Case Information
United States District Court Southern District of Texas ENTERED August 19, 2021 UNITED STATES DISTRICT COURT Nathan Ochsner, Clerk SOUTHERN DISTRICT OF TEXAS VICTORIA DIVISION
The STATE OF TEXAS; and the §
STATE OF LOUISIANA, §
§
Plaintiffs, §
§ v. § Civil Action No. 6:21-cv-00016
§
The UNITED STATES OF AMERICA; §
ALEJANDRO MAYORKAS, Secretary §
of The United States Department of §
Homeland Security, in his official §
capacity; 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; U.S. CUSTOMS AND BORDER §
PROTECTION; TAE JOHNSON, Acting §
Director of U.S. Immigration and §
Customs Enforcement, in his official §
capacity; U.S. 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; and U.S. §
CITIZENSHIP AND IMMIGRATION §
SERVICES, §
§
Defendants. §
MEMORANDUM OPINION AND ORDER
“No matter how successful Congress might be in crafting a set of immigration laws
that would—in theory—lead to the most long-term benefits to the American people, such
benefits will not actually occur if those laws cannot be enforced.” S. Rep. No. 104-249, at
3 (1996). That observation comes from a Senate Judiciary Committee Report addressing
the problem of alien criminality in the United States. Similarly, the Supreme Court has
stated “deportable criminal aliens who remain[] in the United States often commit[] more
crimes before being removed.”
Demore v. Kim
,
Now, over two decades later, the States of Texas and Louisiana (the “States”) seek to have the Executive Branch (the “Government”) [1] adhere to two federal immigration statutes passed during that wholesale reform. The States want the Government to comply with 8 U.S.C. §§ 1226(c) and 1231(a)(2), which provide that the Government “shall” detain certain aliens when they are released from custody or during their removal period, respectively. [2] More specifically, the States move for a preliminary injunction to prohibit the Government from implementing two recent immigration memoranda which allegedly instruct Executive Branch officials to violate these laws. [3] (Dkt. No. 18).
These immigration memoranda, issued on January 20 and February 18, 2021 (the “Memoranda”), purport to “prioritize” certain categories of aliens for enforcement action. (Dkt. No. 1-1); (Dkt. No. 1-2). The States point out that the priority categories enumerated in these Memoranda omit certain others—namely, aliens convicted of serious drug offenses, aliens convicted of crimes of moral turpitude, and aliens subject to a final order of removal. The States argue that federal law requires the Government to take custody of aliens falling within these overlooked categories, and the Memoranda are grinding these required detentions to a halt. Unsurprisingly, the Government disagrees and argues that the Executive Branch is simply acting within its discretion.
This case involves the intersection of several areas of administrative and
immigration law. But more fundamentally, the claims made in this case implicate the
separation-of-powers framework set forth in our Nation’s Constitution. Put simply, the
Government has instructed federal officials that “shall detain” certain aliens means “may
detain” when it unambiguously mean
must
detain. Thus, the Court inquires whether the
Executive Branch may direct officials to enforce a law enacted by Congress in a way that
is contrary to the plain language of the law. That inquiry yields a clear answer: it may
not. The Executive Branch may not instruct its officers to enforce a statute in a manner
contrary to the law itself.
Util. Air Regul. Grp. v. EPA
,
Having considered the pleadings, the record, and the applicable law, the Court finds the States have satisfied the requirements for a preliminary injunction. Accordingly, the States’ Motion is GRANTED . [4]
I. BACKGROUND
At first glance, the background facts of this case are straightforward. The Government issued two memoranda concerning civil immigration enforcement which the States claim violate two immigration laws. But upon closer examination, the actions of the Government and the claims by the States are strikingly complex. Congress did not design our Nation’s immigration laws on a whim. Therefore, to place this case in its proper context and facilitate understanding of the function of Sections 1226(c) and 1231(a)(2), the Court begins by briefly detailing some of the history behind those statutes. [5] A. H ISTORY O F S ECTIONS 1226(C) A ND 1231(A)(2) The United States has long welcomed and benefited from immigration. [6] The
Nation has, however, borne costs due to illegal immigration and the criminal conduct of illegal aliens. See Juliet Stumpf, The Crimmigration Crisis: Immigrants, Crime, and Sovereign Power , 56 Am. U. L. Rev. 367, 380–81 (2006). Congress in the 1990s was not blind to those concerns. As a legislative report from 1995 mentions, “[a]lthough immigrants to the United States have been, and continue to be, predominantly hard working and law abiding, there appears to be a growing criminal class among immigrants, especially among those here illegally.” S. Rep. No. 104-48, at 7 (1995). Indeed, Congress directly linked illegal immigration with crime. The same legislative report provides:
The fact that many criminal aliens have entered the U.S.
illegally helps explain why so many aliens are involved in crime[.] [T]heir illegal situation conveys an “outlaw” status, often leading them into the shadowy realms of criminal lifestyles. The point was made succinctly in Congressional testimony by a former Commissioner of the INS, “[t]hose entering the United States illegally have no legitimate sponsors and are prohibited from holding jobs. Thus, criminal conduct may be the only way to survive.” at 5. Yet throughout much of its history, the United States had neither the means nor the ability to curb illegal immigration or alien criminality. Indeed, “[f]or much of this considered as findings of fact regardless of any heading or lack thereof. Similarly, the legal conclusions, except where the Court discusses the various competing legal theories and positions, should be taken as conclusions of law regardless of any label or lack thereof.
[6] See generally John F. Kennedy, A Nation of Immigrants (1958); Andrea Barton, Sitting on Ellis Island: The Fate of Disparate Immigration Policies in the Wake of the Guantanamo Bay Cases , 23 Notre Dame J.L. Ethics & Pub. Pol’y 233, 237 (2009).
country’s history there has been no comprehensive body of immigration law and no laws
at all addressing criminal aliens.”
Id.
at 10. Despite the enactment of the Immigration
and Nationality Act in 1952—and numerous immigration bills signed into law in the
subsequent decades—these issues were “dealt with . . . mostly as an afterthought.”
Id.
at
12. Prior to the 1990s, “no major immigration legislation ha[d] focused exclusively on the
problem of criminal aliens.”
Id.
And although there were attempts to solve the problem
of illegal immigration and alien criminality, change happened in a “piecemeal fashion.”
It is unsurprising, therefore, that the time leading up to the enactment of Sections
1226(c) and 1231(a)(2) has been regarded by the Supreme Court as a time of “wholesale
failure by [the Executive Branch] to deal with increasing rates of criminal activity by
aliens.”
Demore
,
Congress’s observations led to significant statutory reform in the federal detention
of criminal aliens. Following numerous reports about the high rate of abscondment and
recidivism among criminal aliens and the corresponding costs and negative effects,
“Congress enacted 8 U.S.C. § 1226, requiring the Attorney General to detain a subset of
deportable criminal aliens pending a determination of their removability.”
Demore
, 538
U.S. at 521,
The Attorney General shall take into custody any alien who— (A) is inadmissible by reason of having committed any offense covered in section 1182(a)(2) of this title, (B) is deportable by reason of having committed any offense covered in section 1227(a)(2)(A)(ii), (A)(iii), (B), (C), or (D) of this title,
(C) is deportable under section 1227(a)(2)(A)(i) of this title on the basis of an offense for which the alien has been sentence[d] [7] to a term of imprisonment of at least 1 year, or
(D) is inadmissible under section 1182(a)(3)(B) of this title or deportable under section 1227(a)(4)(B) of this title,
when the alien is released , without regard to whether the alien is released on parole, supervised release, or probation, and without regard to whether the alien may be arrested or imprisoned again for the same offense.
8 U.S.C. § 1226(c)(1) (emphases added) (footnote added). And to buttress this detention mandate, Congress in Subsection (2) provided detailed instructions on the narrow circumstances under which the Attorney General could release a detained illegal alien.
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) (emphases added).
Congress’s efforts to protect the states, citizens, and legal immigrants from criminal illegal aliens through the INA during the 1990s were not confined to Section 1226(c). Through other statutes, too, “Congress explicitly expanded the group of aliens subject to mandatory detention.” Zadvydas , 533 U.S. at 698, 121 S.Ct. at 2503 (citing Antiterrorism and Effective Death Penalty Act of 1996, § 439(c), 110 Stat. 1277; Illegal Immigration Reform and Immigrant Responsibility Act of 1996, Div. C, §§ 303, 305, 110 Stat. 3009–585, 3009–598 to 3009–599; 8 U.S.C. § 1226(c); and 8 U.S.C. § 1231(a)). That expansion is evident in 8 U.S.C. § 1231(a)(2), which outlines the Attorney General’s discretion regarding the detention of illegal aliens who have been ordered removed:
During 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 found inadmissible under section 1182(a)(2) or 1182(a)(3)(B) of this title or deportable under section 1227(a)(2) or 1227(a)(4)(B) of this title.
8 U.S.C. § 1231(a)(2) (emphases added).
In view of the historical context and text of Sections 1226(c) and 1231(a)(2), Congress designed these two provisions to curtail the effects of illegal immigration and the concomitant concerns of alien criminality. But, as the Senate Judiciary Committee Report mentioned earlier admits, these statutory policies are futile if the “laws cannot be enforced.” S. Rep. No. 104-249, at 3 (1996).
B. D ETENTIONS I N P RACTICE
Previously, in
Texas v. United States
, the Court provided an in-depth overview of
the immigration removal process. ____ F. Supp. 3d ____, ____,
To start, the Illegal Immigration Reform and Immigrant Responsibility Act of 1996, Pub. L. No. 104-208, 110 Stat. 3009-546, created a uniform procedure for deporting aliens or denying them entry into the United States. The detention and removal process under Section 240 of the Immigration and Nationality Act (“240 proceedings”) commences when DHS files a Notice to Appear (“NTA”) against an alien or noncitizen—who are designated as “respondents”—in immigration court. Matter of S-O-G- & F-D-B- , 27 I. & N. Dec. 462, 465 (2018); see 8 C.F.R. § 1003.14; Jennifer Williams, The Potential Implications of the Supreme Court’s Decision in Pereira v. Sessions on Prosecutions for Illegal Reentry Under 8 U.S.C. § 1326 , 67 DOJ J. Fed. L. & Prac. 141 (2019); see also (6:21-cv-3, Dkt. Nos. 82 at 12, 82-1 at 5, 83 at 14). Federal law then gives the Attorney General—and immigration judges by extension of DOJ’s internal organizational structure—discretion on whether such an alien may continue to be detained during the proceedings or released on bond or conditional parole pursuant to Section 1226(a). 8 U.S.C. § 1226(a).
For criminal aliens, however, the start of the process is a bit different. Such aliens are taken into custody by officers within the Executive Branch ( i.e. , Immigration and Customs Enforcement (“ICE”) agents) in generally three ways: an ICE arrest; in execution of detainers after a local police stop, see 8 C.F.R. § 287.7(a) (2011); or after completion of incarceration for a prior criminal conviction, see 8 C.F.R. § 287.5(c) (2016). See Gerard Savaresse, When Is When?: 8 U.S.C. § 1226(c) and the Requirements of Mandatory Detention , 82 Fordham L. Rev. 285, 302 (2013). Of the three, immigration detainers are particularly important:
The Executive branch uses immigration detainers to control the release of non-citizens from state prisons and local jails.
When federal immigration officials learn that a state or local law enforcement agency has custody of a non-citizen targeted for immigration proceedings or investigation, they issue a detainer to give notice to state or local officials that the federal government intends to take custody of the non-citizen upon release. The form detainer notice issued by federal immigration officials directs the recipient that federal regulations require the recipient agency to detain the non- citizen for a brief period of time after the non-citizen would otherwise be released from custody. [8] Absent the ability to issue detainers, immigration enforcement officials would have to be present at the gates of the state or local detention facility to apprehend the non-citizen upon release.
Christopher N. Lasch, Enforcing the Limits of the Executive’s Authority to Issue Immigration Detainers , 35 Wm. Mitchell L. Rev. 164, 165 (2008) (footnote added) (citations omitted). [9]
In the past, ICE and DHS have been known to “screen” state prison and local jail
populations for criminal aliens who may be subject to Section 1226(c).
Id.
at 177 (citing
U.S. Immigration and Customs Enforcement, Secure Communities: A Comprehensive
Plan to Identify and Remove Criminal Aliens (Mar. 28, 2008), not available online (Aug.
2, 2021)). This screening takes place, at least in some circumstances, without cooperation
from state and local authorities.
See, e.g.
,
State v. Reyes-Armenta
, No. M2004-00419-CCA-
R3-CD,
Once the alien is in mandatory custody pursuant to Section 1226(c), an NTA may be issued, formally beginning the immigration removal proceedings. Mark Noferi, Cascading Constitutional Deprivation: The Right to Appointed Counsel for Mandatorily Detained Immigrants Pending Removal Proceedings , 18 Mich. J. Race & L. 63, 83 (2012). Because certain criminal aliens are required to be detained, a Notice of Custody Determination (“Form I-286”) may also be issued. Id. (citing 8 C.F.R. § 231.1(g)(1) (2011)). The Form I-286 explains an ICE officer’s determination that an alien is subject to mandatory detention because the alien falls within certain categories of Section 1226(c). Id. For such aliens, “the NTA’s removal charge will commonly be the [Form I-286] charge justifying mandatory detention.” Id.
While in detention, the criminal alien is entitled to a “ Joseph hearing.” at 63, 85– 86; see Matter of Joseph , 22 I. & N. Dec. 799 (BIA 1999). The hearing is the detainee’s only chance to challenge the mandatory nature of his or her detention. Joseph , 22 I. & N. Dec. at 800; Noferi, supra , at 85–86; Savaresse, supra , at 303. The point of the Joseph hearing is to determine whether the detainee challenging mandatory detention was “properly included” within a mandatory detention category; that is, the categories enumerated in Section 1226(c). See Joseph , 22 I. & N. Dec. at 800; Savaresse, supra , at 303. If the detainee prevails, he or she is entitled to a bond determination. See Joseph , 22 I. & N. Dec. at 808– 09.
The detention process is similar for aliens with final orders of removal,
i.e.
, those
who exhausted the removal proceedings and were found to be deportable.
See
8 U.S.C.
§ 1231(a)(2). Criminal aliens who were initially detained under Section 1226(c) must
remain in ICE custody as their removals are processed.
See
8 U.S.C. §§ 1226(c)(2) and
1231(a)(2). As for the aliens with final orders of removal who are not currently in ICE
custody, ICE sends a “Bag-and-Baggage” letter requiring the aliens to report to an ICE
facility for detention and deportation.
Qian Gao v. Gonzales
,
C. T HE J ANUARY 20 M EMORANDUM
More than two decades after Congress changed the way this country approached the issues of illegal immigration and alien criminality, the current Administration set forth its views advocating a different approach from its predecessor. See Revision of Civil Immigration Enforcement Policies and Priorities, Exec. Order No. 13,993, 86 Fed. Reg. 7051 (Jan. 20, 2021) (“[The current] Administration will reset the policies and practices for enforcing civil immigration laws to align enforcement with [certain] values and priorities.” (emphasis added)).
Once the current Administration assumed power on January 20, 2021, it wasted no time issuing its first memorandum on civil immigration enforcement (the “January 20 Memorandum”). (Dkt. No. 1-1). The January 20 Memorandum, signed by Acting DHS Secretary David Pekoske, announced changes to the enforcement of the Nation’s immigration laws. (Dkt. No. 1-1). The January 20 Memorandum begins by acknowledging the current issues the federal government is encountering in enforcing immigration laws, noting the United States “faces significant operational challenges at the southwest border as it is confronting the most serious global public health crisis in a century.” ( Id. at 2). The January 20 Memorandum goes on to say, “in light of those unique circumstances,” DHS must substantially increase “resources to the border in order to ensure safe, legal and orderly processing, to rebuild fair and effective asylum procedures that respect human rights and due process, to adopt appropriate public health guidelines and protocols, and to prioritize responding to threats to national security, public safety, and border security.” ( Id. ) In Section A, the January 20 Memorandum calls for a “Department-wide review of policies and practices concerning immigration enforcement[.]” ( Id. at 3). In Section B, the January 20 Memorandum articulates “interim enforcement priorities [that] shall go into effect on February 1, 2021 and remain in effect until superseded by revised priorities developed in connection with the” Department- wide review. ( at 3–4). Pending completion of the Department-wide review, the January 20 Memorandum lists three DHS enforcement priorities:
1) National security. Individuals who have engaged in or are suspected of terrorism or espionage, or whose apprehension, arrest and/or custody is otherwise necessary to protect the national security of the United States.
2) Border security. Individuals apprehended at the border or ports of entry while attempting to unlawfully enter the United States on or after November 1, 2020, or who were not physically present in the United States before November 1, 2020.
3) Public safety. Individuals incarcerated within federal, state, and local prisons and jails released on or after the issuance of this memorandum who have been convicted of an “aggravated felony,” as that term is defined in section 101(a)(43) of the Immigration and Nationality Act at the time of conviction, and are determined to pose a threat to public safety.
( Id. at 3). The January 20 Memorandum then qualifies its prioritization scheme by stating, “[w]hile resources should be allocated to the priorities enumerated above, nothing in this memorandum prohibits the apprehension or detention of individuals unlawfully in the United States who are not identified as priorities herein.” ( Id. at 4).
In Section C, the January 20 Memorandum orders a temporary pause on removals of noncitizens, with some exceptions. [10] ( at 4–5). Specifically, the January 20 Memorandum directs “an immediate pause on removals of any noncitizen with a final order of removal . . . for 100 days[.]” ( Id. at 4). The January 20 Memorandum justifies this pause by pointing to DHS’s “limited resources,” which it claims “must be prioritized to . . . provide sufficient staff and resources to enhance border security and conduct immigration and asylum processing at the southwest border fairly and efficiently” and to “comply with COVID-19 protocols to protect the health and safety of DHS personnel and those members of the public with whom DHS personnel interact.” ( Id. ). Further, the January 20 Memorandum states, the pause is necessary for DHS to “ensure that [its] removal resources are directed to [its] highest enforcement priorities.” ( Id. ).
This Court partially enjoined the January 20 Memorandum on January 26 with a
temporary restraining order,
Texas v. United States
, ____ F. Supp. 3d ____,
D. T HE F EBRUARY 18 M EMORANDUM
On February 18, 2021, five days before the preliminary injunction was signed in Texas I , ICE Acting Director Tae D. Johnson issued the February 18 Memorandum to all ICE employees. (Dkt. No. 1-2). The February 18 Memorandum became “effective[] immediately” and controls to the extent it conflicts with the January 20 Memorandum. ( at 2). Designed to implement Section B of the January 20 Memorandum, [11] the February 18 Memorandum broadly delineates six “revisions”:
1) authorization to apprehend presumed priority noncitizens in at-large enforcement actions without advance approval;
2) the inclusion of current qualifying members of criminal gangs and transnational criminal organizations as presumed enforcement priorities;
3) authorization to apprehend without prior approval other presumed priority noncitizens who are encountered during enforcement operations;
4) how to evaluate whether a noncitizen who is not a presumed priority nevertheless poses a public safety threat and should be apprehended;
5) the further delegation of approval authority; and 6) the importance of providing advance notice of at-large enforcement actions to state and local law enforcement.
