STATE OF TEXAS, et al., Plaintiffs, v. JOSEPH R. BIDEN, JR., et al., Defendants.
2:21-CV-067-Z
IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF TEXAS AMARILLO DIVISION
December 15, 2022
This case began as a challenge to the termination of the Migrant Protection Protocols (“MPP“) program in January 2021. Although the legal instruments governing the termination evolved over time by issuance of new memoranda, this case continued. Most recently, the Supreme Court remanded the case for this Court to consider Plaintiff States of Texas and Missouri‘s (“Plaintiffs“) claims against the most recent memoranda. The Court now considers Plaintiffs’ Motion to Postpone the Effective Date of Agency Action (“Motion“) (ECF No. 149), filed on August 8, 2022. Plaintiffs carry their burden to show — among other things — they will likely prevail on the merits. Accordingly, the Court GRANTS the Motion and STAYS the most recent memoranda, issued on October 29, 2021, and corresponding decision to terminate MPP until the Court can resolve the merits of Plaintiffs’ claims.
BACKGROUND
This action has a complex procedural history, having gone from this Court to the Fifth Circuit, to the Supreme Court, and back to this Court on remand. Or, “there and back again.” See J.R.R. TOLKIEN, THE HOBBIT, OR THERE AND BACK AGAIN (1937). The Court first addresses that procedural history before more thoroughly detailing the facts relevant on remand.
On December 20, 2019, the Department of Homeland Security (“DHS“) announced MPP. DHS created the program in responsе to an immigration surge at the southern border of the United States and a resulting “humanitarian and border security crisis” in which federal immigration officials were encountering about 2,000 inadmissible aliens each day. ECF No. 94 at 7. MPP required DHS to return certain non-Mexican nationals arriving by land from Mexico back to Mexico to await the results of their removal proceedings under
Congress authorized MPP in the Immigration and Nationality Act (“INA“). The INA provides: “In the case of an alien . . . who is arriving on land (whether or not at a designated port of arrival) from a foreign territory contiguous to the United States, the Attorney General may return the alien to that territory pending a proceeding under section 1229a of this title.”1
DHS began implementing MPP in January 2019. ECF No. 94 at 8. President Trump‘s administration implemented MPP because DHS lacks the resources to detain every alien seeking admission to the United States. Id. at 43. MPP ensured “[c]ertain aliens attempting to enter the U.S. illegally or without documentation, including those who claim asylum, will no longer be released into the country, where they often fail to file an asylum application and/or disappear
On January 20, 2021, the Acting Secretary of DHS wrote: “Effective January 21, 2021, the Department will suspend new enrollments in [MPP] pending further review of the program. Aliens who are not already enrolled in MPP should be processed under other existing legal authorities.” Id. at 15 (“January Suspension“). President Biden‘s administration later issued Executive Order No. 14010, which directed DHS Secretary Alejandro Mayorkas to “promptly review and determine whether to terminate or modify [MPP].” 86 Fed. Reg. 8269 (2021).
On June 1, 2021, Secretary Mayorkas issued a memorandum officially ending MPP. See Memorandum from Alejandro N. Mayorkas, Sec‘y of Homeland Security, Termination of the Migrant Protection Protocols Program (June 1, 2021) (“June 1 Memorandum“). In doing so, Secretary Mayorkas “direct[ed] DHS personnel to take all appropriate actions to terminate MPP, including taking all steps necessary to rescind implemеnting guidance and other directives or policy guidance issued to implement the program.” ECF No. 54-2 at 172.
On April 13, 2021, Plaintiffs initiated this litigation challenging President Biden‘s administration‘s termination of MPP. See generally ECF No. 1. Plaintiffs’ initial Complaint challenged the January Suspension that paused new enrollments in MPP. Following the June 1 Memorandum, Plaintiffs amended their Complaint to challenge the termination of the entire program. See generally ECF No. 48. Plaintiffs’ First Amended Complaint asserted the June 1 Memorandum violated the INA and the Administrative Procedure Act (“APA“),
On the cusp of oral argument in the Fifth Circuit, DHS issued two memoranda (“October 29 Memoranda“) declaring that it had made a new decision terminating MPP. See ECF No. 162 at 19-61, Termination of the Migrant Protection Protocols (“Termination Memorandum“) and Explanation of the Decision to Terminate the Migrant Protection Protocols (“Explanation Memorandum“). At the same time, Defendants asked the Fifth Circuit to hold the case moot, to vacate this Court‘s judgment and permanent injunction, and to remand the case for further proceedings. Texas v. Biden, 20 F.4th 928, 946 (5th Cir. 2021) (“Biden I“). The Fifth Circuit declined. It instead held that the October 29 Memoranda did not moot or have any legal effect on the appeal. Id. at 956-66, 998-1000. The Fifth Circuit then affirmed this Court on the merits. See generally id.
