on a police department-wide policy of not enforcing restraining orders,
but rather an individualized instance of nonenforcement. The Final Memo,
however, is much more than a singular nonenforcement decision. It is an
agency-wide mandate that strips from ICE agents their once-held discretion
and subjects all enforcement decisions to strict oversight in express
derogation of the governing statutes. Castle Rock does not compel us to
ignore the plain text of the INA for such agency action. DHS is not likely to
succeed on this crucial point.
We are additionally disturbed by certain aspects of the Considerations
Memo, which purports to summarize and provide context to the Final
Memo. In more ways than one, the Considerations Memo compels officials
to comply with the Final Memo by utilizing prosecutorial discretion in a
manner that violates statutory law. For example, it provides that the
guidelines “are essential to advancing this Administration’s stated
commitment to advancing equity for all, including people of color and others
who have been historically underserved, marginalized, and adversely affected
by persistent poverty and inequality.” DHS’s replacement of Congress’s
statutory mandates with concerns of equity and race is extralegal, considering
15
Ridgely v. FEMA, 512 F.3d 727, 735–36 (5th Cir. 2008) (holding that the statutes
and regulations governing Federal Emergency Management Agency did not create a
property interest in enforcement where “mandatory language is wholly absent”).
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that such policy concerns are plainly outside the bounds of the power
conferred by the INA. Similarly, the Considerations Memo explains that, in
identifying those who are a threat to public safety, DHS “chose to place
greater emphasis on the totality of the facts and circumstances” instead of
identifying this group categorically. But DHS simply lacks the authority to
make that choice when the statutes plainly mandate such categorical
treatment. This is especially troubling in light of the fact that Congress
attempted to prohibit such individualized consideration when it enacted §
1226(c) because the previous policy led to unacceptably high rates of criminal
alien flight. Demore, 538 U.S. at 518–20, 123 S. Ct. at 1714–16. Thus, the
Consideration Memo further confirms what the Final Memo says for itself—
that it represents a disingenuous attempt on behalf of DHS to claim it acts
within the bounds of federal law while practically disregarding that law.
B. Arbitrary & Capricious
Courts are compelled to “hold unlawful and set aside agency
action[s]” that are “arbitrary, capricious, an abuse of discretion, or otherwise
not in accordance with law.” 5 U.S.C. § 706(2). While a reviewing court
must not “substitute” its “own policy for that of the agency” and must apply
this standard deferentially, the agency action must still “be reasonable and
reasonably explained.” FCC v. Prometheus Radio Project, 141 S. Ct. 1150, 1158
(2021). This court “must set aside any action premised on reasoning that
fails to account for relevant factors or evinces a clear error of judgment.”
Univ. of Tex. M.D. Anderson Cancer Ctr. v. HHS, 985 F.3d 472, 475 (5th Cir.
2021) (quotation omitted). Arbitrary and capricious review “is not
toothless.” Sw. Elec. Power Co. v. EPA, 920 F.3d 999, 1013 (5th Cir. 2019).
“In fact, after Regents, it has serious bite.” Wages & White Lion Invs., LLC v.
FDA, 16 F.4th 1130, 1136 (5th Cir. 2021). “[A]n agency’s action must be
upheld, if at all, on the basis articulated by the agency itself,” not reasons
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developed post hoc. Motor Vehicle Mfrs. Ass’n of U.S., Inc. v. State Farm Mut.
Auto. Ins. Co., 463 U.S. 29, 50, 103 S. Ct. 2856, 2870 (1983).
DHS contends that the Considerations Memo expresses the basis for
the Final Memo and is intended to supplement it. Upon examining the
Considerations Memo, the district court found that DHS failed to adequately
consider the high chances of recidivism and absconding within the relevant
class of aliens as well as the costs or reliance interests of the States. On the
other hand, DHS argues that the Considerations Memo sufficiently
addresses these factors to satisfy the arbitrary/capricious standard.
The Considerations Memo states that the “public safety” factors
“are to be weighed in each case to assess whether a noncitizen poses a current
threat to public safety, including through a meaningful risk of recidivism.” DHS
contends that this illustrates that the agency considered recidivism, and it
was not required to support its position with “empirical or statistical
studies.” Prometheus, 141 S. Ct. at 1160. But that is beside the point. The
district court did not hold that the agency failed to consider recidivism at all.
