40 F.4th 375
6th Cir.2022Background
- In Sept. 2021 DHS Secretary Mayorkas issued “Guidelines for the Enforcement of Civil Immigration Law” prioritizing enforcement against threats to national security, public safety, and border security and stating the guidance is nonbinding and preserves prosecutorial discretion.
- Arizona, Montana, and Ohio sued the federal government in the S.D. Ohio under the Administrative Procedure Act, alleging the Guidance conflicts with 8 U.S.C. §§ 1226(c)(1) and 1231(a)(1)(A), is arbitrary and capricious, and lacked notice-and-comment.
- The district court granted a nationwide preliminary injunction blocking the Guidance; the Sixth Circuit granted a stay and expedited the appeal.
- The Sixth Circuit majority reversed, holding plaintiffs unlikely to succeed on the merits and identifying serious standing and reviewability problems; it also concluded the Guidance is a nonbinding prioritization within long-recognized executive discretion.
- Chief Judge Sutton (concurring) added independent reasons to vacate the nationwide injunction: § 1252(f)(1) bars such relief and universal remedies exceed a district court’s equitable authority.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Article III standing | States incur concrete fiscal and public-safety costs from fewer detentions/removals caused by the Guidance | Alleged harms are speculative, depend on third-party choices, and are not directly caused or redressable by vacating Guidance | Plaintiffs’ asserted injuries are speculative and causation/redressability problems make standing doubtful at the preliminary stage |
| Reviewability under APA (final agency action) | Guidance has operative effect (training, implementation, transfers) and thus is reviewable | Guidance is a nonbinding policy statement that preserves discretion and creates no legal rights or obligations | Guidance likely is nonreviewable as non-final policy guidance and/or committed to enforcement discretion |
| Merits — Contrary to law (8 U.S.C. §§ 1226(c), 1231(a)) | “Shall” in these statutes creates a mandatory, judicially enforceable duty to arrest/detain/remove covered aliens, so Guidance unlawfully narrows enforcement | Statutory scheme, enforcement history, and prosecutorial discretion show Congress did not remove Executive discretion; “shall” does not eliminate discretion in this enforcement context | Unlikely plaintiffs will prevail: statutes do not unambiguously eliminate Executive enforcement discretion and do not clearly preclude priority guidance |
| Equitable relief / scope of injunction | Nationwide injunction necessary to prevent harm across States | Nationwide injunctions exceed district court power; §1252(f)(1) limits injunctions relating to §§1221–1232; relief should be party-specific | Preliminary injunction was improper; concurrence emphasized §1252(f)(1) and that universal injunctions exceed traditional equitable limits |
Key Cases Cited
- Winter v. Nat. Res. Def. Council, 555 U.S. 7 (2008) (standard for preliminary injunction: likelihood of success, irreparable harm, balance of equities, public interest)
- Lujan v. Defs. of Wildlife, 504 U.S. 555 (1992) (injury-in-fact, causation, redressability requirements for standing)
- Arizona v. United States, 567 U.S. 387 (2012) (federal primacy over immigration enforcement and Executive discretion)
- Reno v. American-Arab Anti-Discrimination Comm., 525 U.S. 471 (1999) (Executive discretion at various stages of removal)
- Heckler v. Chaney, 470 U.S. 821 (1985) (presumption that agency decisions not to enforce are committed to agency discretion)
- U.S. Army Corps of Eng'rs v. Hawkes Co., 578 U.S. 590 (2016) (finality test for agency action: consummation and legal consequences)
- Dalton v. Specter, 511 U.S. 462 (1994) (agency action must directly affect rights to be final)
- Zadvydas v. Davis, 533 U.S. 678 (2001) (limitations on detention and recognition of practical limits on removal periods)
- Dep’t of Commerce v. New York, 139 S. Ct. 2551 (2019) (standing and concrete injury analysis for States alleging fiscal harm)
- Lincoln v. Vigil, 508 U.S. 182 (1993) (general statements of policy need not undergo notice-and-comment)
- Azar v. Allina Health Servs., 139 S. Ct. 1804 (2019) (content, not label, determines whether agency action is rule requiring notice-and-comment)
- FCC v. Prometheus Radio Project, 141 S. Ct. 1150 (2021) (arbitrary-and-capricious review is deferential; courts do not substitute their policy judgment)