On June 30, 2022, the Supreme Court reversed the Fifth Circuit. See generally Biden v. Texas, 142 S. Ct. 2528 (2022) (“Biden II“). First, the Supreme Court determined
Although the Supreme Court determined the October 29 Memoranda constitute final agency action that suspended the June 1 Memorandum, the Supreme Court did not answer whether the October 29 Memoranda are arbitrary and capricious under the APA. That task, the Supreme Court stated, is for this Court. See id. at 2548 (“On remand, the District Court should consider in the first instance whether the October 29 Memoranda comply with section 706 of the APA.“) (citing Motor Vehicle Mfrs. Ass‘n of U.S., Inc. v. State Farm Mut. Auto. Ins. Co., 463 U.S. 29, 46-57 (1983)), 2549 (Kavanaugh, J., concurring) (“The question of whether DHS‘s October 29 decision satisfies the State Farm standard is not before this Court at this time. The Court today therefore properly leaves the State Farm issue for consideration on remand.“), 2559 (Alito, J., dissenting) (“I agree with the majority that the District Court on remand should consider in the first instance whether the October 29 Memoranda complied with § 706 of the APA.“). Plaintiffs now challenge the October 29 Memoranda.
B. Background Relevant to the October 29 Memoranda
On October 29, 2021, the Secretary issued the two memoranda, which the Court collectively calls the “October 29 Memoranda.” The October 29 Memoranda consist of
In the October 29 Memoranda, the Secretary identified what he believed to be “the strongest argument in favor of retaining MPP: namely, the significant decrease in border encounters following the determination to implement MPP across the southern border.” Id. at 21. The Secretary nonetheless concluded MPP‘s “benefits do not justify the costs, particularly given the way in which MPP detracts from other regional and domestic goals, foreign-policy objectives, and domestic policy initiatives that better align with this Administration‘s values.” Id. Finally, the Secretary noted that “[e]fforts to implement MPP have played a particularly outsized role in diplomatic engagements with Mexico, diverting attention from more productive efforts to fight transnational criminal and smuggling networks and address the root causes of migration.” Id.
Considering these conclusions, the Secretary announced he would once again terminate MPP. Id. at 22. The Secretary explained DHS would “continue complying with [this Court‘s] injunction requiring good-faith implementation and enforcement of MPP,” but that “the termination of MPP” would be “implemented as soon as practicable after a final judicial
C. The Pending Motion
On August 8, 2022, Plaintiffs filed the instant Motion. See ECF No. 149. Plaintiffs ask the Court to issue “a stay of the October 29 Memoranda pending a final merits determination as to whether they satisfy the requirements of reasoned decisionmaking under the APA.” Id. at 11. Plaintiffs allege the Secretary failed to adequately consider: (1) “how using contiguous-territory return authority would allow Defendants to avoid violations of the INA‘s clear detention mandate“; (2) “MPP‘s deterrent effect in reducing dangerous attempted illegal border crossings, as well as MPP‘s reduction of unmeritorious asylum claims“; (3) “the justification of changed factual determinations regarding in absentia removal orders“; (4) “whether DHS‘s rescission of MPP is causing [DHS] to violate the limits on its parole authority“; and (5) “costs to States and their reliance interests.” Id.
Defendants dispute these assertions. See ECF No. 163 at 34-51. But before addressing the substance of Plaintiffs’ APA claims, Defendants argue this Court lacks jurisdiction and the request for stay is not justiciable. See id. at 17-25. Specifically, Defendants argue: (1)
The Court separates Parties’ arguments into two categories: justiciability arguments and merits arguments. The Court will reorder and consider Defendants’ justiciability arguments before turning to Plaintiffs’ APA claims.