To the contrary, the court concluded that DHS failed to consider recidivism
among the relevant population at issue in this case—“aliens who have been
convicted of or are implicated in serious crime and aliens who have received
a final order of removal.” Those are the aliens covered by § 1226(c) 16 or
§ 1231(a)(2). While the Considerations Memo generally relies on studies
about criminality among all aliens, those studies did not account for
potentially higher rates of recidivism among those “who have already been
convicted of a serious crime.”
16
In fact, Congress was especially concerned with the serious harms repeat
criminal aliens may cause if not detained when it passed § 1226(c). Demore v. Kim, 538
U.S. 510, 518–20 (2003).
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DHS does not assert that general alien criminality can substitute for
data concerning the subset of convicted aliens. In fact, in 2019, DHS itself
acknowledged that criminal aliens recidivate and abscond at higher rates:
Of the 123,128 ERO administrative arrests in FY 2019 with
criminal convictions or pending criminal charges, the criminal
history for this group represented 489,063 total criminal
convictions and pending charges as of the date of arrest, which
equates to an average of four criminal arrests/convictions per alien,
highlighting the recidivist nature of the aliens that ICE arrests.
Yet this actual differential between the general population and the serious
previous offender population receives no mention in the Considerations
Memo. And it undoubtedly should have, because repeat illegal alien
offenders inflict considerable damage on innocent American citizens. On this
record, DHS is unlikely to succeed in demonstrating that it considered “the
relevant data” and drew a “rational connection between the facts found and
the choice made.” State Farm, 463 U.S. at 43, 103 S. Ct. at 2866 (internal
quotation marks omitted).
We next address the costs of this rule to the States and their reliance
interests. “When an agency changes course, as DHS did here, it must ‘be
cognizant that longstanding policies may have engendered serious reliance
interests that must be taken into account.’” Dep’t of Homeland Sec. v. Regents
of the Univ. of California, 140 S. Ct. 1891, 1913 (2020) (quoting Encino
Motorcars, LLC v. Navarro, 579 U.S. 211, 212, 136 S. Ct. 2117, 2120 (2016)).
Failure to do so is fatal. DHS contends that a multi-page section in the
Considerations Memo analyzing the “Impact on States” demonstrates that
it adequately considered these interests before circulating the Final Memo.
The district court found, however, that this analysis merely paid “lip service
to the States’ concerns.”
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We are troubled by DHS’s dismissive analysis, which dots “i’s” and
crosses “t’s” without actually saying anything. For example, DHS
minimizes the influence of its policy on the States as maybe having some
“downstream impacts.” The Considerations Memo then states that it
“cannot provide an exhaustive analysis of all of these potential impacts every
time it adopts a change in immigration policy.” Rather, it claims that any
such “assessment” would be “uniquely difficult to conclude with certainty,”
so it simply does not bother. Yet, after explicitly declining to quantify or at
least reasonably describe the costs of this policy to the States, the agency
audaciously concludes that “any effects from implementation of priorities
guidance are unlikely to be significant, and could have a net positive effect.”
As to the States’ reliance interests, the Considerations Memo flatly
concludes that “no such reasonable reliance interests exist.” In a single
paragraph citing no evidence, DHS concluded that the States, including
Texas as a 900-mile border state, has no reliance interests in the enforcement
of federal criminal immigration law according to the governing statutes. 17
This omission is more inexcusable since the States have consistently asserted
their reliance interests in the context of this litigation, which has been
ongoing simultaneously with DHS’s promulgation of the Final Memo and
the Considerations Memo. “Stating that a factor was considered . . . is not
a substitute for considering it.” Getty v. Fed. Sav. & Loan Ins. Corp., 805 F.2d
1050, 1055 (D.C. Cir. 1986). Rather, courts “must make a searching and
careful inquiry to determine if [the agency] actually did consider it.” Id.(internal quotation marks omitted). At this point, DHS has not shown a
likelihood that it adequately considered the relevant costs to the States or
their reliance interests in the pre-existing enforcement policy.
17
But see supra note 4.
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C. Procedural Invalidity
Under the APA, rules must be subject to notice-and-comment
rulemaking unless they fall within one of the APA’s exceptions.