( Id. at 2–3).
Relevant to this case, the February 18 Memorandum lists three “criteria defining cases that are presumed to be priorities.” ( Id. at 5). The first priority category is national security.
A noncitizen is presumed to be a national security enforcement and removal priority if: 1) he or she has engaged in or is suspected of engaging in terrorism or terrorism-related activities; 2) he or she has engaged in or is suspected of engaging in espionage or espionage-related activities; or 3) his or her apprehension, arrest, or custody is otherwise necessary to protect the national security of the United States.
( ) (emphasis in original). The second priority category is border security.
A noncitizen is presumed to be a border security enforcement and removal priority if: 1) he or she was apprehended at the border or a port of entry while attempting to unlawfully enter the United States on or after November 1, 2020; or 2) he or she was not physically present in the United States before November 1, 2020.
( Id. ) (emphasis in original). And the final priority category is public safety.
A noncitizen is presumed to be a public safety enforcement and removal priority if he or she poses a threat to public safety and: 1) he or she has been convicted of an aggravated felony as defined in section 101(a)(43) of the INA; or 2) he or she has been convicted of an offense for which an element was active participation in a criminal street gang, as defined in 18 U.S.C.
§ 521(a), or is not younger than 16 years of age and intentionally participated in an organized criminal gang or transnational criminal organization to further the illegal activity of the gang or transnational criminal organization.
( Id. at 5–6) (emphasis in original).
In addition to the three enforcement priorities, the February 18 Memorandum explains, “[o]fficers and agents need not obtain preapproval for enforcement or removal actions that meet the above criteria for presumed priority cases”— i.e. , the three enforcement priorities—“beyond what existing policy requires and what a supervisor instructs.” ( Id. at 6). By contrast, preapproval is required for enforcement or removal actions that do not fall under the three enforcement priorities. ( Id. at 7). But there are certain exceptions. The February 18 Memorandum, for example, posits that there are circumstances when “the demands of public safety will make it impracticable to obtain preapproval for an at-large enforcement action.” ( Id. ). But this is “generally . . . limited to situations where a noncitizen poses an imminent threat to life or an imminent substantial threat to property.” ( ).
E. P ROCEDURAL B ACKGROUND
The States filed this case on April 6, 2021. (Dkt. No. 1). In its six-count Complaint, the States allege the January 20 and February 18 Memoranda are unlawful because they violate:
1) the Administrative Procedure Act’s (“APA”) proscription of actions that are “not in accordance with law” and “in excess of . . . authority” by transgressing a statutory duty of DHS to detain certain individuals pursuant to 8 U.S.C. § 1226(c) (Count I) and 8 U.S.C. 1231(a)(2) (Count II); [12]
2) the APA’s proscription of actions that are “arbitrary [and] capricious” (Count III); [13]
3) the APA’s requirement that agency rules be subject to notice and comment (Count IV); [14]
4) the Agreement between the States and DHS (Count V); [15] and 5) the Constitution’s requirement that the President “take Care that the Laws be faithfully executed” (Count VI).
(Dkt. No. 1 at ¶¶ 94–131).
On April 27, 2021, the States filed a Motion for Preliminary Injunction moving to enjoin the implementation and enforcement of the January 20 and February 18 Memoranda. (Dkt. No. 18 at 43). The Government filed a Response in opposition, (Dkt. No. 42), to which the States filed a Reply. (Dkt. No. 51). Several amicus briefs have also been filed in support of and in opposition to the Motion. (Dkt. No. 25); (Dkt. No. 48); (Dkt. No. 49). The Motion is now ripe for review.
II. JURISDICTION AND JUDICIAL REVIEW
Before addressing the merits, this Court must consider the threshold issues of whether the States have standing to bring this action and whether the APA allows this Court to review the Memoranda challenged by the States. The States contend they have standing, and their claims are reviewable. (Dkt. No. 18 at 35–40). The Government disagrees. (Dkt. No. 48 at 22–36). Based on the following, the Court finds the States have standing and their claims are reviewable.
A. S TANDING
Article III of the Constitution confines judicial power to “Cases” and
“Controversies.” U.S. Const. art. III, § 2. “For a legal dispute to qualify as a genuine case
or controversy, at least one plaintiff must have standing to sue.”
Dep’t of Com. v. New
York
, ____ U.S. ____, ____,
Under certain circumstances, states like Texas and Louisiana are not “normal
litigants.”
Massachusetts v. EPA
,
Here, the States assert they have standing under the traditional inquiry and because they are owed special solicitude. (Dkt. No. 18 at 35–37). The Government counters that the States fail all three prongs of the traditional inquiry, and they are not entitled to special solicitude because they do not assert a proper quasi-sovereign interest. (Dkt. No. 42 at 22–25 & n.5). Based on the following, the Court finds the States have satisfied the traditional inquiry and, regardless, are owed special solicitude which would satisfy any doubts.
1. Injury in Fact
The States’ first task is to establish an injury in fact. A plaintiff satisfies that burden
where it shows it suffered “an invasion of a legally protected interest” that is “concrete,”
“particularized,” and “actual or imminent, not conjectural or hypothetical.”
Spokeo
, 578
U.S. at ____,
The States assert the Memoranda will injure two basic interests: their financial interests and their interest as parens patriae in protecting their citizens from criminal aliens. (Dkt. No. 35–37). As it pertains to their financial interests, the States claim the Memoranda will require them to spend more on detention facilities and several public benefits and services. ( Id. at 35–36). Regarding the States’ interest as parens patriae , the States allege the Memoranda will result in an increase in crime from aliens within their borders, thus harming their citizenries’ physical and economic well-being. ( at 37).
The Government does not seriously refute the Memoranda will result in “a drop” in immigration enforcement actions. (Dkt. No. 42 at 23). Nor could it. For example, Texas has put forth undisputed evidence that, during just the first two months following the issuance of the January 20 Memorandum, ICE rescinded detainers for 68 aliens housed within Texas’s detention facilities. (Dkt. No. 19-3 at 5). That’s 68 more rescinded detainers than during the same period the year prior. ( Id. at 3, 8) (showing no detainers were dropped from January 20, 2020, to March 20, 2020). Of note, the list includes aliens who were convicted of possessing over fifty pounds of a narcotic, manufacturing over 400 grams of methamphetamine, theft, intoxication assault with a vehicle, and the sexual assault of a child. ( at 6–7). And at least six had received a final order of removal. ( Id. at 5). Importantly, current ICE officials “attribute” the Government’s sharp decline in maintaining detainers “to the new ‘enforcement priorities’ established by the [M]emoranda during the Biden Administration.” [16] (Dkt. No. 46 at ¶ 17).
Rather than challenge the suffocating effect of the Memoranda on federal detentions of criminal aliens, the Government counters that any drop in detentions is of no real consequence to the States. It argues, even if the Memoranda cause detentions to decline, the States’ theories of injury rely on a “speculative chain of events involving independent actions by third parties.” (Dkt. No. 42 at 23). Specifically, the Government asserts the States would incur increased financial expenses and exposure to crime only if two conditions are satisfied: (1) the aliens who would have otherwise been detained commit crimes or choose to use public benefits and services; and (2) those aliens do so at a higher rate than the noncitizens who are removed as a result of the Memoranda. ( at 23–24).
The Government’s concern over the causal chain of events involving third-party
action is noteworthy but out-of-turn. These concerns pertain to the “fairly traceable”
prong of the traditional standing inquiry.
See Dep’t of Com.
, ____ U.S. at ____, 139 S.Ct. at
2565–66 (finding “traceability . . . satisfied” where the plaintiffs’ theory “relies . . . on the
predictable effect of Government action on the decisions of third parties”);
Texas DAPA
,
a. Financial Injuries Between the States, Texas marshals the lion’s share of state-specific evidence concerning injury. Compare (Dkt. Nos. 19-5–19-9) with (Dkt. No. 19-12). The Court therefore focuses its attention on Texas’s evidence. See Texas DAPA , 809 F.3d at 155 (same). Texas’s alleged financial injury affects three categories of its public fisc: Texas’s detention system, public education services, and healthcare-related costs. (Dkt. No. 18 at 35–36). Texas asserts that in these three categories it will incur unanticipated costs due to the “rushed implementation” of the Memoranda which “deprived [it] of the ability to adjust[] [its] policies in light of the federal shift.” ( at 41).
To begin, Texas has alleged injury to a legally protected interest.
See Spokeo,
578
U.S. at ____,
The remaining inquiries as to Texas’s alleged financial injury concerns whether it
is sufficiently concrete, particularized, and actual or imminent.
Spokeo
,
Texas asserts a financial injury in the form of added costs to its detention system.
Texas states the Memoranda will lead to an unanticipated rise in criminal activity from
aliens the federal government would otherwise detain. (Dkt. No. 18 at 15–16, 35–36). On
average, Texas spends $62.34 per day per inmate in its detention facilities. (Dkt. No. 19-
6 at 3–4). In 2018, Texas detained 8,951 criminal aliens for a total of 2,439,110 days, costing
$152,054,117.
[17]
(
Id.
). If even one alien not detained due to the Memoranda recidivates,
Texas’s costs “will increase” in accordance with its current cost per inmate. ( at 4);
cf. Dep’t. of Com.
, ____ U.S. at ____,
The Court finds Texas’s claimed injury from unanticipated detention costs is sufficiently concrete and imminent. The harm is concrete because Texas incurs real financial costs in detaining criminal aliens. And the harm is imminent because Texas currently operates a detention system holding criminal aliens and plans to continue doing so in the future. [18]
b. Parens Patriae Injury In addition to its financial injury, the States assert they have been injured in their interests as parens patriae . (Dkt. No. 18 at 37). The Government counters that the States are precluded from bringing a parens patriae action against the federal government. (Dkt. No. 42 at 24 & n.5). Based on the following, the Court concludes the States properly lay claim to a parens patriae injury.
“
Parens patriae
means literally ‘parent of the country.’”
Alfred L. Snapp & Son, Inc.
v. Puerto Rico, ex rel., Barez
,
Once vested in the states, the scope of a
parens patriae
action under American law
“greatly expanded.”
Hawaii
,
Perhaps unsurprisingly, the concept of a
parens patriae
action to vindicate the rights
of a state’s citizens-at-large proved popular.
See id.
at 603,
But lending this workable term to the abstract concept of a state’s interest in its
citizenry did not resolve all questions regarding
parens patriae
standing. Namely, the
referent “quasi-sovereign interest,” without more, proved useless in settling whether a
state’s injury is sufficiently “concrete” for purposes of Article III standing.
Id.
After all,
a quasi-sovereign interest itself is nothing more than a “judicial construct” that does “not
lend itself to a simple or exact definition.”
Id.
at 601,
Recognizing this concreteness issue, the Supreme Court in Alfred L. Snapp & Son took it upon itself to hammer out, as best it could, the notion of a quasi-sovereign interest. 458 U.S. 592, 102 S.Ct. 3260. While at once conceding that “the articulation of such interests is a matter for case-by-case development,” the Supreme Court nevertheless provided “two general categories” into which characteristics of a true quasi-sovereign interest may fall.
“First, a State has a quasi-sovereign interest in the health and well-being—both physical and economic—of its residents in general. Second, a state has a quasi-sovereign interest in not being discriminatorily denied its rightful status within the federal system.” Id. at 607, 102 S.Ct. at 3269. Regarding the first category, the Supreme Court further elaborated, “[o]ne helpful indication in determining whether an alleged injury to the health and welfare of its citizens suffices to give the state standing to sue as parens patriae is whether the injury is one that the state, if it could, would likely attempt to address through its sovereign lawmaking powers.” Id. And regarding the latter, the Supreme Court explained, “federal statutes creating benefits or alleviating hardships create interests that a State will obviously wish to have accrue to its residents.”
Building on this rubric, the Fifth Circuit has concluded that a state’s claim to a
“quasi-sovereign” interest for standing purposes is sufficient when the state seeks to
“protect[] its citizens from criminal activity.”
Castillo v. Cameron County
,
Bearing these principles in mind, the Court now turns to the States’ basis for
parens
patriae
standing in this case. The States assert a quasi-sovereign interest in protecting
their citizens’ physical and economic well-being “from crime caused by [the
Government’s] failure to detain criminal aliens.” (Dkt. No. 18 at 37). As it pertains to
“criminal activity” in general,
Castillo
resolves that the States here possess a quasi-
sovereign interest in protecting their citizens.
As it pertains to the criminal activity of “aliens” specifically, the States’ interests
are perhaps stronger than the circumstances presented in
Castillo
. Whereas in
Castillo
the
State of Texas sought to protect its citizens from criminal activity in an area of law over
which the State retained extensive authority—the procedure for detaining alleged parole
violators—here the States retain
no
authority over the detention of criminal aliens upon
their release from state prison and during the pendency of their removal proceedings.
That is, the injury to the States’ quasi-sovereign interest in protecting their citizens from
criminal aliens is especially severe here because the States’ hands are tied, in effect, when
it comes to federal immigration policy.
See
U.S. Const. art. I, § 8, cl. 4 (conferring upon
Congress the Power “[t]o establish an uniform Rule of Naturalization”);
Arizona
, 567 U.S.
at 394–95,
By seeking relief for an injury to their populace from which they have no
constitutional mode of recourse, the States align themselves with the rationale employed
by the Supreme Court to support the first expansion of
parens patriae
standing in
Louisiana
v. Texas
. Just as Louisiana once sought “vindication of the freedom of interstate
commerce” that was “not committed” to it by the Constitution, here the States seek
protection from an effect of a federal immigration policy that the States possess no
constitutional authority to change.
[19]
Louisiana
,
The Government contends that the States nevertheless are barred from bringing a
parens patriae
action “against the federal government.” (Dkt. No. 42 at 24). For this
proposition the Government relies exclusively upon
Massachusetts v. Mellon
, where the
Supreme Court denied
parens patriae
standing to a state suing the federal government to
protect its citizens from the “operation of” a federal statute called the Maternity Act. 262
U.S. 447, 479, 485–86,
have applied or mirrored the Supreme Court’s careful circumscription of
Mellon
to hold
that a state may bring a
parens patriae
action against the federal government where it does
not challenge the operation of a federal statute and it asserts a proper right.
See, e.g.
,
Texas
v. United States
,
The
parens patriae
injury set forth by the States safely navigates this well-trodden
distinction from the
Mellon
rule. The States do not challenge the operation of any federal
statute. Rather, they primarily challenge the Executive Branch’s putative refusal to
enforce certain immigration statutes which, they claim, should benefit their citizenries.
(Dkt. No. 1 at 21–24). The States allege that the Executive Branch’s policy of non-
enforcement infringes upon rights they derive from the APA. ( at 21–27). Specifically,
the States claim that the federal government’s policy creating a categorical refusal to
enforce certain immigration statutes is an unlawfully withheld agency action, contrary to
law, arbitrary and capricious, procedurally defunct, and constitutionally injurious. By
asserting these federal statutory rights, the States have not presented this Court with
“abstract questions of political power.”
Cf. Mellon
,
2. Traceability
The States must next establish a “fairly traceable link” between their injuries and
the Government’s allegedly unlawful action. They can establish this link with “no more
than
de facto
causality.”
Dep’t of Com.
, ____ U.S. at ____,
Both States’ injuries depend on the future behavior of criminal aliens whom the Government would otherwise detain. Regarding Texas’s detention costs injury, the States argue the Memoranda will cause a significant number of criminal aliens who otherwise would have been detained by the federal government to be detained again or longer in Texas. (Dkt. No. 18 at 16, 18, 35–37). Regarding the States’ parens patriae injury, the States urge that the Memoranda will lead to a significant number of criminal aliens who would otherwise have been detained by the federal government causing harm— both physical and economic—to their respective citizenries. ( Id. at 37). Thus, at their core, both States’ injuries depend upon criminal aliens behaving unlawfully in the future.
The Government contends that whether the aliens who would have otherwise been taken into custody will commit crimes is speculative. (Dkt. No. 42 at 23). The Government further contends that, even if the States can make this showing, they must also prove that those aliens would commit crimes at a higher rate than the aliens who are removed because of the Memoranda. ( ).
Regarding the Government’s first concern, the Supreme Court has traditionally
denied standing wherever the traceable link between the government’s action and the
plaintiff’s injury depends in part on the future behavior of third parties.
See Clapper v.
Amnesty Int’l USA
,
That said, the Supreme Court embraces standing theories dependent on third
parties’ future behavior under certain circumstances. In
Department of Commerce
, for
instance, the Supreme Court traced a governmental action to aliens’ future unlawful
behavior where evidence established a likelihood that aliens have “historically” behaved
in a certain manner. ____ U.S. at ____, 139 S.Ct. at 2566. This type of evidence, the
Supreme Court concluded, demonstrated that traceability was not “mere speculation,”
but rather, the product of a “predictable effect of Government action on the decisions of
third parties.” (citations omitted). Similarly, in
Davis v. Federal Election Commission
,
the Supreme Court traced a governmental action to the future behavior of the plaintiff’s
political opponent where evidence showed that “most candidates” had behaved in a
certain manner and there was “no indication” the opponent would do otherwise. 554
U.S. at 734–35,
Considering this principle, the link between the States’ alleged harm and the Memoranda is virtually unassailable. As mentioned, the undisputed evidence demonstrates that the Memoranda are already causing a dramatic increase in the volume of criminal aliens released into the public. The States further present evidence suggesting that criminal aliens, as a group, have a strong propensity to recidivate. (Dkt. No. 18 at 15–16). Indeed, the States submit evidence from a Texas Sheriff’s Office showing that a group of 209 recently held criminal alien inmates with detainers had a recidivism rate of 73.68%. (Dkt. No. 19-5 at 3). The States also submit a 2018 study from the United States Department of Justice’s Bureau of Justice Statistics showing that state offenders generally recidivate at 44% within the first year following release, 68% within the first three, 79% within the first six, and 83% within the first nine. (Dkt. No. 19-20 at 1). And these weren’t one-time recidivists. The same study shows, during the nine-year period following release, there were on average five arrests per released prisoner . ( Id. ).
This foregoing evidence confirms what the Supreme Court and Congress have
long acknowledged: “deportable criminal aliens who remain[] in the United States often
commit[] more crimes before being removed.”
Demore
,
These facts and precedents should come as no surprise to the Government. Congress and the Executive have long provided financial aid to states to ameliorate the strain criminal aliens place on state detention facilities. Through the State Criminal Alien Assistance Program (“SCAAP”), the federal government partially reimburses states for costs associated with detaining criminal aliens. [20] (Dkt. No. 19-2 at 2–4). For example, in 2018 the federal government through SCAAP reimbursed Texas $14,657,739 of the total $152,054,117 Texas spent on detaining criminal aliens. ( at 4). Although amounting to less than 10% of Texas’s actual costs in 2018, SCAAP payments demonstrate that the federal government has long acknowledged that states like Texas incur financial harm as a direct result of the unlawful behavior of criminal aliens.