A. Plaintiffs Possess Standing
The judicial power of federal courts is limited to certain “Cases” and “Controversies.”
Standing is “an essential and unchanging part of the case-or-controversy requirement of Article III.” Lujan v. Defs. of Wildlife, 504 U.S. 555, 560 (1992). To possess standing, the party invoking federal jurisdiction must establish he suffered: (1) an “injury in fact” that is “concrete and particularized” and “actual or imminent“; (2) his injury is “fairly . . . trace[able] to the challenged action of the defendant“; and (3) his injury is “likely” rather than “speculative[ly]” to be “redressed by a favorable decision.” Id. at 560-61 (internal marks omitted).
Plaintiffs have standing to challenge the October 29 Memoranda for the same reasons that they had standing to challenge the previous termination of MPP. See Env‘t Tex. Citizen Lobby, Inc. v. ExxonMobil Corp., 47 F.4th 408, 416 (5th Cir. 2022); ECF No. 94 at 21-26. Additionally, the Court‘s previous determinations on standing constitute the law of the case because the agency action at issue is identical to the previously challenged action. See Free v. Abbott Lab‘ys, Inc., 164 F.3d 270, 272-73 (5th Cir. 1999) (joining other circuits in refusing to recognize jurisdiction exception to law-of-the-case doctrine and explaining that although a federal
Although Defendants argue the Court cannot rely on its previous standing determination, the Supreme Court did not overturn the standing determinations of this Court or the Fifth Circuit. See ECF No. 163 at 28-29; Data Mktg. P‘ship, LP v. U.S. Dep‘t of Lab., 45 F.4th 846, 856 n.2 (5th Cir. 2022); Texas v. United States, 40 F.4th 205, 222 n.9 (5th Cir. 2022) (per curiam) (considering Biden II binding on all grounds not reversed), cert. granted, No. 22A17 (22-58), 2022 WL 4841804 (July 21, 2022); Cent. Pines Land Co. v. United States, 274 F.3d 881, 893 n.57 (5th Cir. 2001) (concluding circuit opinions in which judgment reversed on only some grounds are still precedential with respect to portions not reversed). The Supreme Court implied standing is satisfied — as it remanded this action for the limited consideration of whether the October 29 Memoranda were arbitrary and capricious. See Biden II, 142 S. Ct. at 2548; Fisher v. Univ. of Tex. at Austin, 758 F.3d 633, 640 (5th Cir. 2014), aff‘d, 579 U.S. 365 (2016) (“The Supreme Court did not address the issue of standing, although it was squarely presented to it.“). The Supreme Court would not have remanded this case to this Court if Plaintiffs lacked standing to challenge the October 29 Memoranda.
Moreover, “the mandate rule, a corollary of the law of the case doctrine, compels compliance on remand with the dictates of a superior court and forecloses relitigation of issues
This Court will not exceed the Supreme Court or Fifth Circuit‘s mandates. See Biden II, 142 S. Ct. at 2548 (“On remand, the District Court should consider in the first instance whether the October 29 Memoranda comply with section 706 of the APA.“); Texas v. Biden, 43 F.4th 446, 447 (5th Cir. 2022) (per curiam) (mem. op.) (“We remand for further proceedings consistent with the Supreme Court‘s decision.” (emphasis removed)). Accordingly, the Court finds no reason to dismiss this case for an alleged absence of standing.
B. Plaintiffs Assert a Valid Cause of Action
Defendants renew two arguments against judicial review of the Secretary‘s deсision to terminate MPP. First, Defendants argue agency action terminating MPP is “committed to agency discretion” by law and, therefore, not subject to judicial review. ECF No. 163 at 32; see also
C. Section 1252(f)(1) Does Not Bar Jurisdiction
Parties dispute whether the Court has “jurisdiction or authority” to “issue all necessary and appropriate process to postpone the effective date of an agency action or to preserve status or rights pending conclusion of the review proceedings” under
When an agency finds that justice so requires, it may postpone the effective date of action taken by it, pending judicial review. On such conditions as may be required and to the extent necessary to prevent irreparable injury, the reviewing сourt, including the court to which a case may be taken on appeal from or on application for certiorari or other writ to a reviewing court, may issue all necessary and appropriate process to postpone the effective date of an agency action or to preserve status or rights pending conclusion of the review proceedings.