5 U.S.C. § 553(b)(A). Such exceptions “must be narrowly construed.”
Texas DAPA, 809 F.3d at 171 (internal quotation marks omitted). DHS
contends that its rule does not need to be subject to notice-and-comment
rulemaking because it qualifies as a general statement of policy, which merely
“advise[s] the public prospectively of the manner in which the agency
proposes to exercise a discretionary power.” Lincoln v. Vigil, 508 U.S. 182,
197, 113 S. Ct. 2024, 2034 (1993) (internal quotation marks omitted). To
determine whether a rule is merely a “policy statement,” we evaluate two
criteria: “whether the rule (1) imposes any rights and obligations and (2)
genuinely leaves the agency and its decision-makers free to exercise
discretion.” Texas DAPA, 809 F.3d at 171 (internal quotation marks
omitted). “While mindful but suspicious of the agency’s own
characterization, we focus primarily on whether the rule has binding effect
on agency discretion or severely restricts it.” Id. (internal quotation marks
and alterations omitted).
As described above, the Final Memo overwhelmingly satisfies both
criteria. Both the language found within and the mechanisms of
implementing it establish that it is indeed binding, thus removing DHS
personnel’s discretion to stray from the guidance or take enforcement action
against an alien on the basis of a conviction alone. For the same reasons
articulated supra Section II.B, the Final Memo is much more substantive than
a general statement of policy and, as such, it had to undergo notice and
comment procedures. Because it did not, DHS is unlikely to be successful in
establishing that the Final Memo need not have been subject to notice and
comments before its promulgation.
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IV. Remaining Stay Factors
DHS’s case on the merits is sufficiently weak to justify denying a stay on
that basis alone. But we briefly note our skepticism about DHS’s allegations
of “confusion” and the potential “waste” of “resources” that would result
from our allowing the vacatur go into effect. Despite the administrative
inconvenience caused by this litigation, DHS has no “interest in the
perpetuation of unlawful agency action.” League of Women Voters of United
States v. Newby, 838 F.3d 1, 12 (D.C. Cir. 2016). “To the contrary, there is a
substantial public interest ‘in having governmental agencies abide by the
federal laws that govern their existence and operations.’” Id. (quoting
Washington v. Reno, 35 F.3d 1093, 1103 (6th Cir. 1994)). Furthermore,
“there is always a public interest in prompt execution of removal orders, and
that interest may be heightened by circumstances such as a particularly
dangerous alien.” Nken v. Holder, 556 U.S. 418, 129 S. Ct. 1749, 1753 (2009)
(internal quotation marks, citation, and alterations omitted). Because the
prevention of agency abuse overcomes other factors, none of those counsel
in favor of granting DHS’s stay. 18
V. Arizona v. Biden
That this decision departs from the Sixth Circuit’s recent opinion in
Arizona v. Biden is readily explicable. In that case, the states of Arizona,
Montana, and Ohio brought a nearly identical challenge to the Final Memo
and DHS sought a stay of the district court’s nationwide preliminary
injunction. Arizona v. Biden, 31 F.4th 469, 472 (6th Cir. 2022). The Sixth
18
We further reject DHS’s contention that the nationwide vacatur is overbroad.
In the context of immigration law, broad relief is appropriate to ensure uniformity and
consistency in enforcement. Furthermore, “[t]here is a substantial likelihood that a
geographically-limited injunction would be ineffective because [criminal aliens not subject
to enforcement] would be free to move among states.” Texas DAPA, 809 F.3d at 188.
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Case: 22-40367 Document: 00516384389 Page: 32 Date Filed: 07/06/2022
No. 22-40367
Circuit ruled differently on several dispositive issues, but our differences
result from two factors.
Unlike the Sixth Circuit, this court has developed precedent that
predetermines many of our conclusions. See Texas DAPA, 809 F.3d at 134.
As to issues raised by DHS that are not foreclosed by circuit precedent, we
disagree with our sister circuit’s legal conclusions for the reasons articulated
above. Importantly, the Sixth Circuit found the factual record before it
insufficient to support the states’ standing. Arizona, 31 F.4th at 481–82
(“The States do not suggest that the agency had to calculate the costs of its
Guidance on States, and the States themselves have not offered any concrete
evidence of the Guidance’s fiscal effects on each of them.”). This court’s
appellate consideration, in contrast, has been significantly assisted by the
district court’s fulsome fact-findings based on a comprehensively tried case.
Facts pertinent to standing and to the administrative issues raised by DHS
are not wanting in the record before us.
Until there is a contrary ruling from the Supreme Court, we adhere to
our precedent and the facts found by the district court.
CONCLUSION
For the foregoing reasons, the motion for a stay pending appeal is
DENIED.
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