In sum, the States present evidence of criminal alien and state felon recidivism
through a Texas Sheriff and the DOJ’s own dataset, Supreme Court precedent citing the
congressional record making similar findings as to criminal aliens, and the existence of
the SCAAP program. Considering this substantial evidence, the Court is not persuaded
that the link between the States’ injuries and criminal aliens being released is
“speculative” as the Government suggests. The Court finds that criminal aliens
“historically” recidivate.
See Dep’t of Com.
, ____ U.S. at ____,
Next, the Government asserts that the risk of criminal aliens committing further crimes is insufficient for the States to trace their injuries to the Memoranda. (Dkt. No. 42 at 23). Rather, the Government hypothesizes that “it is possible” the Memoranda’s reprioritization “will result in a net reduction in crimes.” ( ). This argument fails in three respects.
First, evidence already in the record demonstrates that the Government is not just refusing to detain its newly deprioritized categories of criminal aliens, but even the “prioritized” variety. For instance, in Texas alone, some of the 68 individuals whose detainers were dropped were serving time for an “aggravated felony,” a supposedly prioritized category. Compare (Dkt. No. 19-3 at 6–7) with 8 U.S.C. § 1101(a)(43) (defining “aggravated felony” under the INA).
Second, the Government provides no support for its contention that its enforcement of the prioritized categories of criminal aliens will exceed any decline in enforcement of the deprioritized categories. The Government’s subjective belief cannot overcome the States’ evidence demonstrating to the contrary.
Finally, even if the Government could demonstrate that increased enforcement in the prioritized categories might displace a drop in the total number of detained aliens resulting from the deprioritized categories, this “offset” would be irrelevant as a matter of law. The “standing analysis is not an accounting exercise.” Texas DAPA , 809 F.3d at 156 (internal quotation omitted). Absent a “tight[] nexus” between the alleged “benefits” and the “costs” of the Memoranda, there can be no “offset.” Here, other than what it noted in the Memoranda, the Government makes no showing that the resources it previously used for enforcement of the deprioritized categories are now being allocated to boost enforcement of the prioritized categories. And the evidence put forward by the States regarding a drop in enforcement actions—even for prioritized aliens—makes that “possibility” unlikely. Accordingly, there is no connection between the results of enforcement of prioritized categories and the results of enforcement of deprioritized categories.
The Court further notes that the number of aliens who would otherwise be detained in the entire United States is relevant to estimating the impact of the Memoranda on the States in this case. The Fifth Circuit made clear in Texas DAPA that injury to a state can flow from the fact that aliens are “free to move among states.” 809 F.3d at 188. Indeed, the States proffer evidence showing that “more than 50,000 noncitizens moved into Texas from another U.S. State in 2019.” (Dkt. No. 18 at 42) (citing Dkt. No. 19-21); see also (Dkt. No. 51 at 35) (citing Dkt. Nos. 19-21–19-23). Given the Fifth Circuit’s acknowledgement of this interstate migration principle and the data provided by the States, the prospect that criminal illegal aliens falling within the deprioritized categories of the Memoranda who are not detained elsewhere in the Nation could move to the States’ territories—thereby amplifying their injuries—is not mere “conjecture,” as the Government posits. See (Dkt. No. 42 at 61).
Considering the foregoing, the Court holds that the States have established a traceable link between their injuries and the challenged Memoranda. The Memoranda are already leading to an increased volume of criminal aliens released into Texas who otherwise should have been detained by the federal government. Criminal aliens and state offenders have a demonstrable propensity to recidivate. The Memoranda will therefore cause a traceable injury to the States’ financial and parens patriae interests.
3. Redressability
The States must next demonstrate that their requested relief would remedy their
harm. The “redressability” element of the standing to sue doctrine requires a plaintiff to
demonstrate “a substantial likelihood that the requested relief will remedy the alleged
injury in fact.”
El Paso Cnty. v. Trump
,
The States request two forms of injunctive relief. First, they ask this Court to restrain the Government from “enforcing and implementing the policies described” in Section B of the January 20 Memorandum and the February 18 Memorandum. (Dkt. No. 18-1 at 2). This Court will refer to this requested relief as the “negative injunction.” Second, the States ask this Court to order the Government to comply with “the mandatory duty” to “take into custody” and “detain” aliens covered by 8 U.S.C. §§ 1226(c)(1) and 1231(a)(2), respectively, and to “refrain from releasing” aliens covered by Section 1226(c)(1) except as permitted by Section 1226(c)(2). ( ). The Court will refer to this requested relief as the “positive injunction.” The positive injunction relates directly to the States’ Count I claim that the Government is “unlawfully withholding and unreasonably delaying agency action” pursuant to 5 U.S.C. § 706(1). (Dkt. No. 1 at 23). The States further seek to implement both the negative and positive injunctions nationwide. (Dkt. No. 18-1 at 2).
Assuming, as the Court must for purposes of standing, that the States are “correct on the merits of [their] claims,” either form of requested relief is substantially likely to remedy the States’ alleged injuries. Texas v. EEOC , 933 F.3d 433, 447 (5th Cir. 2019). Regarding the requested positive injunction, it is perhaps self-evident that an order compelling the federal government to take criminal aliens into custody and detain them pursuant to the relevant statutes would relieve the States from harm they anticipate from the criminal behavior of criminal aliens. Requiring an agency action, the withholding of which is causing injury, will logically alleviate that injury. Notably, the Government offers no clear argument to the contrary regarding the benefit of a positive injunction. (Dkt. No. 42 at 25).
But even if the Court were to grant only the requested negative injunction, then, too, the States are substantially likely to obtain reprieve. Namely, the federal government would be required to act in conformance with the standards set by Congress in Sections 1226(c) and 1231(a)(2) as interpreted by this Court. The Government does not quibble with the notion that, under Congress’s standards, the States’ injuries would be redressed. Rather, the Government argues that, if the Memoranda are enjoined, the States are unable to show that “the resulting prioritization scheme ” will “result in a decrease in crime levels” within the States’ boundaries. (Dkt. No. 42 at 25) (emphasis added). The Government’s argument misses the mark for two reasons.
First, this argument suggests the Memoranda were issued in a vacuum in which no prior policy concerning the detention of criminal aliens ever existed. Of course, such a suggestion is demonstrably false: the Government’s own affidavits demonstrate that the United States has “had policies guiding such exercise since as early as 1909.” (Dkt. No. 42-6 at 6); (Dkt. No. 42-5 at 8).
Second, the Court’s concern over redressability in an APA case such as this cuts
not to the executive-level policy which would be applied in the absence of the faulty one,
but rather, whether
Congress
’s express standards—both for the immigration laws
challenged and the procedural standards allegedly discarded—if followed, would
provide the States recourse.
See Texas DAPA
,
Accordingly, the Court finds that, regardless of which form it takes, the injunctions sought by the States would redress their injuries flowing from the Memoranda. The States have standing under the traditional inquiry.
4. Special Solicitude
Even if the States could not satisfy the traditional standing inquiry, they are
entitled to special solicitude which also enables them to satisfy the standing requirement.
The Supreme Court in
Massachusetts v. EPA
determined that states are owed special
solicitude wherever they assert a congressionally bestowed procedural right and the
governmental action at issue affects the state’s quasi-sovereign interests.
The States are likewise owed special solicitude here. The States seek judicial review of immigration policy memoranda which they allege constitute final agency action, and they assert that the resulting policies cause injury to Texas’s public fisc because its budget for detention facilities “has been set months or years in advance.” (Dkt. No. 18 at 41). Additionally, and as discussed above, the States have shown they possess a quasi-sovereign interest in protecting their citizenries from the unlawful activity of criminal aliens. The Government’s sole argument in opposition is that special solicitude still requires an injury in fact. (Dkt. No. 42 at 24–25 n.7). But this argument falls short because, as detailed in this Memorandum Opinion and Order, see supra II.A.1., the States have demonstrated an injury in fact. Accordingly, the States have satisfied their burden to demonstrate they are entitled to special solicitude in the standing inquiry.
In
Massachusetts
, a state armed with special solicitude was permitted to establish
causation between the EPA’s decision not to regulate certain greenhouse gas emissions
and the state’s interest in protecting its physical territory.
B. J UDICIAL R EVIEW
The Court must next determine whether the States’ claims are reviewable before
turning to the merits of the Motion.
Lexmark
,
1. Statutory Bars to Judicial Review
Under the APA, an action may not proceed when another statute precludes judicial review. 5 U.S.C. § 701(a)(1). With respect to immigration, Congress enacted “many provisions . . . aimed at protecting the Executive’s discretion from the courts[.]” Reno v. Am.-Arab Anti-Discrimination Comm. , 525 U.S. 471, 486, 119 S.Ct. 936, 945, 142 L.Ed.2d 940 (1999). Banking on this, the Government contends that Sections 1252, 1231(h), and 1226(e) protect the Executive Branch’s discretion from the States’ claims before this Court. (Dkt. No. 42 at 30–35). The Court will address each in turn.
First, the Government makes the same arguments it articulated in
Texas I
that 8
U.S.C. § 1252(a)(5) and (b)(9) bar judicial review of the States’ APA claims. ( at 30–31);
see also
(6:21-cv-3, Dkt. No. 83 at 27).
[22]
The States disagree arguing that the provisions are
irrelevant to this case because they apply “only with respect to review of an order of
removal under subsection (a)(1).” (Dkt. No. 51 at 27–28) (quotations omitted). As in
Texas
I
, the Court agrees with the States and incorporates by reference its decision on the issue
in that case. ____ F. Supp. 3d at ____,
Next, the Government, again repeating its stance in
Texas I
, argues that any of the
States’ claims brought under Section 1231 are precluded from judicial review by
Subsection (h). (Dkt. No. 42 at 34);
see also
(6:21-cv-3, Dkt. No. 83 at 30–32). Section
1231(h) provides that “[n]othing in this section shall be construed to create any
substantive or procedural right or benefit that is legally enforceable by any party against
the United States or its agencies or officers or any other person.” 8 U.S.C. § 1231(h). In
this case, the Government rehashes its prior argument in
Texas I
that the meaning of
“party” in Section 1231(h) includes the States. This time around, it argues that because
Black’s Law Dictionary defines the word “party” as “one by or against whom a lawsuit
is brought,” the Court was in error when it concluded that “party” in that section
narrowly means “alien in a removal proceeding.” ( at 34–35);
see also Texas I
, ____
F. Supp. 3d at ____,
Although the Government is correct in arguing that “party” may have a broad
dictionary definition, statutory construction is more complex. On the surface, the plain
meaning of “party” in Section 1231(h)—even when accounting for the dictionary
definition—could refer to (1) any party
to the removal proceedings
or (2)
any
party to
any
proceeding.
See Texas I
, ____ F. Supp. 3d at ____,
Lastly, the Government contends that Section 1226(e) bars the States’ claims as they relate to Section 1226(c). (Dkt. No. 42 at 32–33). Section 1226(e) provides:
The Attorney General’s discretionary judgment regarding the application of this section shall not be subject to review. No court may set aside any action or decision by the Attorney General under this section regarding the detention or release of any alien or the grant, revocation, or denial of bond or parole.
8 U.S.C. § 1226(e). The Government insists that determinations under Section 1226(c) are discretionary because the federal government “may detain a noncitizen under § 1226— under either subsection (a) or subsection (c)—only ‘pending a decision’ on removal.” (Dkt. No. 42 at 32). According to the Government, “[d]etention authority is thus contingent on the Secretary’s separate, predicate, and discretionary decision to commence removal proceedings in the first instance, by issuing a notice to appear.” ( Id. ) (citations omitted).
Voicing their disagreement, the States allege that Subsection (e) is irrelevant to the action since it applies only to discretionary decisions to detain individual aliens and not to lawsuits on the Government’s detention authority. (Dkt. No. 18 at 39); (Dkt. No. 51 at 28). And because Section 1226(c) imposes a mandatory duty to detain, as the States argue, it follows that Section 1226(e) does not apply to Subsection (c). ( ); see infra II.B.3.a. The Court agrees with the States.
The Supreme Court has clearly stated that Subsection (e)’s limitation “applies only
to ‘discretionary’ decisions about the ‘application’ of § 1226 to
particular cases
.”
Preap
,
____ U.S. at ____,
Here, the States’ claims against the Government clearly “dispute the extent of the
statutory authority that the Government claims.”
See id.
In their Complaint, the States
allege the Government does not have any discretion under Section 1226(c) to determine
whether certain aliens must be detained when released from custody.
See
(Dkt. No. 1 at
¶¶ 35, 37–38, 94–101);
see also
(Dkt. No. 18 at 39). In effect, “the general extent of the
Government’s authority under § 1226(c) is precisely the issue here.”
Preap
, ____ U.S. at
____,
Accordingly, the Court concludes Sections 1252(a)(5) and (b)(9), 1231(h), and 1226(e) do not preclude the States’ claims. There are no statutory bars to reviewing these claims.
2. Final Agency Action
The Court next considers whether the enforcement priorities set forth in the
January 20 and February 18 Memoranda constitute “final agency action” subject to
judicial review.
See
5 U.S.C. § 704 (“Agency action made reviewable by statute and final
agency action for which there is no other adequate remedy in a court are subject to judicial
review.”). “Under the APA, an aggrieved party may file suit in a federal district court to
obtain review of any final agency action for which there is no other adequate remedy in
a court.”
Nat’l Ass’n of Mfrs. v. Dep’t of Def.
, ____ U.S. ____, ____,
a. The Consummation of the Agency’s Decision-Making Process
The first condition that must be satisfied for a court to find that an agency’s action
is final is that the action constitutes “the consummation of the agency’s decisionmaking
process.”
Hawkes Co.
,
As an initial matter, the text of the February 18 Memorandum indicates the
Memoranda are the consummation of DHS’s decision-making process. It states, “[t]his
interim guidance is effective
immediately
.” (Dkt. No. 19-2 at 2) (emphasis added).
Moreover, the February 18 Memorandum states, “[i]t applies to
all
U.S. Immigration and
Customs Enforcement (ICE) Directorates and Program Offices, and it covers enforcement
actions, custody decisions, the execution of final orders of removal, financial
expenditures, and strategic planning.” ( ) (emphasis added). The immediacy and
definite nature of the application of this guidance to
all
enforcement actions and custody
decisions made by
all
ICE Directorates and Program Offices strongly suggest the agency’s
decision is final.
See Hawkes Co.
,
The Government attempts to overcome these indicia of final agency action by
arguing “the Secretary retains the discretion to change or abandon these policies at any
time[.]” (Dkt. No. 42 at 27). This argument stems from the February 18 Memorandum,
which states, “[t]his interim guidance will remain in effect until Secretary Mayorkas
issues new enforcement guidelines,” which will occur “only after consultation with the
leadership and workforce of ICE, U.S. Customs and Border Protection, and other
Department of Homeland Security (Department) agencies and offices.” (Dkt. No. 19-2 at
2). The Government’s argument is unpersuasive. The mere fact that an agency
says
an
action is not final because it maintains “discretion” to alter a policy is insufficient to
render
an action nonfinal.
See Hawkes Co.
,
Here, the Government’s insinuation that agency action is not final simply because the agency says so, would produce the absurd result of precluding judicial review of any policy that the agency says is not final. Indeed, if such a rule were followed, then an agency could avoid judicial review of its action in perpetuity simply by labeling its action as “interim” or “temporary” and stating that the agency maintains the ability to repeal or revise it in the future. In fact, this case demonstrates how an agency could potentially tie the judiciary’s hands if the agency’s action is not final simply because the agency says it is not.
In this case, the February 18 Memorandum took effect immediately upon issuance.
(Dkt. No. 19-2 at 2). The Memorandum states it would “remain in effect until Secretary
Mayorkas issues new enforcement guidelines.” (
Id.
). It also states Secretary Mayorkas
“anticipate[d] issuing these guidelines in less than 90 days,” meaning the new guidance
would be issued before May 19, 2021. ( ). But that did not happen.
See
(Dkt. No. 63 at
3–4). In fact, in a separate challenge to the February 18 Memorandum, the Government
represented to the district court that it “currently expect[s] that the Secretary will issue
new immigration priorities in the beginning of July.”
Arizona v. Dep’t of Homeland Sec.
,
No. 2:21-cv-00186-SRB,
b. Rights, Obligations, and Legal Consequences
The second condition that must be satisfied for a court to find that an agency’s
action is final is that the challenged action must be one by which rights or obligations
have been determined, or from which legal consequences will flow.
See Hawkes Co.
, 578
U.S. at ____,
First, the Government’s assertion that the Memoranda do not alter DHS’s legal obligations to detain certain aliens under Sections 1226(c) and 1231(a)(2) is demonstrably false. In deciphering the meaning of Sections 1226(c) and 1231(a)(2) below, see infra II.B.3.a., the Court goes to great lengths to discuss what obligations those statutory provisions create for DHS. In sum, Section 1226(c) obligates DHS to detain all aliens who fall within the ambit of that provision when they are “released” from state custody . Section 1231(a)(2) requires DHS to detain all aliens with final orders of removal “ during the removal period .”
The Memoranda require something quite different. Specifically, the February 18 Memorandum effectively substitutes a prioritization scheme in place of the enforcement mandates set forth in these statutory provisions. This new scheme creates two categories of aliens who are required to be detained: priorities and nonpriorities. See (Dkt. No. 19-2 at 4–7). It also sets forth a requirement that ICE agents obtain preapproval to detain aliens who are deemed nonpriorities. ( Id. at 7). The plain meaning of Sections 1226(c) and 1231(a)(2) allows for neither this specific prioritization scheme nor its preapproval process; they simply require DHS to detain all aliens described therein at a certain time or for a specific duration. Because the Memoranda require DHS to enforce the law in a different way than what Sections 1226(c) and 1231(a)(2) prescribe, the Memoranda constitute a change in DHS’s legal obligations. Such a change weighs in favor of classifying the Memoranda as final agency action. See Texas , 86 F. Supp. 3d at 648–49 (finding that DAPA is a final agency action, in part, because “[a]s evidenced by the mandatory language throughout the DAPA Memorandum requiring USCIS and ICE to take certain actions, the Secretary’s Directive clearly establishes the obligations of the DHS and assigns specific duties to offices within the agency”).
Next, the Government contends the Memoranda do not alter the rights or obligations of the States or aliens in the country. The Court disagrees. Based on the record before the Court, the Memoranda affect Texas’s legal obligation to provide Emergency Medicaid to certain noncitizens. “Emergency Medicaid is a federally required program jointly funded by the federal government and the states .” (Dkt. No. 19-7 at ¶ 7) (emphases added). Illegal aliens are eligible to participate in this program. See ( ); 8 U.S.C. § 1611(b)(1)(A). An alien in Texas who is eligible for Emergency Medicaid and presently in state custody can benefit from the program after being released. [24] Texas is therefore legally obligated to bear part of the cost of Emergency Medicaid for aliens who qualify for the program and are not detained by ICE after being released from state custody.