Regardless of the nature of the action or claim or of the identity of the party or parties bringing the action, no court (other than the Supreme Court) shall have jurisdiction or authority to enjoin or restrain the operation of the provisions of part IV of this subchapter, as amended by the Illegal Immigration Reform and Immigrant Responsibility Act of 1996, other than with respect to the application of such provisions to an individual alien against whom proceedings under such part have been initiated.
Neither the Supreme Court nor the Fifth Circuit have answered whether
Because neither the Supreme Court nor the Fifth Circuit have answered whether
The Fifth Circuit recently determined a district court may hold unlawful and set aside an agency action under Section 706 despite
Revisit
Unlike an injunction, a stay would not “order federal officials to take or to refrain from taking actions to enforce, implement, or otherwise carry out the specified statutory provisions” at issue. Aleman Gonzalez, 142 S. Ct. at 2065; see also Jonathan F. Mitchell, The Writ-of-Erasure Fallacy, 104 VA. L. REV. 933, 950-51, 1016 (2018) (“Preliminary relief under section 705 differs from a preliminary injunction, which blocks the executive from enforcing a law but does not
It would be “particularly dubious in light of the [Supreme] Court‘s caveats” to extend Aleman Gonzalez or
D. The Court May Stay the October 29 Memoranda under Section 705
Defendants argue
Whether the effective date of the October 29 Memoranda has passed is irrelevant to this Court‘s ability to issue a
The cases Defendants cite preclude agencies — not courts — from staying the effective date of agency actions after the effective date. Authorizing an agency to stay an already-taken action would allow the agency to evade notice-and-comment requirements. See, e.g., Ctr. for Biological Diversity, 2022 WL 971067, at *21 (“[I]t is one thing to permit an agency to stay an administrative decision pending judicial review in order to maintain the status quo, but something altogether different to alter the status quo without providing an opportunity for notice and comment.“). An agency‘s “order delaying [a] rule‘s effective date . . . [is] tantamount to amending or revoking a rule.” Clean Air Council v. Pruitt, 862 F.3d 1, 6 (D.C. Cir. 2017). The APA “mandate[s] that agencies use the same procedures when they amend or repeal a rule as they used to issue the rule in the first instance.” Perez v. Mortg. Bankers Ass‘n, 575 U.S. 92, 101 (2015). This includes the general requirement that rules be subject to notice-and-comment procedures.8
The limitation on agencies contrasts with courts’ inherent authority to stay agency action to facilitate judicial review. See Nken, 556 U.S. at 426; see also McQuiggin v. Perkins, 569 U.S.
postpone the effective date of an agency action or to preserve status or rights pending conclusion of the review proceedings.”
Just as vacating an agency action “does nothing but re-establish the status quo absent the unlawful agency action,” staying an agency action under Section 705 (even after the effective date) restores the same status quo ex ante. Texas, 40 F.4th at 220; see also Wages & White Lion Invs., 16 F.4th at 1144. The “status quo” to be restored is “the last peaceable uncontested status existing between the parties before the dispute developed.” CHARLES ALAN WRIGHT & ARTHUR R. MILLER, 11A FEDERAL PRACTICE & PROCEDURE § 2948 (3d ed. 2013) (cleaned up); see also Texas, 40 F.4th at 219 (stating relevant status quo is “status quo absent the unlawful agency action” (quoting Nken, 556 U.S. at 428)); Wages & White Lion Invs., 16 F.4th at 1144 (“[T]he status quo [is] the state of affairs before the” challenged agency action.). The “status quo” is thus the administration of MPP, the status before the Secretary issued the October 29 Memoranda. “In other words, ‘the relief sought here would simply suspend administrative alteration of the status quo.‘” Wages & White Lion Invs., 16 F.4th at 1144 (quoting Nken, 556 U.S. at 430 n.1).
E. A Stay Is Appropriate
“Motions to stay agency action pursuant to [Section 705] are reviewed under the same standards used to evaluate requests for interim injunctive relief.” Affinity Healthcare Servs., 720 F. Supp. 2d at 15 n.4; see also Texas, 829 F.3d at 435 (applying preliminary injunction factors). These factors require the movant to show: (1) a likelihood of success on the merits;
1. Plaintiffs are likely to succeed on the merits.
A court must “hold unlawful and set aside agency action” that is “arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law.”
