40 F.4th 205
5th Cir.2022Background
- Congress enacted mandatory detention and removal provisions for certain criminal aliens and those with final removal orders (8 U.S.C. §§ 1226(c), 1231(a)).
- DHS issued January and February 2021 memoranda setting narrow enforcement priorities; on Sept. 30, 2021 Secretary Mayorkas issued a Final Memo rescinding those interim memos and instituting case-by-case assessments that prohibit relying solely on a conviction or removal order.
- The Final Memo required extensive training, continuous review, data collection, and a case-review process providing noncitizens review opportunities; the Considerations Memo summarized DHS’s rationale.
- Texas and Louisiana sued, alleging the Final Memo (1) conflicts with mandatory statutory detention/removal, (2) is arbitrary and capricious for failing to consider recidivism and State reliance, and (3) is procedurally invalid for skipping notice-and-comment; the district court vacated the Final Memo after a bench trial.
- DHS sought a stay of vacatur pending appeal; the Fifth Circuit denied the stay, concluding DHS failed to show a strong likelihood of success on the merits.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Standing | Texas: concrete financial and parens patriae harms from rescinded detainers, increased incarceration/parole costs, recidivism | DHS: harms speculative, not traceable to Memo, and not redressable | Texas has standing under "special solicitude"; harms are concrete, traceable, and redressable |
| §1252(f)(1) jurisdiction | Vacatur restoring status quo is permissible judicial relief | §1252(f)(1) bars lower courts from enjoining or restraining operation of INA provisions, so vacatur is barred | §1252(f)(1) unlikely to bar vacatur; statute is a narrow limit on injunctive relief, not vacatur |
| Final agency action / reviewability | Final Memo binds DHS personnel and alters legal regime | Memo is nonbinding guidance, not final agency action | Memo is final agency action: withdraws discretion and implements binding compliance mechanisms |
| Committed-to-agency-discretion (Heckler) | Statutes constrain DHS discretion; courts can review agency rules | Enforcement choices are committed to agency discretion and unreviewable | Heckler does not shield this rule; statutes provide meaningful standards so action is reviewable |
| Conflict with statutes (contrary to law) | Memo effectively makes mandatory "shall" detention/removal optional, contradicting §§1226(c),1231(a) | Memo is lawful exercise of prosecutorial discretion given resource limits | Memo likely conflicts with statutory mandatory language and is unlawful |
| Arbitrary & capricious | DHS failed to analyze recidivism among the specifically covered class and ignored States’ reliance/costs | DHS considered public-safety factors generally and need not produce granular empirical studies | DHS likely acted arbitrarily and capriciously by failing to consider key data and reliance interests |
| Procedural (notice-and-comment) | Final Memo is a substantive rule altering rights/obligations and required notice-and-comment | Memo is a general policy statement exempt from notice-and-comment | Memo is substantive and likely procedurally invalid for bypassing notice-and-comment |
Key Cases Cited
- Thomas v. Bryant, 919 F.3d 298 (5th Cir. 2019) (stay pending appeal factors)
- Coe v. Chesapeake Expl., L.L.C., 695 F.3d 311 (5th Cir. 2012) (appellate review standards)
- Monsanto Co. v. Geertson Seed Farms, 561 U.S. 139 (2010) (vacatur vs injunction as remedies)
- Reno v. Am.-Arab Anti-Discrimination Comm., 525 U.S. 471 (1999) (§1252(f) as limit on injunctive relief)
- Dep't of Homeland Sec. v. Regents of the Univ. of Cal., 140 S. Ct. 1891 (2020) (agency change and reliance interests; vacatur precedent)
- Encino Motorcars, LLC v. Navarro, 579 U.S. 211 (2016) (consider reliance when changing agency policy)
- Heckler v. Chaney, 470 U.S. 821 (1985) (prosecutorial discretion doctrine)
- Demore v. Kim, 538 U.S. 510 (2003) (§1226(c) mandates detention for certain criminal aliens)
- Zadvydas v. Davis, 533 U.S. 678 (2001) (mandatory detention during removal period)
- Jennings v. Rodriguez, 138 S. Ct. 830 (2018) (interpretation of detention statutes)
- Motor Vehicle Mfrs. Ass'n v. State Farm, 463 U.S. 29 (1983) (arbitrary and capricious review requires reasoned decisionmaking)
- Texas v. United States, 809 F.3d 134 (5th Cir. 2015) (states' special solicitude for standing)