But as should be clear by now, not all aliens released from state incarceration are returned to society. And that is because of Sections 1226(c) and 1231(a)(2). Again, pursuant to Section 1226(c), DHS is required to detain all aliens who have committed certain serious offenses as soon as they are released from state custody. And per Section 1231(a)(2), DHS is required to detain certain aliens during their removal period. Instead, because of the Memoranda, DHS is no longer detaining all of these aliens as soon as they are released from state custody or during their removal periods. Texas will therefore have a legal obligation to share the cost of providing Emergency Medicaid to aliens who qualify for the program and, under the Memoranda, are not detained by ICE after being released from state custody. [25]
As for the rights of aliens, another district court has already concluded the
Memoranda affect the rights of certain aliens presently detained.
See Hussein S.M. v.
Garland
, No. CV 21-348 (JRT/TNL),
In sum, the Court finds the Memoranda are the consummation of DHS’s decision- making process and determine certain rights and legal obligations. Therefore, the Court concludes the Memoranda constitute final agency action under Section 704 of the APA. [26]
3. Committed to Agency Discretion by Law In determining whether an agency action is reviewable, the Court must also determine whether the “agency action is committed to agency discretion by law.” 5 U.S.C. § 701(a)(2). Accordingly, the Court now inquires whether the implementation of the new guidelines found in the Memoranda is “committed” to the Government’s discretion by law.
The APA embodies a “basic presumption of judicial review.”
Lincoln v. Vigil
, 508
U.S. 182, 190,
One category of administrative decisions that courts “traditionally have regarded
as ‘committed to agency discretion’” is relevant to this discussion.
Id.
(citation omitted).
Namely, “an agency’s decision not to institute enforcement proceedings.”
Id.
(citing
Heckler
,
In this case, the Government argues the States’ claims are unreviewable because the new guidelines contained in the February 18 Memorandum are committed to agency discretion by law. More precisely, the Government argues: (1) the substantive statutes in question, Sections 1226(c) and 1231(a)(2), do not set out the specific mandatory duties the States assert, that is, the duty to detain certain aliens subject to those two sections; (2) even if these statutes establish mandatory duties, the new guidelines “simply establish[] enforcement priorities” since they do “not direct ICE officials to cease detaining any particular noncitizen subject to either § 1226(c) or § 1231(a)(2)”; and (3) assuming the first two arguments fail, the Executive Branch may, in effect, dispense with a congressional mandate because “[t]he exercise of prosecutorial discretion is inherent to the Executive power that the Constitution confers on the President.” (Dkt. No. 42 at 28–30). Opposing the Government’s suppositions, the States contend that, although the Government wields tremendous discretion in this area of immigration law, Sections 1226(c) and 1231(a)(2) limit this discretion by mandating the detention of certain aliens when they are released or during the removal period. (Dkt. No. 51 at 29–30). The Court now turns to each of these arguments.
a. Whether “Shall” Means “Must”
The Government first argues that “shall” in Sections 1226(c) and 1231(a)(2) does not impose any mandatory duties or guidelines for the Government to follow. The Court disagrees. Under Section 1226(c), “the Attorney General shall take into custody” certain aliens who have either committed specified offenses or who are otherwise deemed deportable under the INA “when the alien is released” from custody. 8 U.S.C. § 1226(c) (emphasis added). Likewise, Section 1231(a)(2) provides, “the Attorney General shall detain the alien” “during [the alien’s] removal period.” 8 U.S.C. § 1231(a)(2) (emphasis added).
Recent Supreme Court precedent establishes “shall” means “must” in these sections. In Johnson v. Guzman Chavez , the Supreme Court noted “detention is mandatory” during an alien’s removal period, as prescribed by Section 1231(a)(2). ____ U.S. ____, ____, 141 S.Ct. 2271, 2281 (2021) (citing 8 U.S.C. § 1231(a)(2)). And under Section 1226(c), “detention is mandatory and release is permitted in very limited circumstances” “[f]or certain criminal aliens and aliens who have connections to terrorism.” at ____ n.2, 141 S.Ct. at 2280 n.2 (citing 8 U.S.C. § 1226(c)). In light of Guzman Chavez , it seems there is no dispute that Sections 1226(c) and 1231(a)(2) are mandatory.
This is not surprising.
Guzman Chavez
’s holding follows the well-established
principle that Sections 1226(c) and 1231(a)(2) mandate the detention of certain aliens at
specific points in time.
See Preap
, ____ U.S. at ____,
Accordingly, the Court concludes, following Guzman Chavez and the foregoing overwhelming precedent, the word “shall” means “must” in Sections 1226(c) and 1231(a)(2). Consequently, the Government is required to detain certain criminal aliens and aliens with final orders of removal at certain points in time to comply with those statutes.
Despite the Supreme Court’s clear interpretation of Sections 1226(c) and 1231(a)(2), the Government nevertheless argues that Guzman Chavez and, by extension, all other related court rulings are irrelevant here. The Government contends Guzman Chavez “did not address the Department of Homeland Security’s discretion whether to detain individuals covered by 8 U.S.C. § 1226(c) and 8 U.S.C. § 1231(a)(2).” (Dkt. No. 67 at 1). “Rather,” according to the Government, Guzman Chavez “addressed under which authority certain individuals were detained and whether such individuals were entitled to bond hearings.” ( ). In short, the Government argues the Court should disregard Guzman Chavez ’s statements on Sections 1226(c) and 1231(a)(2)—and the numerous court holdings that precede Guzman Chavez —because those were not central to the case’s holding and thus were dicta that need not be followed. The Court disagrees.
Guzman Chavez
’s treatment of Sections 1226 and 1231 were central to its holding.
The case’s key question was whether certain aliens could be released on bond while
petitioning for relief from removal. That question was necessarily answered by analyses
of both sections—analyses that included looking at the mandatory nature of Sections
1226(c) and 1231(a)(2)’s detention provisions. The respondents in
Guzman Chavez
—aliens
who were detained following their unlawful reentrance into the United States after
previously being removed—sought release on bond while they were pursuing relief from
removal.
Guzman Chavez
, ____ U.S. at ____,
Guzman Chavez
ultimately held Section 1231 applies to the respondents since they
had effectively been ordered removed through the reinstatement of their previous orders
of removal.
See id.
at ____,
Tellingly, the Government itself admitted during briefing in
Guzman Chavez
that
Section 1226(c) imposed a mandatory duty to detain certain criminal aliens.
[27]
The
Government explained, although “Section 1226(a) makes detention discretionary,” “a
separate provision, Section 1226(c),
makes an exception
to that general rule, providing that
the government ‘shall’ take into custody and not release certain criminal aliens.” Brief
for Petitioner,
Second, even if the clear principles delineated in
Guzman Chavez
,
Preap
,
Zadvydas
,
and the like are dicta, they are persuasive, nonetheless. As the Fifth Circuit has noted,
“[i]t is well established in this circuit that, although we are ‘not bound by dicta, even of
[this court,] [d]icta of the Supreme Court are, of course, another matter.’”
Peake v. Ayobami
(In re Ayobami),
879 F.3d 152, 154 n.3 (5th Cir. 2018) (quoting
Campaign for S. Equal. v.
Bryant
,
Arguments about dicta aside, the Court’s own statutory interpretation of Sections 1226(c) and 1231(a)(2) also leads to the conclusion that “shall” means “must” in those sections. See Scalia & Garner, supra , at 53 (“ Every application of a text to particular circumstances entails interpretation.” (emphasis added)).
264–65 (3d Cir. 2005) (“[A]s a lower federal court, we are advised to follow the Supreme Court’s
‘considered dicta.’” (quoting
McCoy
,
“The task of statutory interpretation begins and, if possible, ends with the
language of the statute.”
Trout Point Lodge, Ltd. v. Handshoe
,
For this analysis, the Court applies “the traditional means of statutory
interpretation, which include the text itself, its history, and its purpose.”
Bellum v. PCE
Constructors, Inc.
,
“[T]he word ‘shall’ usually connotes a requirement.”
Maine Cmty. Health Options
v. United States
, ____ U.S. ____, ____,
This need for legislative intent to demonstrate “shall” should be construed as
“must” against the government is present in Supreme Court jurisprudence. In
Texas I,
this Court identified
Town of Castle Rock v. Gonzales
, 545 U.S. 748, 125 S.Ct. 2796, 162
L.Ed.2d 658 (2005), a Supreme Court case upon which the Government relies, (6:21-cv-3,
Dkt. No. 82 at 19); (6:21-cv-3, Dkt. No. 83 at 25–26, 34); (6:21-cv-16, Dkt. No. 42 at 36–38),
as an apt example of the need for legislative intent to determine that “shall” connotes a
requirement.
See Texas I
, ____ F. Supp. 3d at ____,
With the foregoing in mind, this Court in
Texas I
previously explained how a
“stronger indication” from Congress may be gleaned. In
Richbourg Motor Co. v. United
States
and
Escoe v. Zerbst
, the Supreme Court noted one “indication” sufficient to conclude
that the word “shall” in a statute imposes an obligation upon the Government is present
when the statute’s manifest purpose is to protect the public or private interests of
innocent third parties.
See Richbourg Motor Co. v. United States
,
In
Richbourg Motor Co.
, the Supreme Court expressly found reason to avoid the
rule in
Hecht
where a statute provided that an officer “shall” take possession of a vehicle
used in the act of transporting liquor.
Five years after
Richbourg Motor Co.
, the Supreme Court in
Escoe
concluded that
any doubt regarding the mandatory nature of a statutory “shall” is “dispelled when we
pass from the words alone
to a view of ends and aims
.”
Given the caselaw, the key in this case is whether Sections 1226(c) and 1231(a)(2) demonstrate a purpose to protect public or private interests. If so, the word “shall,” as used in both sections, would connote a requirement against the Government in the manner envisioned by Richbourg Motor Co. and Escoe . Based on the following, the Court finds that the statutes do indeed demonstrate such a purpose.
The Supreme Court in
Demore
clearly explains that the purpose of Section 1226(c)
was to protect third-party interests: that of the states, citizens, and legal immigrants of
this country. Essentially, Section 1226(c) was enacted “against a backdrop of wholesale
failure by the INS [ICE’s predecessor] to deal with increasing rates of criminal activity by
aliens.”
Demore
,
Considering the context and purpose of Section 1226, it is no wonder why
Subsection (c) “subtract[s],” from the discretion given to the Government in Section
1226(a).
See Preap
, ____ U.S. at ____, 139 S.Ct. at 966. In fact, it does more than that.
Subsection (c) also subtracts from the general “broad discretion” that the Attorney
General originally had prior to the enactment of Section 1226.
See Demore
,
Like Section 1226(c), Section 1231(a)(2) was enacted to protect public and private
interests of the states and the people of the United States. As the Supreme Court noted
in
Zadvydas
, “protecting the community from dangerous aliens” is a “statutory purpose”
of that section.
Additionally, numerous federal courts—including this Court—have recognized
other
parts of Section 1231 use “shall” as a mandatory command.
See Shuaibu v. Gonzales
,
425 F.3d 1142, 1144 (8th Cir. 2005) (interpreting the “shall” in Section 1231(b)(1)(C) to
mean the Attorney General “must” attempt to remove the alien to certain countries);
Kim
Ho Ma v. Ashcroft
, 257 F.3d 1095, 1115 (9th Cir. 2001) (interpreting “shall” in Section
1231(a)(3) to mean all aliens ordered released “must” comply with supervision
requirements);
Texas I
, ____ F. Supp. 3d at ____,
The Government does not disagree that Congress enacted Sections 1226(c)
and 1231(a)(2) to protect public or private interests. Rather, the Government demurs that
a statutory purpose of protecting third parties, as held in
Richbourg Motor Co.
and
Escoe
,
is not a “stronger indication,” per
Castle Rock
, to make “shall” mandatory against any
governmental actor. (Dkt. No. 42 at 36–38);
see Richbourg
,
As an initial matter, this Court cannot ignore
Richbourg Motor Co.
and
Escoe
where
the Supreme Court or the Fifth Circuit has not expressly instructed it to do so.
See Rodriguez de Quijas v. Shearson/Am. Express, Inc.
,
But even if the Court could ignore
Richbourg Motor Co.
and
Escoe
,
Castle Rock
is
easily distinguishable from this case. The state statute ostensibly mandating the police
to enforce restraining orders in
Castle Rock
was drafted upon a background of “[a] well
established tradition of police discretion” that “ha[d] long coexisted with apparently
mandatory arrest statutes.”
Castle Rock
,
Furthermore, the Government’s contention that Sections 1226(c) and 1231(a)(2) do
not confer a mandatory duty against the Government goes against an analysis of the
statutes’ text within the whole statutory scheme. The Supreme Court has noted that
“[t]he word ‘may’ customarily connotes discretion” and that such a “connotation is
particularly apt where . . . ‘may’ is used in contraposition to the word ‘shall.’”
Jama v.
Immigr. & Customs Enf’t
,
Section 1231(a)(2) states that the Attorney General “shall” detain certain aliens “during the removal period,” which is defined to be a period of 90 days when an alien is ordered removed. 8 U.S.C. § 1231(a)(1)–(2). Before Section 1231(a)(2), Subsection (a)(1)(C) provides that the removal period “shall” be extended beyond 90 days if certain circumstances arise, and the alien “may” remain in detention during that extended period. Id. § 1231(a)(1)(C). Again, it would be absurd if Section 1231(a)(2)—with its use of “shall”—is read to provide merely discretionary authority to the Government to detain people during the removal period when Section 1231(a)(1)(C)—using “may”—clearly provides discretion to the Government to detain people after the initial 90-day removal period.
Likewise, Section 1226(c) clearly juxtaposes “may” and “shall” so that there is no ambiguity as to whether the “shall” used in 1226(c)(1) imposes a mandatory duty. Subsection (c)(1) states that the Attorney General “shall” detain certain aliens “when the alien is released.” 8 U.S.C. § 1226(c)(1). Just right after that, Subsection (c)(2) notes that the Attorney General “may” release aliens described in Subsection (c)(1) “only if” certain circumstances are present. § 1226(c)(2). As such, for Subsection (c)(2) to have any meaning, Subsection (c)(1) must be read as a mandate: the Attorney General must detain aliens when released and such aliens may be released only if certain situations call for it. If Subsection (c)(1) is not interpreted in this way, then Subsection (c)(2)—the release provision—loses its significance. It would be superfluous for Congress to state how certain aliens may be released—per Subsection (c)(2)—if the Government was meant to initially have the discretion to decide which criminal aliens to detain in the first place. This analysis of the two statutes within the overall scheme indeed tracks how the Supreme Court and other federal courts have construed Sections 1226(c) and 1231(a)(2), as described more fully above.
b. Whether “Prioritization” Contravenes Congressional Mandates
Having concluded that “shall” means “must” in Sections 1226(c) and 1231(a)(2), the Court turns to the Government’s second argument in support of its assertion that the new guidelines in the February 18 Memorandum are committed to agency discretion by law. That is, regardless of the relevant sections’ mandatory nature, the new guidelines “simply establish[] enforcement priorities” because they do “not direct ICE officials to cease detaining any particular noncitizen.” (Dkt. No. 42 at 28–29). Put differently, the Government argues that the guidelines do not actually stop detentions and, instead, merely prioritize who gets detained first. As a result, the Government concludes that the guidelines do not contravene the statutes. See ( ). Thus, in essence, the Government argues that it has discretion to determine the timing of when certain aliens should be detained—if not the discretion to determine who gets detained. This argument fails as well.
Although the Government describes the February 18 Memorandum as only a
reprioritization of immigration enforcement priorities, a review of the Memorandum
itself establishes that it is more than that.
See Texas DAPA
,
The Government opines that the February 18 Memorandum “directs ‘officers and agents . . . to exercise their discretion thoughtfully’ after consideration ‘of all relevant facts and circumstances’” concerning the arrest, detention, or removal of criminal illegal aliens. (Dkt. No. 42 at 29) (alteration in original) (citing Dkt. No. 42-2 at 4). That statement demonstrates that the new guidelines wade into areas that are not committed to agency discretion. See ( Id. ). Because “shall” means “must” in Section 1226(c), the Executive Branch is required to detain criminal aliens who have committed “ any offense covered in section 1182(a)(2),” “ any offense covered in section 1227(a)(2)(A)(ii), (A)(iii), (B), (C), or (D),” or any alien who “is deportable under section 1227(a)(2)(A)(i),” “inadmissible under section 1182(a)(3)(B),” or “deportable under section 1227(a)(4)(B).” 8 U.S.C. § 1226(c)(1)(A)–(D) (emphases added). This leaves no room for the Executive’s agent to “thoughtfully” exercise discretion. See (Dkt. No. 42 at 29). And crucially, to protect the public, Congress mandated that any alien falling under any of these categories must be detained “when the alien is released” from state custody. Id. Likewise, Section 1231(a)(2) requires both the detention of aliens who possess orders of removal and aliens who have been found “inadmissible under section 1182(a)(2),” “1182(a)(3)(B),” or “deportable under section 1227(a)(2) or 1227(a)(4)(B).” [30] Id. § 1231(a)(2). And, like Section 1226(c), Congress in Section 1231(a)(2) mandated the timing of such detention: the aliens must be detained “during the removal period.” Id.
Because of the clear mandates set forth in Sections 1226(c) and 1231(a)(2),
determining whether and when an alien should be detained is not a decision committed
to agency discretion. And by prioritizing the detention of some aliens over others, the
Government has effectively conferred upon itself discretion as to the timing of
detention—discretion it does not have. Put differently, the Government has assumed a
discretionary power that Congress has explicitly foreclosed. Such a maneuver is
impermissible.
See Util. Air Regul. Grp.
,
original) (citation omitted) (citing U.S. Const. art. II, § 3));
Barnhart v. Sigmon Coal Co.
, 534
U.S. 438, 462,
“Congress does not draft legislation
in the expectation
that the Executive will blow
through the deadlines it sets.”
Preap
, ____ U.S. at ____ n.6,
c. Whether the Executive may “Dispense” with Laws
Finally, the Government argues that the Memoranda are committed to agency
discretion because “[t]he exercise of prosecutorial discretion is inherent to the Executive
power that the Constitution confers on the President” and that such “discretion” is
“greatly magnified” in the immigration law context. (Dkt. No. 42 at 29–30) (citing
Reno
,
525 U.S. at 490, 119 S.Ct. at 946). As this Court stated in
Texas I
, “whatever ‘inherent
authority’ the Executive may have in the area of immigration, that authority—along with
the executive Power—does not include the authority to ‘suspend’ or ‘dispense with’
Congress’s exercise of legislative Powers in enacting immigration laws.” ____ F. Supp.