Judicial review of agency action “is not toothless.” Sw. Elec. Power Co. v. EPA, 920 F.3d 999, 1013 (5th Cir. 2019). The agency must examine relevant data and articulate a satisfactory explanation for its action, including a “rational connection between the facts found and the choice made.” State Farm, 463 U.S. at 43 (quoting Burlington Truck Lines, Inc. v. United States, 371 U.S. 156, 168 (1962)). The agency must also consider reliance interests of those affected by a contemplated decision and consider less-disruptive policies given those interests. Dep‘t of Homeland Sec. v. Regents of Univ. of Cal., 140 S. Ct. 1891, 1913-15 (2020). In the immigration context, the agency‘s “approach must be tied, even if loosely, to the purposes of the immigration laws or the appropriate operation of the immigration system.” Judulang v. Holder, 565 U.S. 42, 55 (2011).
a. Defendants fail to adequately consider how using contiguous-territory return authority would allow them to avoid violations of the INA‘s detention mandate.
The October 29 Memoranda rely on incorreсt legal conclusions, including that “Section 1225 does not impose a near-universal detention mandate,” and that Section 1182(d)(5)(A)‘s parole authority permits DHS to parole nearly all aliens subject to Section 1225‘s mandatory-detention obligation. ECF No. 162 at 49-51. Under
Before terminating MPP, Defendants had to thoroughly consider the effect of the termination on mandatory-detention duties. Cf. Portland Cement Ass‘n v. EPA, 665 F.3d 177, 187
Terminating MPP lessened Defendants’ ability to detain all arriving aliens, as mandated by Congress. Although DHS may exercise its discretion and parole certain aliens on a “case-by-case basis,” the exercise of that discretion must “be reasonable and reasonably explained.” Biden III, 142 S. Ct. at 2548–49 (Kavanaugh, J., concurring); see also Biden III, 142 S. Ct. at 2543 (“DHS‘s exercise of discretion within that statutory framework must be reasonable and reasonably explained.“). That DHS may, on a “case-by-case basis,” parole some aliens rather than detaining them or returning them to Mexico, does not mean the October 29 Memoranda sufficiently explained why those aliens were paroled.
An assertion that “the Secretary did consider Section 1225(b)(2)(A)” does not adequately address the issue. ECF No. 163 at 37. The Secretary did consider
Section 1225 does not impose a near-universal detention mandate for all inadmissible applicants for admission either as a general matter оr conditionally where noncitizens are not returned to a contiguous territory. Section 1225 “does not mean” that every noncitizen “must be detained from the moment of apprehension until the completion of removal proceedings.” The INA provides DHS with latitude for processing noncitizens beyond returns or detention. DHS “may . . . in [its] discretion” release a noncitizen placed in
Section 1229a proceedings through “parole,” pursuant to8 U.S.C. § 1182(d)(5) “for urgent humanitarian reasons or significant public benefit.”
The Secretary‘s consideration does not — in and of itself — mean he adequately considered obligations imposed by
Defendants appear to base the renewed termination of MPP on arbitrary and capricious grounds by denying that
b. Defendants fail to adequately examine whether DHS‘s rescission of MPP causes it to violate the limits on its parole authority.
