14 F.4th 332
5th Cir.2021Background
- On Jan 20, 2021 DHS issued an "interim" memo setting civil immigration enforcement priorities (national security, recent border entrants, aggravated felons) and directing a 100‑day pause on removals; ICE issued a Feb 18 memo adopting the same priorities and requiring approval before pursuing most non‑priority actions.
- Texas and Louisiana sued, challenging the memos; the district court held the memos violated the APA (contrary to law, arbitrary and capricious, and issued without notice and comment) and entered a nationwide preliminary injunction barring enforcement of the memos’ civil‑enforcement guidelines and imposing reporting requirements.
- The district court delayed the injunction’s effective date to permit an emergency stay application to the Fifth Circuit; the government sought a stay pending appeal.
- The Fifth Circuit analyzed the standard for a stay (Nken factors) and focused on whether the memos are reviewable or instead reflect traditional prosecutorial/enforcement discretion immune from APA review.
- The Fifth Circuit concluded the government is likely to succeed insofar as the injunction prevents DHS/ICE from relying on the memos to make pre‑detention enforcement decisions (who to stop, arrest, detain, issue NTA/detainer), but upheld the injunction only to the extent it prevents refusing mandatory detention for aliens covered by 8 U.S.C. §1226(c)(1) and aliens ordered removed under §1231(a)(1)(A).
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether memos are reviewable under the APA or committed to agency enforcement discretion | Memos create substantive limits/choices that are reviewable; statutory mandatory‑detention requirements eliminate discretion | Memos reflect routine prosecutorial/enforcement priorities committed to executive discretion and presumptively unreviewable | Court: Likely for defendant as to pre‑detention enforcement choices—those decisions are committed to discretion and stay warranted |
| Whether IIRIRA §§1226(c) and 1231(a)(2) eliminate discretion to decide whom to arrest/detain | §§1226(c) and §1231 require mandatory detention and thus remove discretion to decline enforcement against covered classes | Statutes govern custodial status after charging/detention decisions, not the threshold decision whom to charge or arrest | Court: Statutes govern detention once proceedings or removal orders exist; they do not clearly eliminate pre‑charging enforcement discretion—injunction cannot bar reliance on memos for nondetention prioritization |
| Scope of district court’s nationwide preliminary injunction (detainers, NTAs, stops, arrests, reporting) | Broad relief necessary to stop implementation of unlawful policy nationwide | Nationwide injunction exceeds proper scope where discretion exists and interferes with core executive functions | Court: Narrowed injunction—remains effective only as to refusal to detain aliens covered by §1226(c)(1) or aliens ordered removed under §1231(a)(1)(A); stayed in all other respects |
| Whether a stay pending appeal is appropriate | States: injunction should remain to prevent ongoing unlawful nonenforcement | Government: irreparable harm to executive discretion and separation‑of‑powers; maintenance of status quo and imminent new guidance counsel in favor of a stay | Court: Balance favors a partial stay—irreparable injury to the Executive and public interest support staying injunction except for the mandatory‑detention scenarios noted above |
Key Cases Cited
- Nken v. Holder, 556 U.S. 418 (stay factors for injunctions and stays)
- Hilton v. Braunskill, 481 U.S. 770 (standard for preliminary relief and stay equity balancing)
- Heckler v. Chaney, 470 U.S. 821 (presumption that agency decisions not to initiate enforcement are unreviewable)
- Arizona v. United States, 567 U.S. 387 (immigration enforcement involves broad executive discretion)
- Reno v. American‑Arab Anti‑Discrimination Comm., 525 U.S. 471 (enforcement discretion in deportation context is greatly magnified)
- Town of Castle Rock v. Gonzales, 545 U.S. 748 ("shall" in arrest statute does not necessarily eliminate law‑enforcement discretion)
- Jennings v. Rodriguez, 138 S. Ct. 830 (interpretation of §1226 detention framework as to custody pending removal proceedings)
- Guzman Chavez v. Hugler, 141 S. Ct. 2271 (recent Supreme Court treatment of detention under §1231)