3d at ____,
Concern over the Executive’s power to dispense with laws dates back to before the founding of this Nation. The Framers of the Constitution were well aware of how the English Crown had abused the dispensing power a century prior to the ratification of the Constitution. See Michael W. McConnell, The President Who Would Not Be King: Executive Power Under the Constitution 118 (2020) (concluding that the Framers addressed the royal “prerogatives of suspending or dispensing with the laws” in the Take Care Clause “[g]iven that the Committee [of Detail] explicitly dealt with virtually every one of the royal prerogatives, and especially the notorious prerogatives that had animated the overthrow of Charles I and James II”); Michael Stokes Paulsen, Steven G. Calabresi, Michael W. McConnell & Samuel L. Bray, The Constitution of the United States 317 (Robert C. Clark et al. eds., 2d ed. 2013) (opining that the President’s duty to “‘take care that the laws be faithfully executed’ . . . means that the president is not permitted to dispense with or suspend statutes the way King James II did before the Glorious Revolution of 1688”); Robert J. Delahunty & John C. Yoo, Dream On: The Obama Administration’s Nonenforcement of Immigration Laws, the DREAM Act, and the Take Care Clause , 91 Tex. L. Rev. 781, 797–98 & n.95, 804–09 (2013) (detailing how the “suspending power” was abused by English Monarchs, such as James II, and how that history influenced Americans in limiting “[t]he executive Power”); see also Randy Barnett & Evan Bernick, The Letter & The Spirit: A Unified Theory of Originalism , 107 Geo. L. J. 1, 20–21 (2018) (contending the Founding Fathers constructed the new American government as a fiduciary of We the People, “bound by fiduciary duties to honor the law , . . . remain loyal to the public interest , . . . and account for violations of these duties .” (emphasis added) (citations and quotations omitted)). As a prime example, King James II dispensed with the Test Acts, [33] which effectively barred Catholics from holding government or military office, “to create an enlarged standing army under the control of Catholic officers . . . and . . . put Catholic peers in key positions in the Privy Council and the government” because he did “[n]ot trust[] Protestant militias and gentry to protect him from rebellion[.]” McConnell, supra , at 116; see also Zachary S. Price, Enforcement Discretion and Executive Duty , 67 Vand. L. Rev. 671, 691 (2014) (“King James enraged Protestants in Parliament by using his suspending and dispensing powers to exempt officials from statutory restrictions on office holding by Catholics and Protestant dissenters.”); Delahunty & Yoo, supra , at 805–06 (“James began using his dispensing power extensively to override the Test Acts, filling offices with his fellow Roman Catholics.”). This decision angered many Englishmen [34] and played a significant role in igniting the Glorious Revolution, which resulted in William III and Mary II replacing James II on the throne. Delahunty & Yoo, supra , at 807. Although no longer on the throne, James II had already left his mark on the future powers of the Crown. Indeed, the English Bill of Rights of 1689 barred William III and Mary II and all future monarchs from suspending or dispensing with laws. [35]
By 1776, Americans had developed a similar sentiment about the dispensing
power as had the English in 1689.
See
Price,
supra
, at 692
.
Notably, one of the grievances
against King George III articulated in the Declaration of Independence
[36]
was that he
“often withheld assent from laws passed by colonial legislatures unless the laws included
a suspension clause allowing him to halt their execution.” Brief for the Cato Institute,
Professor Randy E. Barnett & Professor Jeremy Rabkin as Amici Curiae Supporting
Respondents at 5–6,
United States v. Texas
, ____ U.S. ____,
Prior to the United States Constitution’s ratification, states were aware of this sentiment and crafted state constitutions of their own that barred the Executive from exercising the suspending or dispensing power. See Price, supra , at 692 (“Drawing from this English model, several states during the American revolutionary period adopted constitutions including prohibitions on executive suspension of laws.”); Steven G. Calabresi, Sarah E. Agudo & Kathryn L. Dore, State Bills of Rights In 1787 and 1791: What Individual Rights Are Really Deeply Rooted In American History and Tradition? , 85 S. Cal. L. Rev. 1451, 1534–35 (2012) (explaining that, at the time of the founding, “state constitutions . . . had constitutional clauses restricting the power to suspend or dispense with laws to the legislature”); cf. Gordon S. Wood, The Origins of Vested Rights in the Early Republic , 85 Va. L. Rev. 1421, 1425–26 (1999) (noting that, “[i]n the 1760s and 1770s, during the crisis that eventually tore apart the British empire, the American colonists had this long English heritage of popular rights to draw upon,” including the English Bill of Rights, which “declared illegal certain actions of the crown, including its dispensing with laws”). By 1787, six states—Delaware, Maryland, Massachusetts, North Carolina, New Hampshire, and Virginia—had state constitutions containing provisions barring the Executive from exercising the suspending or dispensing power. See Del. Const. of 1776 Decl. of Rights, § 7 (“That no power of suspending laws, or the execution of laws, ought to be exercised unless by the Legislature.”); Md. Const. of 1776 Decl. of Rights, § VII (“That no power of suspending laws, or the execution of laws, unless by or derived from the Legislature, ought to be exercised or allowed.”); Mass. Const. of 1780 pt. 1, art. XX (“The power of suspending the laws, or the execution of the laws, ought never to be exercised but by the legislature, or by authority derived from it, to be exercised in such particular cases only as the legislature shall expressly provide for.”); N.H. Const. of 1784 pt. 1, art. XXIX (“The power of suspending the laws, or the execution of them, ought never to be exercised but by the Legislature, or by authority derived therefrom, to be exercised in such particular cases only as the Legislature shall expressly provide for.”); N.C. Const. of 1776 Decl. of Rights, § V (“That all powers of suspending laws, or the execution of laws, by any authority, without consent of the Representatives of the people, is injurious to their rights, and ought not to be exercised.”); Va. Const. of 1776 Bill of Rights, § 7 (“That all power of suspending laws, or the execution of laws, by any authority, without consent of the representatives of the people, is injurious to their rights and ought not to be exercised.”); see also Calabresi, Agudo & Dore, supra, at 1534. This number soon grew to eight after Pennsylvania added a provision prohibiting the Executive from suspending or dispensing with laws to its constitution in 1790, and Vermont, which already had such a provision in its constitution, became a state in 1791. [37] See Pa. Const. of 1790 art. IX, § 12 (“That no power of suspending laws shall be exercised, unless by the legislature, or its authority.”); Vt. Const. of 1786 Decl. of Rights, § XVII (“The power of suspending laws, or the execution of laws ought never to be exercised, but by the Legislature, or by authority derived from it, to be exercised in such particular cases only as the Legislature shall expressly provide for.”); see also Calabresi, Agudo & Dore, supra, at 1535.
Although the Constitution does not contain a provision of its own explicitly
prohibiting the Executive from dispensing with laws,
[38]
it in no way sanctions such action
by the Executive for at least two reasons. First, the Constitution separates power among
three branches, vesting executive power
exclusively
in the President and legislative power
exclusively
in Congress.
See
U.S. Const. art. I, § 1; U.S. Const. art. II, § 1; U.S. Const. art.
III, § 1;
Free Enter. Fund v. Pub. Co. Acct. Oversight Bd.
,
Second, the dispensing power conflicts with the Executive’s
duty
to
faithfully
execute the laws.
See
U.S. Const. art. II, § 3. In vesting the executive power in the
President,
[39]
the Constitution requires the President to channel that power to perform
certain duties and prescribes how he or she is to carry out those duties.
[40]
See id.
One of
those duties, contained in the Take Care Clause, is that “he
shall take Care
[41]
that the Laws
be
faithfully
[42]
executed
[43]
. . . .”
[44]
Id.
(emphasis added) (footnotes added);
see Morrison v.
Olson
,
[46] https:// https://founders.archives.gov/documents/Adams/99-02-02-0682. Francis Adams ed., 1851) (stating that it is the President’s “ duty to take Care that the Laws be faithfully executed” (emphasis added)); Saikrishna B. Prakash, Faithless Execution , 133 Harv. L. Rev. F. 94, 97 (2020) (“The duty to see the laws faithfully executed implies that the President has the power—the executive power—to see the laws faithfully executed.” (emphasis added)); Brett M. Kavanaugh, Our Anchor for 225 Years and Counting: The Enduring Significance of the Precise Text of the Constitution , 89 Notre Dame L. Rev. 1907, 1911 (2014) (“To be sure, the President has the duty to take care that the laws be faithfully executed.” (emphasis added)).
Given this duty to take care that the laws are faithfully executed, the Constitution’s
system of separation-of-powers, and the treatment of the dispensing power in American
history and tradition, the Court is hard pressed, at this early stage of the litigation, to see
how the Government can suggest that the Constitution confers upon the Executive the
“discretion” to ignore clear congressional commands contained in Sections 1226(c) and
1231(a)(2).
See Kendall
, 37 U.S. (12 Pet.) at 612–13 (“It was urged at the bar, that the
postmaster general was alone subject to the direction and control of the President, with
respect to the execution of the duty imposed upon him by this law, and this right of the
President is claimed, as growing out of the obligation imposed upon him by the
constitution, to take care that the laws be faithfully executed. This is a doctrine that
cannot receive the sanction of this court. It would be vesting in the President a
dispensing
power
, which has no countenance for its support in any part of the constitution . . . . To
contend that the obligation imposed on the President to see the laws faithfully executed,
implies a power to forbid their execution, is a novel construction of the constitution, and
entirely inadmissible.” (emphasis added));
Little v. Barreme
,
Instead, the Executive—and thus, the Attorney General or the Secretary of DHS—
must exercise any discretion accorded to it by statute in the manner which Congress has
prescribed.
See Util. Air Regul. Grp.
,
Accordingly, the Executive Branch, including its agencies, may not dispense with a clear congressional mandate under the guise of exercising “discretion.”
d. The Memoranda are not Committed to Agency Discretion In sum, the Court finds that Sections 1226(c) and 1231(a)(2) impose mandatory detention at specific points in time for certain aliens. The Executive Branch may neither alter these statutory obligations through reprioritization nor dispense with them. Accordingly, the Court concludes that the detention of certain aliens subject to Sections 1226(c) and 1231(a)(2) is not committed to agency discretion.
4. Zone of Interests
The States must next show that their injuries are within the “zones of interest” the
two laws were intended to protect. Congress has placed limits on
how
the Executive may
be sued for violating the law and
who
can do it. Congress, through the APA, has provided
a cause of action for those seeking redress against the federal government for violating
other federal laws.
See
5 U.S.C. §§ 702, 706. But Congress has limited the availability of
an APA cause of action to those who allege an injury that is “arguably” within the “zone
of interests” to be protected or regulated by the relevant statutes.
Collins v. Mnuchin
, 938
F.3d 553, 573–74 (5th Cir. 2019),
aff’d in part, vacated in part, rev’d in part sub nom. Collins v.
Yellen
, ____ U.S. ____, 141 S.Ct. 1761 (2021);
see also Match-E-Be-Nash-She-Wish Band of
Pottawatomi Indians v. Patchak
, 567 U.S. 209, 224, 132 S.Ct. 2199, 2210, 183 L.Ed.2d 211
(2012) (hereinafter “
Match-E
”) (quoting
Ass’n of Data Processing Serv. Orgs., Inc. v. Camp
,
The zone of interests test is not “especially demanding” in the APA context.
Collins
,
Importantly, the relevant statute in whose zone of interests the plaintiff’s injury
must reside “is to be determined not by reference to the overall purpose of the Act in
question,” but rather, “by reference to the particular provision of law upon which the
plaintiff relies.”
Bennett
,
In this case, the States essentially bring three APA claims asserting that the Government violated federal law: (1) the Memoranda are contrary to Sections 1226(c) and 1231(a)(2) of the INA, (Dkt. No. 1 at ¶¶ 94–107); (2) the policy set forth in the Memoranda is arbitrary and capricious, ( id. at ¶¶ 108–17); and (3) the Government was required but failed to follow notice and comment procedures in issuing the Memoranda, ( id. at ¶¶ 118– 121).
As in
Texas I,
the Government solely—and narrowly—maintains that “the States
do not come within the relevant zone-of-interests” because “no entity can enforce § 1231”
because Subsection (h) bars any party from enforcing Section 1231 against the
Government.
[48]
(Dkt. No. 42 at 35–36);
see
(6:21-cv-3, Dkt. No. 83 at 30–32);
Texas I
, ____
F. Supp. 3d at ____,
For starters, the Government cannot refute the States’ position that their injuries
are within the zones of interests of Sections 1226(c) and 1231(a)(2), particularly in light of
this Court’s discussions of
Demore
and
Zadvydas
concerning the development and
purpose of Sections 1226 and 1231.
See supra
I.A, II.B.1 & II.B.3. This discussion makes
clear that Sections 1226(c) and 1231(a)(2)—and indeed the INA itself,
see Texas DAPA
, 809
F.3d at 163 & n.80—were enacted to protect and benefit the states, the citizens of this
country, and the legal immigrants of the United States.
See supra
I.A, II.B.1 & II.B.3. As
such, the injuries the States suffer due to the Memoranda,
see supra
II.A.1–4, fall within
the relevant statutes’ zones of interests.
See Texas DAPA
,
The Government, indeed, does not dispute that the States’ injuries fall within Sections 1226(c) and 1231(a)(2)’s zones of interests. Rather, the Government focuses its attention on Section 1231(h), in essence arguing that because Subsection (h) bars parties from enforcing Section 1231, any injury stemming from violations of the section does not fall within the statute’s zone of interests. See (Dkt. No. 42 at 35–36). But, as explained earlier, Section 1231(h) does not bar the States’ claims. See supra II.B.1; Texas I , ____ F. Supp. 3d at ____, 2021 WL 2096669, at *29–30 & n.42. Thus, the Government’s lone contention fails. The Court finds that the States’ injuries fall within the zones of interest of Sections 1226(c) and 1231(a)(2).
III. DISCUSSION OF PRELIMINARY INJUNCTION
Having determined the Court has jurisdiction over the action and nothing precludes judicial review under the APA, the Court now turns to the merits of the States’ Motion for Preliminary Injunction.
A. L EGAL S TANDARD
“A preliminary injunction is an extraordinary remedy never awarded as of right.”
Benisek v. Lamone
, ____ U.S. ____, ____, 138 S.Ct. 1942, 1943, 201 L.Ed.2d 398 (2018)
(quotation omitted). Indeed, the decision to grant a preliminary injunction is “to be
treated as the exception rather than the rule.”
Miss. Power & Light Co. v. United Gas Pipe
Line Co.
,
A preliminary injunction “issue[s] only where (1) there is a substantial likelihood
that the movant will prevail on the merits; (2) there is a substantial threat that irreparable
harm will result if the injunction is not granted; (3) the threatened injury outweighs the
threatened harm to the defendant; and (4) the granting of the preliminary injunction will
not disserve the public interest.”
Clark v. Prichard
,
Note, however, that “none of the four prerequisites has a fixed quantitative value.”
Texas v. Seatrain Int’l, S. A.
,
B. A PPLICATION
1. Substantial Likelihood of Success on the Merits a. Counts I & II: Contrary to Law
As described above, the Court determined that “shall” in Sections 1226(c) and 1231(a)(2) means “must.” See supra II.B.3.a. This conclusion means that the Attorney General must detain certain aliens subject to those sections. The Court also found that both statutes mandate detention of certain aliens at specific points in time: for Section 1226(c), the Attorney General is required to detain certain aliens “when the alien is released from custody,” while for Section 1231(a)(2), the Attorney General is obligated to detain certain aliens “during the removal period.” The policy contained in the Memoranda effectively dispenses with these mandates by conferring discretion to the Government to independently decide who will be detained and when—if ever— detention of those individuals might occur. This guidance therefore is wholly contrary to Sections 1226(c) and 1231(a)(2). Thus, the States have demonstrated a substantial likelihood of success on Counts I & II.
b. Count III: Arbitrary and Capricious The States argue that the Government’s Memoranda establishing new guidelines and priorities for the detention of certain aliens are arbitrary and capricious because they “failed to consider important aspects of a problem.” (Dkt. No. 18 at 28). Specifically, the States allege that the Memoranda: (1) “failed to consider the risks of recidivism among criminal aliens who are not detained;” (2) “ignore the effects non-detention will have on future removal efforts,” especially on the costs that delays in deportation often produce and the rate of abscondment of released aliens; (3) “do not discuss the costs that [the new guidance] will impose on [the] States;” (4) “did not consider more limited policies that would have retained congressionally mandated detention of criminal aliens and those with final orders of removal;” and (5) “do[] not explain Defendants’ choice[]”of prioritizing the detention of aliens who have aggravated felonies over others who have committed drug offenses and crimes of moral turpitude or those with final orders of removal. ( Id. at 27–29). The Government disagrees with the States’ contentions. Countering the States point-by-point, the Government argues that it “considered the relevant factors and reached a reasonable decision.” (Dkt. No. 42 at 42–47). Reviewing these assertions, the Court finds the States have demonstrated a substantial likelihood of success in establishing that the policy set forth in the Memoranda is arbitrary and capricious as alleged in Count III.
The APA prohibits agency actions that are “arbitrary, capricious, an abuse of
discretion, or otherwise not in accordance with law.” 5 U.S.C. § 706(2)(A). With that in
mind, federal administrative agencies are required to engage in “reasoned
decisionmaking.”
Allentown Mack Sales & Serv., Inc. v. NLRB
,
When final agency action is challenged as arbitrary and capricious, “[t]he
reviewing court must consider whether the decision was based on a consideration of the
relevant factors and whether there has been a clear error of judgment.”
Marsh v. Or. Nat.
Res. Council
, 490 U.S. 360, 378, 109 S.Ct. 1851, 1861, 104 L.Ed.2d 377 (1989) (internal
quotations omitted). “Normally, an agency rule would be arbitrary and capricious if the
agency has relied on factors which Congress has not intended it to consider, entirely
failed to consider an important aspect of the problem, offered an explanation for its
decision that runs counter to the evidence before the agency, or is so implausible that it
could not be ascribed to a difference in view or the product of agency expertise.”
State
Farm
,
“Because the central focus of the arbitrary and capricious standard is on the
rationality of the agency’s ‘decisionmaking,’ rather than its actual decision, ‘[i]t is well-
established that an agency’s action must be upheld, if at all, on the basis articulated by
the agency itself.’”
United States v. Garner
,
Finally, the Court is mindful that the arbitrary and capricious standard is “highly deferential.” Garner , 767 F.2d at 116. Courts must “accord the agency’s decision a presumption of regularity” and “are prohibited from substituting [the courts’] judgment for that of the agency.” Id. (citation omitted). But “while the arbitrary and capricious standard of review is highly deferential, it is by no means a rubber stamp.” Based on the following, the Memoranda fail to indicate that the Government engaged in reasoned decision-making, thereby rendering them arbitrary and capricious.
At their core, the Memoranda reprioritize certain classes of aliens for immigration enforcement action. In the February 18 Memorandum specifically, the Government states that it is establishing enforcement and removal guidelines with respect to immigration enforcement and removal priorities pursuant to the January 20 Memorandum. [50] See (Dkt. No. 19-2 at 5). As discussed above, if a criminal illegal alien falls under a category deemed to be a priority, no preapproval is required for an enforcement or removal action. On the other hand, if the criminal illegal alien does not fall under any of the categories, an enforcement or removal action “will require preapproval.” ( Id. at 7). The Memorandum states that “ICE operates in an environment of limited resources,” and thus, “ICE has always prioritized, and necessarily must prioritize, certain enforcement and removal actions over others.” ( at 3). In addition to “resource constraints,” “several other factors,” according to the Memorandum, “render ICE’s mission particularly complex.” These factors include “ongoing litigation in various fora; the health and safety of the ICE workforce and those in its custody, particularly during the current COVID-19 pandemic; the responsibility to ensure that eligible noncitizens are able to pursue relief from removal under the immigration laws; and the requirements of, and relationships with, sovereign nations, whose laws and expectations can place additional constraints on ICE’s ability to execute final orders of removal.” ( Id. ). Given these considerations, the Memorandum states that the Government “must exercise its well-established prosecutorial discretion and prioritize its limited resources to most effectively achieve that mission.” ( at 4).