In the Explanation Memorandum, the Secretary relies on DHS‘s “parole” authority under
DHS‘s parole authority “is not unbounded.” Biden III, 142 S. Ct. at 2543. “DHS may exercise its discretion to parole applicants ‘only on a case-by-case basis for urgent humanitarian reasons or significant public benefit.‘” Id. (quoting
“Throughout the mid-twentieth century, the executive branch on multiple occasions purported to use the parole power to bring in large groups of immigrants,” so, “[i]n response, Congress twice amended
The Court previously found MPP‘s termination forced Defendants “to release and parole aliens into the United States because [Defendants] simply do not have the resources to detain aliens as mandated by statute.” ECF No. 94 at 17. And Defendants continue to do so. See ECF No. 143-1 at 4–5 (noting Defendants released 11,424 applicants for admission and released 72,611 applicants for admission, “whether paroled or otherwise,” in June 2022). The October 29 Memoranda attempt to justify Defendants’ actions by stating “the [parole] statute does not set any limit on the number of individuals DHS can decide to release on parole.” ECF No. 162 at 49. That may be true. But “the number of aliens paroled each month . . . gives rise to a strong inference that the Government is not really making these [parole] decisions on a case-by-case basis.” Biden III, 142 S. Ct. at 2554 (Alito, J., dissenting); see also Biden II, 20 F.4th at 997 (stating “the Government‘s proposal to parole every alien it cannot detain is the opposite of the ‘case-by-case basis’ determinations required by law“). The October 29 Memoranda also attempt to justify Defendants’ actions by relying on past DHS practice, claiming DHS has “long interpreted” its parole authority to enable it to simply parole aliens when it lacks sufficient detention capacity.10 ECF No. 162 at 50. Yet practice “does not, by itself, create power.” Medellin v. Texas, 552 U.S. 491, 532 (2008) (quoting Dames & Moore v. Regan, 453 U.S. 654, 686 (1981)); see also Judulang, 565 U.S. at 61 (“Arbitrary agency action becomes no less so by simple dint of repetition,” and “longstanding capriciousness receives no special exemption from the APA.“).
While an agency generally “has the authority to rely on rulemaking” to resolve “certain issues of general applicability,” Congress can withhold that authority. Lopez v. Davis, 531 U.S. 230, 243–44 (2001) (quoting Am. Hosp. Ass‘n v. NLRB, 499 U.S. 606, 612 (1991)). Congress did so when it passed the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 (“IIRIRA“) to cabin the executive branch‘s parole authority, believing the executive used that authority to evade congressionally mandated detention. Cruz-Miguel, 650 F.3d at 199 & n.15; see also Biden II, 20 F.4th at 947 (After “the executive branch on multiple occasions purported to use the parole power to bring in large groups of immigrants, . . . Congress twice amended
As for
Considering the above, the Court finds the October 29 Memoranda likely fail to adequately consider the relevant costs and benefits of MPP. Therefore, the Court finds the October 29 Memoranda are likely arbitrary and capricious in this fashion.
c. Defendants fail to adequately account for several key benefits of MPP.
The October 29 Memoranda fail to consider MPP‘s deterrent effect on illegal border crossings and the reduction of unmeritorious asylum claims. For example, the October 29 Memoranda extensively discuss conditions migrants face while they remain in Mexico. ECF No. 162 at 34–40. Yet the Memoranda do not mention the hardships aliens face
Defendants abandoned statistic-based decisionmaking for intuitional decisionmaking. See, e.g., ECF No. 162 at 45 (“In making his determination decision, the Secretary has presumed — as is likely — that MPP contributed to a decrease in migrant flows.” (emphasis added)). When MPP was first announced, DHS “observed that ‘approximately 9 out of 10 asylum claims from Northern Triangle countries are ultimately found non-meritorious by federal immigration judges.‘” Id. at 42–43. But when terminating MPP, the October 29 Memoranda acknowledge Defendants “do[] not have a record of the methodology used to generate this ‘9 out of 10’ statistic.” Id. at 43. Defendants implemented a policy change because, in their view, MPP led to too few asylum grants. Id. To support their conclusion, Defendants cite lower rates for granting asylum claims for those enrolled in MPP. Id. But Defendants fail to articulate why higher rates outside MPP are more accurate determinations than the lower rates for aliens enrolled in the program. Instead, Defendants conclude “[t]hese discrepancies strongly suggest that at least some MPP enrollees with meritorious claims either abandoned or were unable to adequately present their claims.” Id.
The October 29 Memoranda do not appear to demonstrate “a rational connection between the facts found and the choice made” to terminate MPP. State Farm, 463 U.S. at 43 (internal marks
Defendants also fail to consider MPP‘s impact on human trafficking. Cf. ECF 94 at 20. They instead focus on other crimes, including narcotics smuggling. ECF No. 162 at 47–48. Although the data Defendants cite for these crimes suggests a decline, several problems with the data exist. First, Defendants note “[t]hese declines have been driven by a substantial decrease in marijuana smuggling,” as “hard narcotics . . . are historically smuggled through ports of entry and thus have very little connection to MPP‘s implementation.” Id. at 47. Second, although Defendants state “[s]eizures of narcotics [are not] necessarily indicative of [human] trafficking activity,” they use this data to conclude there is no evidence of MPP‘s effect on human trafficking. Id.
By using irrelevant data, Defendants again fail to articulate “a rational connection between the facts found and the choice made.” State Farm, 463 U.S. at 43; see also Biden II, 20 F.4th at 992 (“We do not fault DHS for failing to provide a study. We fault DHS for cherry-picking a single statistic from the administrative record and relying on it in an entirely nonsensical fashion.“). The use of admittedly irrelevant data strongly evidences a lack of rational decisionmaking, as agencies “must examine the relevant data” — not just any data. State Farm, 463 U.S. at 43 (emphasis added).
The October 29 Memoranda provide no rational explanation why the increased rates of in absentia removals for aliens enrolled in MPP are not an indicator of MPP working. See ECF No. 162 at 22–23 (noting 32 percent of aliens enrolled in MPP were subject to in absentia orders of removal at some point during removal proceedings, whereas the rate was only 13 percent for aliens not processed through MPP during the same time period), 43 (stating MPP was “deterring non-meritorious claims“). The Court previously noted that “[a] higher rate of in absentia removal is consistent with DHS‘s [previous] findings that MPP reducеd the ‘perverse incentives’ to pursue meritless asylum applications.” ECF No. 94 at 40–41; see also ECF No. 162 at 41 (“The fact that in absentia removal order rates (and in absentia removal order rates plus termination rates) were considerably higher for MPP cases than for comparable non-MPP cases might not, by itself, indicate a problem with MPP.“); cf. ECF No. 162 at 43 n.89 (noting “implicit” in claim that MPP deterred aliens from asserting asylum claims, “many of which may be meritless” is that “some such claims do have merit” (emphasis removed)).
In the administrative record, DHS only addresses that fact by asserting MPP “deterred too many meritorious asylum claims at the expense of deterring non-meritorious claims.” ECF No. 162 at 43. And Defendants simply reiterate this claim in briefing. See id. The Court is unaware of any attempt by a federal actor to quantify, estimate, or show how many deterred meritorious asylum claims there are. DHS was under no obligation “to conduct or commission [its] own empirical or statistical studies” as a general matter. Prometheus Radio Project, 141 S. Ct. at 1160. But the failure to do so does not permit one to compare anecdotes that MPP deterred meritorious claims with hard numbers regarding the rate of in absentia orders, especially where the anecdotes and hard numbers are not clearly comparable. Thе anecdotes (while showing that some aliens
Accordingly, the Secretary fails to link the high in absentia removal rate for aliens enrolled in MPP with his claim that MPP deterred too many meritorious asylum claims compared to non-meritorious claims. So again, the failure to appreciate the relevant costs and benefits of MPP indicates Defendants failed to make a reasoned determination by considering all relevant factors.
e. Defendants fail to adequately consider costs to States and their reliance interests.
The October 29 Memoranda devote little consideration of the costs to States and their reliance interests. See ECF No. 162 at 46–48. Defendants noted aliens “received COVID-19 tests before crossing the border and entering the United States,” the Secretary “worked with nongovernmental organizations and local officials in border communities to connect migrants with short-term supports,” and the Secretary has taken actions to combat “criminal activity.” Id. at 46–47. Notably missing — however — are considerations of the greater short-term and long-term impacts on the States and any level of detail regarding the softening of those impacts. See id. at 46–48.
The Explanation Memorandum acknowledges “the termination of MPP could lead to an increased number of noncitizens without proper documentation in [Texas and Missouri], which
This case resembles Texas v. United States, where the Fifth Circuit determined the dеfendants overlooked both States’ costs and their reliance interests in federal immigration policies. See generally Texas v. United States, 40 F.4th 205 (5th Cir. 2022) (per curiam). Although the DHS memorandum at issue contained “a multi-page section . . . analyzing the ‘Impact on States,‘” the Fifth Circuit found the analysis “dismissive,” as it merely “dots ‘i‘s’ and crosses ‘t‘s’ without actually saying anything.” Id. at 228. By failing to “quantify or at least reasonably describe the costs of th[e] policy to the States” and making the “audacious[] conclu[sion] that ‘any effects from implementation of priorities guidance are unlikely to be significant,‘” the defendants did not satisfy the requirement that agencies consider the costs to the States. Id. (internal marks omitted).