As described here, the February 18 Memorandum indeed enumerates quite a few
factors that make the Government’s “mission particularly complex” in this field. But the
Memorandum itself does not directly state whether these factors were considered while
the Government was actually formulating the guidance in question. Assuming they were
considered and were the bases for the new guidance,
see Pitts
,
First, the February 18 Memorandum does not offer even a brief explanation of how “ongoing litigation in various fora” affected the Government’s decision-making in promulgating the new guidance. It is simply a vague and conclusory statement. Did the Government mean to say that Texas I or other pending cases were considered when crafting the new guidance? If so, how did the disposition of Texas I or other cases affect the reprioritization? Those questions have yet to be answered.
Second, the Government’s stated responsibility and desire to ensure that eligible aliens may be afforded relief from removal is commendable but likewise lacks any rational connection with the new guidance. The new guidance reprioritizes the detention and deportation of criminal illegal aliens. But the February 18 Memorandum does not explain how or why prioritizing, for instance, the detention or deportation of “border security risks” (aliens who entered the country on or after November 1, 2020) over aliens who have drug offenses or crimes of moral turpitude would ensure that eligible noncitizens will obtain relief in their own removal proceedings. There does not seem to be any connection between reprioritizing the detention and removal of certain aliens to whether other aliens may be afforded legally authorized relief from deportation. The February 18 Memorandum does not shed light on this disconnect.
Third, although the Court acknowledges as a general matter that interactions and relationships with other sovereign nations “may place constraints” on the Government’s ability to “execute final orders of removal,” see (Dkt. No. 19-2 at 4), there is no rational link between any of these factual constraints to the reprioritization scheme the Government has chosen to pursue. For example, do these international relationships make it more inefficient to deport aliens with drug offenses over so-called “national security risks” or “border security risks”? If so, what are the facts that justify such conclusions? Those questions are also unanswered. Like the considerations described above, the Memorandum does not state any facts or findings with respect to why international relations apparently factored in the Government’s decision-making.
Lastly, the Government’s written concern for the health and safety of ICE workers in the midst of the COVID-19 pandemic is not rationally relevant to the new guidance. Will COVID-19 infections among the ICE workforce be substantially reduced if the Government prioritizes the deportation of one category of criminal illegal aliens over another? How does reprioritization alleviate those health concerns, if any? On these points the February 18 Memorandum is, unfortunately, silent.
The Court further notes that, out of all these considerations, the cursory use of the
COVID-19 pandemic to justify the new guidance comes across as implausible.
Throughout the last year, institutions, including federal and state governments, have
used the pandemic to rationalize policies found to be unlawful or unconstitutional.
See
,
e.g.
,
Chrysafis v. Marks
, ____ U.S. ____,
The Government used the pandemic to reason that the January 20 Memorandum’s
100-day pause on removals—the precursor to the February 18 Memorandum—was borne
out of reasoned decision-making.
See Texas I
, ____ F. Supp. 3d at ____,
“[A]gency action must be based on
non-arbitrary
,
relevant
factors.”
Judulang v.
Holder
, 565 U.S. 42, 55, 132 S.Ct. 476, 485, 181 L.Ed.2d 449 (2011) (internal quotation
omitted) (emphasis added). In this case, the factors apparently considered in the
February 18 Memorandum and its predecessor, the January 20 Memorandum, are, after
a thorough review, arbitrary and irrelevant to the new guidance. The link between the
new guidance and the factors enumerated are so contradictory to the evidence and
“implausible” that the States’ challenge cannot be said to be differing policy preferences
or views.
See FCC v. Fox Television Stations, Inc.
,
What’s more, while the Government argues it actually did consider certain
relevant factors in crafting the new guidelines (thus engaging in reasoned decision-
making), the Court finds that the Government’s briefs actually establish that it
did not
consider those factors. To begin with, “
[p]ost hoc
rationalizations offered by the
Government’s counsel are irrelevant.”
Univ. of Texas M.D. Anderson Cancer Ctr. v. Dep’t
of Health & Hum. Servs.
,
First, the Government states that it considered the prospect of recidivism when crafting the new guidance found in the February 18 Memorandum. (Dkt. No. 42 at 44). Specifically, the Government alleges that “DHS weighed the threat to public safety from criminal noncitizens reoffending in prioritizing certain noncitizens for removal.” ( ). In support, the Government cites to passages from the February 18 Memorandum that, according to the Government, (a) “focused on the degree of threat to public safety” the “different criminal noncitizens presented,” which, apparently, is akin to considering the risk of recidivism; and (b) allowed immigration officers, in making “individualized determinations” for enforcement and removal, to “consider public interest factors, which include the risk of recidivism.” See ( at 44). These points miss the mark entirely.
With respect to the first, the Government’s decision to “focus[] on the degree of
threat to public safety” establishes that the Government either did not consider the risk
of recidivism or created a policy contrary to the evidence before it. In their claim, the
States argue that, in choosing which policy to pursue, the Government did not consider
the risks of recidivism of
all
criminal aliens.
See
(Dkt. No. 18 at 44). Indeed, the Supreme
Court has stated that “
deportable
criminal aliens who remained in the United States”—
notably
not
a certain subset or category of such aliens—“often committed more crimes
before being removed.”
Demore
,
Moreover, it is irrelevant whether immigration officers have the capability,
pursuant to the February 18 Memorandum, to “consider public interest factors” that
“could” include the risk of recidivism.
See
(Dkt. No. 42 at 44). Arbitrary and capricious
review calls for the Court to examine the rationality of agency decision-making and not
the actual decision.
Garner
,
Second, the Government asserts that it has limited resources and must prioritize
certain enforcement and removal actions under Section 1226(c). (
Id.
at 45). But, as the
States point out, this contention “dodges the key issue” of whether the Government
actually considered the effects of the new guidelines to costs of delaying deportations
and the overall rate of abscondment of criminal illegal aliens. (Dkt. No. 51 at 15); (Dkt.
No. 18 at 27–28). The costs of the non-detainment of criminal aliens are substantial. For
instance, in the past, “when the vast majority of deportable criminal aliens were not
detained during their deportation proceedings, many filed frivolous appeals in order to
delay their deportation.”
Demore
,
Third, the Government argues that, with regard to the additional costs the States will incur, “the States are wrong to argue that DHS was required to expressly evaluate the costs to each State,” and, regardless, the Government “did consider how the Priority Framework would impact public safety . . . which should reduce the costs from crime to the States.” (Dkt. No. 42 at 45–46). Rephrased, the Government argues that state costs and expenses are not relevant factors, but, nevertheless, the February 18 Memorandum indirectly considered them since it factored in the new guidelines’ impact to public safety. The Government is incorrect on both issues.
State costs and expenses are, indeed, relevant factors. That was the case in
Texas
I
,
see
____ F. Supp. 3d at ____,
As stated earlier, an “agency rule would be arbitrary and capricious” if the
relevant agency “entirely failed to consider an important aspect of the problem.”
State
Farm
,
Further, the Supreme Court has indicated that, in the context of immigration
policy, an agency’s approach to decision-making “must be tied, even if loosely, to the
purposes of the immigration laws or the appropriate operation of the immigration
system.”
Judulang
,
Likewise, the Court finds that the Memoranda did not consider the States’ costs
and expenses even though, according to the Government, DHS considered the new
guidelines’ impact to public safety. In fact, the Memoranda did not consider or failed to
substantially consider the new guidelines’ effects on public safety. Indeed, both
Memoranda are devoid of explanation as to how or why prioritizing the detention or
deportation of some criminal illegal aliens, while effectively delaying the detention or
deportation of and releasing so many other criminal illegal aliens, positively impact
public safety. Moreover, the Memoranda provide no indication that any relevant data or
facts were considered in ultimately concluding that the public will be safer by releasing
more criminal illegal aliens into communities from detention while fewer are detained or
deported.
See State Farm
,
Additionally, even if the Government did consider public safety, the
Memoranda—and the February 18 Memorandum most crucially—do not state or explain
how that consideration connects with concerns regarding state costs and expenses. The
Government in its brief argues that, by focusing its “limited resources” on enforcement
actions against “the most significant threats to public safety,” the Memoranda “should
reduce the costs from crime to the States.” (Dkt. No. 42 at 46). Leaving aside that the new
guidelines practically provide for the non-detention of many criminal illegal aliens who
are not within the ambit of any of the prioritized categories, the Government’s assertion
still fails. “[T]he grounds upon which an administrative order must be judged are those
upon which the record discloses that its action was based.”
Chenery
,
Next, the Government argues that, contrary to the States’ allegations, DHS “need
not ‘consider all policy alternatives in reaching [its] decision.’” (Dkt. No. 42 at 46) (citing
State Farm
,
The States do propose that, instead of the prioritization scheme found in the
February 18 Memorandum, the Government should have considered policies “that
would have retained congressionally mandated detention of criminal aliens and aliens
with final orders of removal.” (Dkt. No. 18 at 28). The foregoing is simply asking that
the Government follow the law.
[52]
Of course, such policies are “within the ambit of
existing policy.” After all, the February 18 Memorandum states that its reprioritization
scheme “covers enforcement actions, custody decisions, the execution of final orders of
removal, financial expenditures, and strategic planning,” (Dkt. No. 19-2 at 2), and
congressional statutes mandating the detention of aliens go to the explicit focus of the
Memorandum.
See State Farm
,
Lastly, the States argue that the February 18 Memorandum failed to rationally explain why criminal illegal aliens who have committed aggravated felonies or who are affiliated with criminal gangs are prioritized over other criminal illegal aliens and aliens with final orders of removal. (Dkt. No. 18 at 29). The Government responds that the Memorandum “provides a clear, rational justification for prioritizing” such aliens. (Dkt. No. 42 at 43–44). As the Government writes, “the former category presumptively presents a more significant threat to public safety.” ( ). In mandating the detention of criminal aliens convicted of serious drug offenses, crimes of moral turpitude, and some other specified offenses, see 8 U.S.C. § 1226(c), as well as aliens with final orders of removal during the removal period, see 8 U.S.C. § 1231(a)(2), Congress did not differentiate among certain “types” or “categories” of deportable and detainable persons. These laws plainly mandate the detention of all the deportable criminal aliens subject to the relevant statutes. The new guidelines directly go against these congressional mandates, opting instead to prioritize certain criminal illegal aliens’ detention and deportation over others because of an assertion that such aliens “presumptively present[] a more significant threat to public safety” than “one million noncitizens with final orders of removal,” (Dkt. No. 42 at 44), and—necessarily—other criminal aliens with convictions for drug offenses or crimes of moral turpitude. But the February 18 Memorandum does not ground this otherwise unsupported assertion. It does not even explain or state how it considered, compared, and ultimately concluded that criminal illegal aliens of a certain category must be prioritized over others. Despite Sections 1226(c) and 1231(a)(2), nowhere in the February 18 Memorandum do the new guidelines even contemplate the prioritization of these “other” criminal illegal aliens. As the States correctly surmise, “[t]he very reason the February 18 Memorandum provides for prioritizing aggravated felonies also supports prioritizing drug offenses, crimes of moral turpitude, and final orders of removal.” (Dkt. No. 18 at 29). Without more explanation grounded on relevant data and facts, it is unknown why the priorities were implemented in that way. The new guidance, therefore, indeed appears to be the product of arbitrary and capricious decision-making.
In sum, the Government’s failure to rationally explain and connect the basis for the new guidance, along with the Government’s failure to consider certain relevant factors and alternative policies, establish that there is a substantial likelihood that the reprioritization is an arbitrary and capricious policy. As the above discussion shows, the Government certainly did not engage in reasoned decision-making as required by the APA. The Court therefore finds that the States have established a substantial likelihood of success on this claim.
c. Count IV: Notice and Comment Rulemaking
The States’ next claim is similar to one Texas raised in
Texas I
.
See Texas I
, ____ F.
Supp. 3d at ____,
Rulemaking under 5 U.S.C. § 553
As in
Texas I
, no Party disputes that the Memoranda are rules of some kind and,
therefore, that the rulemaking provisions of the APA apply.
[53]
See
(Dkt. No. 18); (Dkt. No.
42);
see also
___ F. Supp. 3d at ____,
The Court begins with an overview of the APA’s notice and comment requirement and the exceptions thereto. The APA requires rules to undergo notice and comment unless they are exempt. See 5 U.S.C. § 553. [54] Section 553 sets forth two such categories of exemptions to the notice and comment requirement, one of which is relevant to this case. Id. § 553(b). That category exempts “interpretative rules, general statements of policy , or rules of agency organization, procedure , or practice” from notice and comment. Id. § 553(b)(A) (emphases added). Thus, if an agency proposes a rule that is either a general statement of policy or a procedural rule, the agency is not required to conduct notice and comment on the proposed rule. See id.
The Fifth Circuit has made clear that exemptions to the notice and comment
requirement “must be narrowly construed.”
Texas DAPA,
809 F.3d at 171. A narrow
reading of the exemptions safeguards the vital interests notice and comment is intended
to protect.
See Dep’t of Lab. v. Kast Metals Corp.
,
In harmony with the Fifth Circuit’s warning to narrowly construe exemptions to
APA’s procedural strictures, the Supreme Court has recognized that states like Louisiana
and Texas offer important perspectives on illegal immigration issues.
See Arizona
, 567
U.S. at 397,
General Statement of Policy
The Court first considers whether the Memoranda are general statements of
policy. If so, notice and comment is not required.
Prof’ls & Patients for Customized Care v.
Shalala
, 56 F.3d 592, 595 (5th Cir. 1995);
see also
5 U.S.C. § 553(b)(A). “In analyzing
whether an agency pronouncement is a statement of policy or a substantive rule, the
starting point is the agency’s characterization of the rule.”
Shalala,
at 596. As in
Texas I
,
the Court would likely be convinced that the Memoranda are general statements of policy
if it could rely on the Government’s characterization of the Memoranda alone.
See Texas
I
, ____ F. Supp. 3d at ____,
The February 18 Memorandum contains similar language. It begins by declaring that it “establishes interim guidance [.]” (Dkt. No. 19-2 at 2) (emphasis added). The February 18 Memorandum goes on to say that “[t]hese guidelines and priorities are not intended to, do not, and may not be relied upon to create any right or benefit, substantive or procedural, enforceable at law by any party in any administrative, civil, or criminal matter.” ( Id. at 8).
But an agency’s characterization of its rule is just that—its
own
characterization.
Indeed, “[a]gencies have never been able to avoid notice and comment simply by
mislabeling their substantive pronouncements. On the contrary, courts have long looked
to the
contents
of the agency’s action, not the agency’s self-serving
label
, when deciding
whether statutory notice-and-comment demands apply.”
Azar v. Allina Health Servs.
,
____ U.S. ____, ____,
Specifically, the Fifth Circuit instructs district courts to also “evaluate two criteria
to distinguish policy statements from substantive rules: whether the rule (1) impose[s]
any rights and obligations and (2) genuinely leaves the agency and its decision-makers
free to exercise discretion.”
Texas DAPA
,
The Court first considers whether the Memoranda impose any rights or
obligations.
See Texas DAPA
,
The Fifth Circuit cautions, however, that the “binding effect, not the timing , . . . is the essence of criterion one.” Shalala , 56 F.3d at 595 (emphasis added). Thus, the “[m]ere pronouncements of what the agency intends, whether for the present or for the future, which do not have a binding effect, are properly classified as interpretative rules.” Cmty. Nutrition Inst. , 818 F.2d at 946 n.4. This caveat is of no consequence here because the Court finds that the Memoranda have a binding effect due to their effect on the rights and obligations described.
[56] In describing the criteria for determining whether a rule is a general statement of policy
or a substantive rule requiring notice and comment, the Fifth Circuit has relied on the D.C.
Circuit.
See Shalala
,
obligations.”
Chrysler Corp. v. Brown
,
At the outset, it is worth noting that the Court has extensively described how the Memoranda affect rights and obligations in its analysis on whether the Memoranda constitute final agency action. See supra II.B.2. As a review, the Memoranda affect rights and obligations in at least three ways. First, the February 18 Memorandum commands that DHS abdicate its obligations under Sections 1226(c) and 1231(a)(2) to detain all aliens within the ambit of those provisions and that the detention occur at or for a specified time. Compare §§ 1226(c) and 1231(a)(2) with (Dkt. No. 19-2 at 4–7).
Second, the Memoranda also create financial obligations for Texas that would not have existed but for the Memoranda. Based on the record, Texas will be required by law to bear some of the cost of providing Emergency Medicaid to eligible aliens who fall within the ambit of Sections 1226(c) or 1231(a)(2). See supra II.B.2.b. The legal obligation to provide these aliens with these services would not exist if deprioritized aliens were taken into federal custody at the time of their release from state custody as mandated by Section 1226(c), or if they were detained during the removal period, as required by Section 1231(a)(2).
Finally, as described above, the Memoranda affect the rights of some aliens already
in detention.
See supra
II.B.2.b. As another court has already found, the Memoranda
make a nonpriority alien’s removal “unlikely to be imminent.”
See Hussein S.M.
, 2021
WL 1986125, at *3. This status, in turn, entitles certain aliens to release from detention.
See id.
;
see also Zadvydas
,
For these reasons, the Court finds that the Memoranda affect the rights and obligations of those within the Memoranda’s regulatory sphere—DHS, the states, and certain aliens. This consideration weighs against finding that the Memoranda are general statements of policy.
Next, the Court considers whether the Memoranda give the agency and its decisionmakers sufficient discretion to be considered a general statement of policy. They do not.
“General statements of policy” are those “statements issued by an agency to advise
the public prospectively of the manner in which the agency proposes to exercise a
discretionary power.”
Lincoln
,
The key inquiry . . . is the extent to which the challenged policy leaves the agency free to exercise its discretion to follow or not to follow that general policy in an individual case, or on the other hand, whether the policy so fills out the statutory scheme that upon application one need only determine whether a given case is within the rule’s criteria.
As long as the agency remains free to consider the individual facts in the various cases that arise, then the agency action in question has not established a binding norm.
Shalala
,
The core feature of the Memoranda is their prioritization of immigration enforcement actions for some classes of aliens to the exclusion of others. The Memoranda state explicitly that “[e]nforcement and removal actions [against aliens who fall within] the [priority groups] described . . . are presumed to be a justified allocation of ICE’s limited resources.” See, e.g., (Dkt. No. 19-2 at 4–6) (alterations added) (emphasis added). And although the February 18 Memorandum purports to say that actions against nonprioritized aliens “may also be justified” and that “the interim priorities do not require or prohibit the arrest, detention, or removal of any noncitizen,” an agent’s discretion in this regard appears so constrained as to be illusory. ( Id. at 4). Specifically, the February 18 Memorandum stipulates that “[ a ] ny civil immigration enforcement or removal actions that do not meet the above criteria for presumed priority cases will require preapproval from the [Field Office Director (FOD)] or [Special Agent in Charge (SAC)].” ( Id. at 7) (emphasis added). The preapproval constraint greatly constricts the normal discretion ICE agents enjoy while exercising their statutory and regulatory duties on behalf of the agency. See (Dkt. No. 19-4 at ¶ 29) (“This policy requires field agents to obtain special permission before engaging in routine enforcement.”); cf. 8 U.S.C. § 1357; 8 C.F.R. § 287.5. Put differently, agents now need the approval of a FOD or SAC to conduct otherwise routine enforcement operations. (Dkt. No. 19-2 at 7); (Dkt. No. 19-4 at ¶ 29).
Moreover, the Memorandum details a mandatory process for receiving such preapproval. Indeed, “[i]n deciding to undertake an enforcement action or removal, the agent or officer must consider, in consultation with his or her leadership, the nature and recency of the noncitizen’s convictions, the type and length of sentences imposed, whether the enforcement action is otherwise an appropriate use of ICE’s limited resources, and other relevant factors.” (Dkt. No. 19-2 at 7) (emphasis added). “In requesting . . . preapproval, the officer or agent must raise a written justification through the chain of command , explaining why the action otherwise constitutes a justified allocation of limited resources, and identify the date, time, and location the enforcement action or removal is expected to take place.” ( Id. ) (emphases added). In other words, an agent or officer seeking to detain an alien or conduct other enforcement actions is required to consider certain factors in determining whether to conduct the proposed enforcement action, put this justification in writing, work this written justification through a chain of command and, most importantly, wait for approval to conduct what would otherwise be a routine enforcement action. See ( ); (Dkt. No. 19-4 at ¶ 29).
If this cumbersome preapproval requirement and process were not enough in general to limit the agents’ usual discretion, the February 18 Memorandum goes even further by expressly describing two specific scenarios in which an agent’s decision- making power is greatly reduced. First, the February 18 Memorandum states that “[t]he approval to carry out an enforcement action against a particular noncitizen will not authorize enforcement actions against other [nonprioritized] noncitizens encountered during an operation.” [57] (Dkt. No. 19-2 at 7). Simply put, the February 18 Memorandum flatly denies agents the ability to exercise discretion over non-preapproved, nonprioritized aliens “during an operation.” Second, the February 18 Memorandum limits agency discretion in detaining and conducting other enforcement actions against nonpriority aliens where exigent circumstances exist. See (Dkt. No. 19-2 at 7). To be sure, the Memorandum allows for detention of, and other enforcement actions against, nonpriority aliens without preapproval when obtaining such preapproval would be “impracticable.” ( Id. ). And while the Memorandum acknowledges that “it is impossible to preconceive all such circumstances” in which obtaining preapproval may be impracticable, it nevertheless states that circumstances where obtaining preapproval is impracticable “generally will be limited to situations where a noncitizen poses an imminent threat to life or an imminent substantial threat to property.” ( Id. ) (emphasis added). Yet, even in these circumstances, the February 18 Memorandum requires approval, albeit after the enforcement action is conducted. ( Id. ). Specifically, the agent is required , within 24 hours of the enforcement action having been conducted, to “explain the exigency, where and when the enforcement activity took place, and whether the noncitizen is currently detained.” ( Id. at 7 n.7). [58] Once again, in a situation in which the agent’s discretion is likely at its zenith—where exigent circumstances exist—the February 18 Memorandum severely restricts the agent’s ability to exercise it.
In light of these policies, it is perhaps no surprise that the States provide evidence
suggesting that ICE agents and officers will treat the Memorandum as a list of
instructions rather than mere guidance.
See
(Dkt. No. 19-4 at ¶ 36). Specifically, a former
Acting Director of ICE with more than 32 years of service in the agency testified that, “[a]s
a practical matter, ICE officers are likely to treat the ‘priorities’ as categorical rules rather
than presumptions to be rebutted on a case-by-case basis.” (
Id.
at ¶ 29). Also
unsurprisingly, there is evidence in the record tending to show that these “categorical
rules” in the February 18 Memorandum are already hampering enforcement actions and
will continue to deter agents and officers from exercising their discretion in determining
whether to conduct enforcement actions in the future.
See
(Dkt. No. 19-3 at 3–8); (Dkt.
No. 46 at ¶ 17);
cf. Texas DAPA
,
In addition to limiting the discretion of individual ICE agents and officers, the Memoranda also restrict the discretion of entire ICE field offices. See (Dkt. No. 19-2 at 6); (Dkt. No. 42-2 at 6). Specifically, the February 18 Memorandum states that “ICE will require field offices to coordinate their operations and obtain preapproval for enforcement and removal actions that do not meet the above criteria for presumed priority cases.” ( ). In other words, the Memoranda not only require individual agents and officers to receive preapproval before conducting enforcement actions against aliens falling outside the three priority groups; they also appear to bind the field offices themselves to the preapproval process delineated in the February 18 Memorandum.
For these reasons, the Court finds that the amount of discretion that the February 18 Memorandum confers to the agency and its decisionmakers in conducting routine enforcement actions weighs against classifying the Memorandum as a general statement of policy. Weighing this factor along with the rights and obligations affected, the Court concludes that the Memoranda do not constitute a general statement of policy.
Procedural Rule
Even if the February 18 Memorandum is not a general statement of policy, it may
nevertheless be exempt from notice and comment if it is a rule “of agency organization,
procedure, or practice.” 5 U.S.C. § 553(b)(A);
see also Texas DAPA
,
The first test used by the Fifth Circuit to determine whether a rule is procedural is
the “substantial impact test.”
See Texas DAPA
,
In making this determination, the question is not “whether the rule is ‘substantive’
or ‘procedural,’ but rather whether the rule will have a ‘substantial impact’ on those
regulated.”
Phillips Petroleum Co. v. Johnson
,
In determining whether the rule will have a “substantial impact” on those
regulated, the Court may consider whether the rule creates legal or financial obligations
for the plaintiff and whether the rule restricts the discretion of agency officials.
See Texas
DAPA
,
Considering these criteria, the Memoranda satisfy the substantial impact test. First, as discussed above, the Memoranda affect at least one of Texas’s legal obligations. See supra II.B.2.b. Specifically, they affect Texas’s legal and financial obligations to partially fund Emergency Medicaid to aliens who fall within the ambit of Sections 1226(c) or 1231(a)(2) but, pursuant to the Memoranda, are not detained by ICE when they are released from state custody or during the removal period. The Memoranda also have a substantial impact because, as just described, they limit the discretion exercised by ICE field offices, agents, and officers. In sum, the February 18 Memorandum mandates a process for ICE field offices and agents to follow for obtaining preapproval to detain aliens the Memoranda deem to be nonpriorities. This mandatory policy restricts DHS from exercising discretion and conducting routine enforcement actions against aliens the Memoranda classify as nonpriorities. This curtailment of agency discretion in conducting routine civil immigration enforcement actions is yet another substantial impact the Memoranda have on those they regulate.
Finally, the Memoranda have a substantial impact on certain aliens already in
detention. As discussed above,
see supra
II.B.2.b, and as another district court’s ruling
demonstrates, the Memoranda make certain nonpriority aliens’ removal “unlikely to be
imminent,” thus entitling some of those aliens to be released from detention.
Hussein
S.M.
,
The second test for determining whether a rule is procedural asks the Court to
weigh two considerations. First, the Court must consider the “effect on those interests
ultimately at stake in the agency proceeding.”
Texas DAPA
,
Second, the Court must assess whether the Memoranda affect the substantive
standards by which DHS determines whether to detain certain aliens.
See Texas DAPA
,
Texas Has Met Its Burden on Its Procedural APA Claim In sum, the Court finds that the Memoranda do not constitute a rule that is exempt from the notice and comment requirements of Section 553. The Memoranda are not general statements of policy because they have a binding effect insofar as they presently affect certain rights and obligations and do not afford sufficient discretion to DHS and its decisionmakers. Likewise, the Memoranda are not procedural rules because they have a significant impact on DHS, the states, and certain aliens. Therefore, the Court finds Texas has shown a substantial likelihood of success on the merits of its procedural APA claim.
2. Irreparable Harm
In addition to demonstrating a substantial likelihood of success on the merits, the
States must demonstrate “a substantial threat of irreparable injury if the injunction is not
issued.”
Texas DAPA
,
The States argue their injuries are irreparable because they will incur financial costs that are unrecoverable. (Dkt. No. 18 at 40–41); (Dkt. No. 51 at 31). The States also argue they will suffer irreparable harm because non-detention will result in increased crime. ( ). In response, the Government contends there is no irreparable harm because “there is not a significant impact on the States.” (Dkt. No. 42 at 50). The Court concludes the States have demonstrated they are likely to suffer irreparable harm for the following reasons.
As discussed in this Court’s standing analysis, the States have presented evidence
demonstrating the Memoranda cause financial harm in the form of increased costs for
detention facilities.
See supra
II.A.1.a. The States have also demonstrated the Memoranda
harm their interests as
parens patriae
because of an increase in criminal activity resulting
from the Memoranda’s implementation.
See supra
II.A.1.b. The Court found these two
injuries were concrete, imminent, and traceable to the Memoranda. The Court also
concludes the threat of injuries to the States is “likely” as that term is used by the Supreme
Court.
See Winter
,
There is also no indication the States can recover for their injuries. Indeed, there
is no immediately discernable theory under which a state can “pierce the federal
government’s usual sovereign immunity or contrive a remedial cause of action sufficient
to recover from its budgetary harm.”
Texas I
, ____ F. Supp. 3d at ____,
As for injuries to the States’ interests as
parens patriae
, the Supreme Court has
determined that “law enforcement and public safety interests” can constitute irreparable
harm.
See Maryland v. King
,
3. The Balance of Equities and the Public’s Interest
Having concluded the States have satisfied the first two elements for obtaining a
preliminary injunction, the Court must now determine whether “the threatened injury
outweighs any harm that may result from the injunction to the non-movant” and whether
“the injunction will not undermine the public interest.”
Valley v. Rapides Parish Sch. Bd.
,
In weighing the equities, a court “must balance the competing claims of injury and
must consider the effect on each party of the granting or withholding of the requested
relief.”
Winter
,
The States argue the Government has no interest in the implementation and enforcement of the unlawful policy contained in the Memoranda. (Dkt. No. 18 at 41–42). The States contend the public interest is furthered when the Executive Branch follows congressional mandates. See ( Id. at 42); (Dkt. No. 51 at 31–32). In response, the Government characterizes any injunction as a restraint on “core Article II authority” which “outweighs any harm to the States and undermines the public interest.” (Dkt. No. 42 at 55). In the Government’s view, an injunction would inhibit its ability to prioritize limited resources, cause confusion within the Executive Branch, and impede any effort to draft final guidance. ( Id. at 55–56). The Government also contends the public interest is served when it has the ability “to prioritize national security, border security, and public safety.” ( at 57). Considering these arguments, the Court finds the States have the upper hand.
Notably, without a preliminary injunction, the States will be “threatened with substantial harm” to their state budgets and interests as parens patriae . See Burwell , 227 F. Supp. 3d at 694. As discussed earlier, the Court is unpersuaded by the Government’s claim that the States’ injuries are “speculative.” See (Dkt. No. 42 at 22–23). Instead, the Court has found the States’ injuries from costs relating to detention facilities and increased criminal activity are traceable to the implementation of the Memoranda. See supra II.A.2.
Although the States face substantial harm from the implementation of the
Memoranda, the Government nevertheless attempts to show that the harm it faces is
worse. The Government, however, postulates harms “that are less substantial” and
“vague.”
See Texas DAPA
,
The Government next complains that an injunction would create inefficiency
because it would inhibit the Executive Branch’s ability to prioritize limited resources.
[60]
(Dkt. No. 42 at 55–56). The Court is unpersuaded. First, in at least one case, the Fifth
Circuit has concluded that any inefficiency resulting from an injunction inhibiting the
Executive’s ability to prioritize certain immigration-enforcement actions is “outweighed
by the major financial losses [that] states face.”
See Texas DAPA
,
To this point, “the public is served when the law is followed,”
Daniels Health Scis.,
L.L.C. v. Vascular Health Scis., L.L.C.
,
Finally, the Government argues an injunction would result in confusion inside the Executive Branch because immigration officials will be left with little to no guidance on how to exercise their enforcement discretion. (Dkt. No. 42 at 56). Relatedly, the Government also theorizes that injunctive relief would impede its effort to draft final guidance. ( at 56–57). These arguments are puzzling because, with or without an injunction in place, the Government is free to craft new guidance or instruct Executive Branch officials to act in a certain manner so long as such guidance and instructions comport with the law ( i.e. , congressional mandates).
Given the discussion above, the Court concludes the potential harms to the States arising out of the Memoranda outweigh any potential harms to the Government. The Court also concludes the public interest is served, rather than undermined, by an injunction. Thus, the States have satisfied all four elements for a preliminary injunction.
C. S COPE O F R ELIEF
The States have satisfied the standard for a preliminary injunction. This conclusion raises two additional inquiries: the geographic scope of the injunction as well as the nature of the injunctive remedy. The Court addresses each in turn.
1. Geographic Scope
The States request a nationwide injunction. (Dkt. No. 18 at 42–43). The Court has
expressed its substantial skepticism of nationwide injunctions.
Texas
, ____ F. Supp. 3d at
____,
The Court finds both circumstances exist here. First, the Memoranda affect
national immigration policy, which is designed to be uniform.
See id.
at 187–88. Second,
given what has been detailed in the Court’s standing analysis, a geographically limited
injunction is insufficient to protect the States from irreparable harm because aliens not
detained pursuant to the Memoranda in other states are able to move to Texas and
Louisiana.
See supra
II.A.2 & II.A.3;
see also Texas DAPA
, 809 F.3d at 188. The States
submitted evidence showing that “more than 50,000 noncitizens moved into Texas from
another U.S. State in 2019.” (Dkt. No. 18 at 42) (citing Dkt. No. 19-21);
see also
(Dkt. No.
51 at 35) (citing Dkt. Nos. 19-21–19-23). Accordingly, a nationwide injunction is
appropriate.
See Texas DAPA
,
The Government offers a handful of arguments in opposition to issuing a nationwide injunction. None carry the day.
First, the Government argues nationwide relief is inappropriate because lawsuits
concerning the Memoranda in other jurisdictions have been unsuccessful. (Dkt. No. 42
at 60). This misses the point. In determining the appropriate scope of an injunction, the
Court’s task is to fashion a remedy that prevents the plaintiffs
in this case
from suffering
irreparable harm.
See ODonnell v. Harris County
,
Next, the Government argues nationwide relief is generally ill-advised because, in
effect, any attempt by the Government to create a new federal policy is thwarted by “a
single successful challenge” to the policy, even if other challenges to the policy are
unsuccessful. (Dkt. No. 42 at 60) (quoting
Dep’t of Homeland Sec.
, ____ U.S. at ____, 140
S.Ct. at 601 (Gorsuch, J., concurring in the grant of a stay)). Frankly, the Court shares
these concerns. Nonetheless, the Court, in fashioning a proper remedy, is bound by
precedent,
see Texas DAPA
,
Third, the Government attempts to distinguish this case from
Texas DAPA
and
Texas I
by asserting that this case involves
individual
detention decisions rather than a
blanket policy pausing enforcement actions against aliens. (Dkt. No. 42 at 60). To be sure,
individual enforcement decisions are “inherently discretionary and non-uniform,”
Texas
I
, ____ F. Supp. 3d at ____,
Finally, the Government argues that, because the States’ injuries are supposedly
premised on detainers in Texas and Louisiana, an injunction limited in geographic scope
to the boundaries of those two states will sufficiently protect them from any irreparable
harm they may suffer due to the Memoranda. (Dkt. No. 42 at 60–61). The Court disagrees
for two reasons. First, the Government incorrectly asserts that the States’ injuries are
premised on detainers when the States’ injuries are, in fact, premised on the increased
costs to their detention systems and their interests as
parens patriae
.
See
(Dkt. No. 1 at 15–
16); (Dkt. No. 18 at 15–16, 18, 35–37). Second, in arguing that the geographic scope of the
injunction should be limited to the boundaries of Texas and Louisiana, the Government
ignores that, if aliens are not detained in other states, those aliens can migrate to Texas
and Louisiana thus causing them harm.
See Texas DAPA
,
Thus, for the foregoing reasons, the States are entitled to a nationwide injunction. 2. Remedy
As stated above, “the scope of injunctive relief is dictated by the extent of the
violation established.”
ODonnell
, 892 F.3d at 163 (quoting
Califano
, 442 U.S. at 702, 99
S.Ct. at 2558);
see also Goodhart
,
IV. CONCLUSION
Although this case involves many issues of administrative and immigration law, its core concerns whether the Executive Branch may implement a policy that directly conflicts with laws that Congress enacted. The answer is no. In the end, through all their detailed explanations of the Executive’s seemingly unending discretion, the Government substantially undervalues the People’s grant of “legislative Powers” to Congress.
Because the States have demonstrated that there is a substantial likelihood that portions of the Memoranda direct Executive Branch officials to act in a way that is contrary to Sections 1226(c) and 1231(a)(2), those sections of the Memoranda cannot stand and are hereby enjoined. Additionally, the Court enjoins the sections of the Memoranda described above because the States have demonstrated a substantial likelihood that the policy concerning detention of certain aliens set forth in the Memoranda is arbitrary and capricious under the APA and the Memoranda fail to comply with the APA’s notice and comment requirement.
For the foregoing reasons, the Court GRANTS the States’ Motion for Preliminary Injunction. (Dkt. No. 18). Therefore, it is hereby ORDERED that:
1. Defendants and all their respective officers, agents, servants, employees, attorneys, and other persons who are in active concert or participation with them are hereby ENJOINED and RESTRAINED from enforcing and implementing the policies described in:
a. Section B of the January 20 Memorandum entitled “Interim Civil Enforcement Guidelines.” (Dkt. No. 1-1 at 3–4); b. The section entitled “Civil Immigration Enforcement and Removal Priorities” in the February 18 Memorandum. (Dkt. No. 1-2 at 4–6); and
c. The section entitled “Enforcement and Removal Actions: Approval, Coordination, and Data Collection” in the February 18 Memorandum. [62] (Dkt. No. 1-2 at 6–8).
2. This Preliminary Injunction is granted on a nationwide basis and prohibits enforcement and implementation in every place the Government has jurisdiction to enforce and implement the January 20 and February 18 Memoranda.
3. This Preliminary Injunction shall remain in effect pending a final resolution of the merits of this case or until a further Order from this Court, the United States Court of Appeals for the Fifth Circuit, or the United States Supreme Court.