Defendants also gloss over the States’ reliance interests. The October 29 Memoranda assert “the Secretary is unaware of any State that has materially taken any action in reliance on the continued implementation . . . of MPP” and state “any claimed reliance interest is undermined by the fact that [MPP] is itself discretionary.” ECF No. 162 at 48. In Department of Homeland Security v. Regents of the University of California, “the Supreme Court acknowledged that DACA was a discretionary program . . . [but still] faulted DHS for not considering reliance
Plaintiffs, particularly the State of Texas, shoulder much of the burden of unlawful immigration, which “must not be underestimated.” Arizona v. United States, 567 U.S. 387, 397–98 (2012). Texas is “a 900-mile border state.” Texas, 40 F.4th at 228. It cannot be that Texas “has no reliance interests in the enforcement of federal criminal immigration law.” Id. Giving short shrift to a relevant consideration “is not a substitute for considering it.” Getty v. Fed. Sav. & Loan Ins. Corp., 805 F.2d 1050, 1055 (D.C. Cir. 1986). In fact, the Fifth Circuit has recognized Plaintiffs’ reliance interests in MPP‘s continuation: “The Supreme Court has recognized that border states ‘bear[] many of the consequences of unlawful immigration.’ It therefore follows that a ‘potential reliance interest’ that DHS must consider includes Texas.” Biden, 10 F.4th at 553 (quoting Arizona, 567 U.S. at 397) (alteration in original).
By terminating MPP without adequately considering the reliance interests of States in control of the flow of aliens (as assisted by MPP), Defendants do not appear to have tied their
2. Plaintiffs will likely suffer irreparable harm without preliminary relief.
“To show irreparable injury” in lieu of a stay, “it is not necessary to demonstrate that harm is inevitable and irreparable.” Humana, Inc. v. Avram A. Jacobson, M.D., P.A., 804 F.2d 1390, 1394 (5th Cir. 1986). “The plaintiff need show only a significant threat of injury from the impending action, that the injury is imminent, and that money damages would not fully repair the harm.” Id. As the Court previously determined, “Plaintiffs have shown that they are suffering ongoing and future injuries as a result of the termination of MPP.” ECF No. 94 at 49. The same injuries giving rise to standing are relevant to the irreparable injury analysis. See Biden II, 20 F.4th at 1002 (factual findings regarding injury made in standing context show increased costs to States from termination of MPP, and inability to recover from federal government supports determination that States have suffered an irreparable injury for which remedies available at law are precluded due to sovereign immunity). Accordingly, Plaintiffs satisfy this factor.
3. The balance of equities tips in Plaintiffs’ favor and relief under Section 705 is in the public interest.
When considering the propriety of a Section 705 stay, the two final prongs “merge when the Government is the opposing party.” Nken, 556 U.S. at 435. The analysis of the public interest and the balance of the equities is the same regarding the new attempt to terminate MPP as it was when the Court last addressed these factors. See ECF No. 94 at 50. Defendants lack a legitimate
F. A Section 705 Remedy Need Not Be Geographically Limited
“In the context of immigration law, broad relief is appropriate to ensure uniformity and consistency in enforcement.” Texas, 40 F.4th at 229 n.18. Here, “[t]here is a substantial likelihood that a geographically-limited [remedy] would be ineffective,” as aliens would simply enter the United States through a non-party State. Id.
In any event, “[w]hen a reviewing court determines that agency regulations are unlawful, the ordinary result is that the rules are vacated — not that their application to the individual petitioners is proscribed.” Harmon v. Thornburgh, 878 F.2d 484, 495 n.21 (D.C. Cir. 1989). The text of
Based on the above, the Court GRANTS the Motion. The Court STAYS the October 29 Memoranda and corresponding decision to terminate MPP pending final resolution of the merits of this action. The Court DENIES all relief not expressly granted herein.
SO ORDERED.
December 15, 2022
MATTHEW J. KACSMARYK
UNITED STATES DISTRICT JUDGE