To ensure compliance with this Preliminary Injunction, the Court further ORDERS the following:
1. By September 3, 2021, the Government must file with the Court the legal standard it is abiding by with respect to the detention of aliens covered by or subject to 8 U.S.C. § 1226(c)(1)(A)–(D) given the Court’s injunction of the Memoranda at issue in this lawsuit. The information should state with specificity what guidance, protocols, or standards control the detention of these aliens in light of the fact that the Memoranda have been enjoined.
2. By September 3, 2021, the Government must file with the Court the legal standard it is abiding by with respect to the detention of aliens covered by or subject to 8 U.S.C. § 1231(a)(2) given the Court’s injunction of the Memoranda at issue in this lawsuit. The information should state with specificity what guidance, protocols, or standards control the detention of aliens in light of the fact that the Memoranda have been enjoined.
3. Starting in September 2021, the Government must file with the Court on the 5th day of each month a report stating the number of aliens known to the Government, who are covered by or subject to 8 U.S.C. § 1226(c)(1)(A)–(D), who were released from custody during the previous month, and whom ICE did not detain immediately upon their release.
For each of these aliens, provide under seal the alien’s last known residence or address and the offense for which the alien had been incarcerated. Additionally, for each alien not detained, the Government shall make and retain a contemporaneous record of the reason why the alien was not detained and the individual who made that specific determination.
4. Starting in September 2021, the Government must file with the Court on the 5th day of each month a report stating the number of aliens in their removal period as defined in 8 U.S.C. § 1231(a)(1). Of those, provide the number who were not detained pursuant to 8 U.S.C. § 1231(a)(2).
For each of these aliens not detained, provide under seal the alien’s last known residence or address.
Additionally, for each alien not detained, the Government shall make a contemporaneous record of the reason why the alien was not detained and the individual who made that specific determination.
This Memorandum Opinion and Order does not prohibit the Government from carrying out or adhering to the January 20 Memorandum’s sections entitled “A. Comprehensive Review of Enforcement Policies and Priorities” and “D. No Private Right Statement.” [63] This Memorandum Opinion and Order also does not prohibit the Government from carrying out or adhering to the February 18 Memorandum’s sections entitled “Purpose,” “Background,” “Questions,” and “No Private Right Statement.”
No security bond is required under Federal Rule of Civil Procedure 65(c). It is SO ORDERED.
Signed on August 19, 2021.
_____________________________________ D REW B. T IPTON UNITED STATES DISTRICT JUDGE
Notes
[1] The term “Government” used throughout this Memorandum Opinion and Order refers to the United States, the agencies, and the individuals sued in their official capacity.
[2] Under Section 1226(c), “the Attorney General shall take into custody” certain aliens who have either committed specified offenses or who are otherwise deemed deportable “when the alien is released” from custody. 8 U.S.C. § 1226(c) (emphasis added). Likewise, Section 1231(a)(2) provides, “the Attorney General shall detain the alien” “during [the alien’s] removal period.” 8 U.S.C. § 1231(a)(2) (emphasis added).
[3] The States also seek an injunction compelling the Government to comply with the detention mandates in Sections 1226(c) and 1231(a)(2). (Dkt. No. 18).
[4] In this Memorandum Opinion and Order, the Court does not address the States’
likelihood of success on claims that the Memoranda are unlawful because they violate: (1) the
Agreements between Texas and Louisiana and the Department of Homeland Security (“DHS”);
and (2) the Constitution’s requirement that the President “take Care that the Laws be faithfully
executed.” (Dkt. No. 1 at ¶¶ 122–31). In withholding a ruling on these claims, the Court is
mindful that to succeed on their Motion, the States need only demonstrate a substantial likelihood
of success on “at least one” claim, which they have.
See Texas v. United States
, 86 F. Supp. 3d
591 , 672 (S.D. Tex. 2015),
aff’d
,
[5] In outlining the extensive background and history involved in this case, the factual statements made herein (except where the Court is discussing a factual dispute) should be (continue)
[7] The text of the statute says “sentence;” however, the Court notes it should probably be “sentenced.”
[8] Federal regulations permit the temporary detention of certain incarcerated aliens at
DHS’s request for a period not to exceed 48 hours “in order to permit assumption of custody” of
the detainee by DHS. 8 C.F.R. § 287.7(d). Note at least one state court determined that beyond
the 48-hour mark, state authorities must release the incarcerated aliens “[i]f the federal
government
fails to apply
federal law and take custody of [the criminal aliens] within the time
limit set by federal regulations.”
Ochoa v. Bass
,
[9] The importance of detainers aside, note that “[t]here are certainly other mechanisms available to assist in implementing the federal apprehension of criminal aliens.” at 175. For instance, written agreements between the Executive Branch and states and local governments pursuant to 8 U.S.C. § 1357(g) may permit state and local law enforcement “to perform a function of an immigration officer in relation to the investigation, apprehension, or detention of aliens in the United States (including the transportation of such aliens across State lines to detention centers).” 8 U.S.C. § 1357(g). In another example, the Executive Branch may also enter an “inter- governmental service agreement” with local and state jails to authorize such detention centers to house prisoners on behalf of DHS. Lasch, supra , at 175.
[10] The January 20 Memorandum excludes from the 100-day pause any alien with a final removal order who: 1) According to a written finding by the Director of ICE, has engaged in or is suspected of terrorism or espionage, or otherwise poses a danger to the national security of the United States; or 2) Was not physically present in the United States before November 1, 2020; or 3) Has voluntarily agreed to waive any rights to remain in the United States, provided that he or she has been made fully aware of the consequences of waiver and has been given a meaningful opportunity to access counsel prior to signing the waiver; or 4) For whom the Acting Director of ICE, following consultation with the General Counsel, makes an individualized determination that removal is required by law. (Dkt. No. 1-1 at 4–5) (footnote omitted).
[11] The January 20 Memorandum provides that “the Acting Director of ICE shall issue operational guidance on the implementation of these priorities.” (Dkt. No. 1-1 at 4).
[12] 5 U.S.C. § 706(2)(A), (C).
[13] 5 U.S.C. § 706(2)(A).
[14] 5 U.S.C. § 553.
[15] As this Court noted in
Texas I
, DHS, “U.S. Customs and Border Protection . . ., U.S.
Immigration and Customs Enforcement . . ., and U.S. Citizenship and Immigration Services . . .
entered into a Memorandum of Understanding Between Texas and DHS concerning certain
aspects of the nation’s immigration laws.” ___ F. Supp. 3d at ____,
[16] This statement comes directly from the Chief of Staff of the Texas Department of
Criminal Justice. (Dkt. No. 46 at 2). It is unclear whether the “ICE officials” quoted by the Chief
of Staff made this statement in a capacity excluding the statement from the rule against hearsay.
See
Fed. R. Evid. 801(d)(2). But even if hearsay, this Court may rely on the statement at the
preliminary injunction phase.
See Sierra Club, Lone Star Chapter v. FDIC
,
[17] As the Court discusses infra , the federal government reimbursed Texas for a miniscule fraction of its costs for detaining criminal aliens as part of a statutorily mandated program that seeks to help states with the burden of incarcerating criminal aliens. See 8 U.S.C. § 1231(a)(1)(A).
[18] Because the States have put forth sufficient evidence to demonstrate a concrete and imminent injury regarding Texas’s detention costs and parens patriae , see infra II.A.1., the Court need not address the States’ alleged financial injuries arising from unanticipated education and healthcare-related expenses.
[19] The fact that an expansion of parens patriae to citizens-at-large in Louisiana v. Texas was determined in a case involving the Supreme Court’s original jurisdiction does not restrict the scope of quasi-sovereign interests in non-original jurisdiction cases. If anything, the opposite is (continue)
[20] Notably, the statutory basis for SCAAP resides near one of the detention statutes at issue in this case, 8 U.S.C. § 1231(i).
[21] In sum, having concluded that the States have standing, the Court must exercise
jurisdiction.
See Cohens v. Virginia
,
[22] Section 1252(a)(5) provides in relevant part: “Notwithstanding any other provision of law (statutory or non-statutory), including section 2241 of Title 28, or any other habeas corpus provision, and sections 1361 and 1651 of such title, a petition for review filed with an appropriate court of appeals in accordance with this section shall be the sole and exclusive means for judicial review of an order of removal entered or issued under any provision of this chapter, except as provided in subsection (e).” 8 U.S.C. § 1252(a)(5). Section 1252(b)(9) states in part: “Judicial review of all questions of law and fact, including interpretation and application of constitutional and statutory provisions, arising from any action taken or proceeding brought to remove an alien from the United States under this subchapter shall be available only in judicial review of a final order under this section.” 8 U.S.C. § 1252(b)(9).
[23] The Court in
Texas I
held that Section 1231(h) was unambiguous. ___ F. Supp. 3d at ____,
[24] Indeed, even the Executive Branch in a website has stated that incarcerated individuals may apply for Medicaid coverage in their respective states and thereafter be eligible for benefits after release from custody. See HealthCare.gov, Health coverage for incarcerated people , https://www.healthcare.gov/incarcerated-people/.
[25] The Court is also concerned that the Memoranda affect the States’ legal obligation to
provide a public-school education to certain noncitizens following their release from juvenile
detention. For example, Texas is required by both federal and state law to provide noncitizen
children with a public-school education.
See generally Plyler
,
[26] A district court in Florida concluded the February 18 Memorandum is unreviewable under the APA because it did not constitute final agency action. Florida. v. United States , No. 8:21- CV-541-CEH-SPF, 2021 WL 1985058, at *9 (M.D. Fla. May 18, 2021). The Court respectfully disagrees with this conclusion for the reasons set forth herein.
[27] As another Texas court said of a similar change in litigation position, “[b]ut that was
then, and this is now.”
Texas v. United States
,
[28] Likewise, the Eleventh Circuit concluded, “dicta from the Supreme Court is not
something to be lightly cast aside.”
Schwab v. Crosby
, 451 F.3d 1308, 1325 (11th Cir. 2006)
(collecting cases with similar findings) (quoting
Peterson v. BMI Refractories
,
[29] The Court also notes that its decision in
Texas I
did not rely entirely on the protection of
“public or private interests” rationale explained in
Richbourg Motor Co.
and
Escoe
to support its
finding of a “stronger indication” that the “shall” in 8 U.S.C. § 1231(a)(1)(A) connoted a
requirement.
See Texas I
, ____ F. Supp. 3d at ____,
[30] In
Texas I
, the Government argued that Section 1231(a)(1)(A)’s use of the word “shall”
could not have meant “must” because at least one other “shall” in Section 1231 is not mandatory
(at least according to the Government).
Texas I
, ____ F. Supp. 3d at ____,
[31] For criminal aliens in state custody, the 90-day period does not start until they are released from state confinement. See 8 U.S.C. § 1231(a)(1)(B)(iii).
[32] This proposition does not include circumstances in which the President is asked to enforce a law that is unconstitutional or, more specifically, a law that usurps Executive authority . See Brett M. Kavanaugh, Our Anchor for 225 Years and Counting: The Enduring Significance of the Precise Text of the Constitution , 89 Notre Dame L. Rev. 1907, 1911 (2014); Steven G. Calabresi & Saikrishna B. Prakash, The President’s Power to Execute the Laws , 104 Yale L.J. 541, 621–22 (1994). After all, the Constitution commands that, “[b]efore he enter on the Execution of his Office, [the President] shall take the following Oath or Affirmation: —‘I do solemnly swear (or affirm) that I will faithfully execute the Office of President of the United States, and will to the best of my Ability, preserve, protect and defend the Constitution of the United States .’” U.S. Const. art. II, § 1, cl. 8 (emphasis added). The Government, however, does not assert that Sections 1226(c) or 1231(a)(2) are unconstitutional. See (Dkt. No. 42).
[33] Specifically, the First Test Act, enacted in 1673, “was designed to ensure that anyone holding public office, whether civil or military, would denounce the Roman Catholic doctrine of transubstantiation and receive the Anglican sacrament. Parliament’s intention was to exclude Roman Catholics, who could not conscientiously take these tests, from holding public office more than temporarily.” Delahunty & Yoo, supra , at 805–06. The Second Test Act, enacted in 1678, “made certain exceptions (including one for the King himself), but essentially continued this exclusionary policy.” Id. at 806.
[34] This ire towards James II’s use of the dispensing power is best captured in the English Bill of Rights, which says: Whereas the late King James the Second, by the assistance of divers evil counsellors, judges and ministers employed by him, did endeavour to subvert and extirpate the Protestant religion and the laws and liberties of this kingdom; By assuming and exercising a power of dispensing with and suspending of laws and the execution of laws without consent of Parliament[.] The Bill of Rights, 1 W. & M., c. 1 (1689).
[35] Specifically, the English Bill of Rights of 1689 provides: “[T]he pretended power of suspending the laws or the execution of laws by regal authority without consent of Parliament is illegal” and that “the pretended power of dispensing with laws or the execution of laws by regal authority, as it hath been assumed and exercised of late, is illegal.” The Bill of Rights, 1 W. & M., c. 2 (1689).
[36] These grievances are as follows: He has refused his Assent to Laws, the most wholesome and necessary for the public good; He has forbidden his Governors to pass Laws of immediate and pressing importance, unless suspended in their operation till his Assent should be obtained; and when so suspended, he has utterly neglected to attend to them. Declaration of Independence ¶¶ 3–4.
[37] Not all states ratified constitutions at the time of the founding. Indeed, “two states,
Connecticut and Rhode Island, retained their Colonial Charters issued by King Charles II and did
not try to write new state constitutions or declarations of rights” at this time. Calabresi, Agudo,
& Dore,
supra
, at 1543;
see also Narragansett Indian Tribe of R.I. v. State,
[38] In fact, “[a]t the Constitutional Convention, the delegates unanimously rejected a proposal to grant the President suspending authority.” See Price, supra , at 693. The First Congress did, however, have an opportunity to bar the President from possessing such power in the Bill of Rights but failed to do so, “despite proposals from several state ratifying conventions that the Constitution be amended to include such a provision.” Id. at 694. But “any negative inference from Congress’s failure to act on these proposals seems weak.” Instead, “[i]t seems more likely that James Madison and other members of the First Congress failed to include an antisuspension provision in the Bill of Rights precisely because they thought the Constitution already made it clear enough that the President lacked such powers.” Id.
[39] “The executive Power shall be vested in a President of the United States of America.” U.S. Const. art. II, § 1.
[40] “He shall from time to time give to the Congress Information of the State of the Union, and recommend to their Consideration such Measures as he shall judge necessary and expedient; he may, on extraordinary Occasions, convene both Houses, or either of them, and in Case of Disagreement between them, with Respect to the Time of Adjournment, he may adjourn them to such Time as he shall think proper; he shall receive Ambassadors and other public Ministers; he shall take Care that the Laws be faithfully executed, and shall Commission all the Officers of the United States.” U.S. Const. art. II, § 3.
[41] “ Care : Regard; charge; heed in order to protection and preservation.” Samuel Johnson, A Dictionary of the English Language (1755). https://johnsonsdictionaryonline.com/1755/care_ns. “ Care : Charge or oversight, implying concern for safety and prosperity.” Noah Webster, American Dictionary of the English Language (1828). http://webstersdictionary1828.com/Dictionary/care.
[42] “ Faithfully : Without failure of performance; honestly; exactly.” Johnson, supra. https://johnsonsdictionaryonline.com/1755/faithfully_adv. “ Faithfully : With strict adherence to allegiance and duty.” Webster, supra. http://webstersdictionary1828.com/Dictionary/faithfully.
[43] “ Execute : To put in act; to do what is planned or determined.” Johnson, supra. https://johnsonsdictionaryonline.com/1755/execute_va. “ Execute : To carry into effect; as, to execute law or justice.” Webster, supra. http://webstersdictionary1828.com/Dictionary/execute.
[44] As stated above, the Court, at this time, declines to weigh in on the merits of the States’ separate claim that the Memoranda violate the Take Care Clause. See footnote 4. However, the Court is interested in further briefing on this claim at the next stage of this litigation. In addition to any issues the Parties would like to bring to the Court’s attention, the Parties should focus part of their briefing on whether the States can bring a Take Care Clause claim independent of or in conjunction with their APA claims.
[48] In so doing, the Government essentially foregoes any zone-of-interest challenge on the States’ other APA claims, that is, those based on Section 1226(c) and those which are arguably not based on any of the statutes in question ( i.e ., the arbitrary and capricious and notice and comment claims).
[49] In a status conference with the Parties on July 2, 2021, the Court asked whether the
Government intended to file the administrative record for review. The Government declined
stating that it was unnecessary at this stage of the litigation. (July 2, 2021, Status Conference,
10:00–10:15 A.M.). For their part, the States did not oppose the Government’s position, and,
instead, told the Court that it could dispose of the pending Motion for Preliminary Injunction
without the full administrative record in hand.
Id.
In effect, the Parties agreed that the full
administrative record is not necessary for the Court to rule on the arbitrary and capricious claim
at this time.
“
A court is ordinarily limited to evaluating the agency’s contemporaneous explanation in
light of the existing administrative record
.” Dep’t of Com.,
____ U.S. at ____, 139 S.Ct. at 2556
(citing
Vermont Yankee Nuclear Power Corp. v. Nat. Res. Def. Council, Inc
.,
[50] To the extent the January 20 Memorandum’s 100-day pause on removals and that
Memorandum’s corresponding administrative record are implicated in this action, the Court
adopts its reasoning in
Texas I
and finds that the Government failed to engage in reasoned
decision-making. ____ F. Supp. 3d at ____,
[51] The Court acknowledges it could be argued that, considering the transmissibility of COVID-19, the Executive Branch has chosen to detain fewer aliens to minimize the spread of the virus in detention facilities where it could not ensure proper safety precautions. But it could also be argued (and the CDC Report the Court describes above strongly suggests) that allowing certain aliens—those who would be detained but for the Memoranda—to be released within communities during the pandemic would exacerbate COVID-19’s community spread. Regardless, the Memoranda fail to logically link the Executive Branch’s bare COVID-19 justifications to the new guidance such that the Court can conclude the Memoranda were borne of reasoned decision making.
[52] Not only that, the States’ proposed limited policies are “obvious,” “significant,” and
“viable” to this Court.
See Jones
,
[53] “‘[R]ule’ means the whole or a part of an agency statement of general or particular applicability and future effect designed to implement, interpret, or prescribe law or policy or describing the organization, procedure, or practice requirements of an agency[.]” 5 U.S.C. § 551(4).
[54] Specifically, the APA requires that “[g]eneral notice of proposed rule making shall be published in the Federal Register, unless persons subject thereto are named and either personally served or otherwise have actual notice thereof in accordance with law.” Id. § 553(b) (emphasis added). And that notice shall contain “(1) a statement of the time, place, and nature of public rule making proceedings; (2) reference to the legal authority under which the rule is proposed; and (3) either the terms or substance of the proposed rule or a description of the subjects and issues involved.” Id. The APA also requires an agency to “give interested persons an opportunity to participate in the rule making,” id. § 553(c), and that the “publication or service of a substantive rule shall be made not less than 30 days.” § 553(d).
[55] The Fifth Circuit and the D.C. Circuit have emphasized that “unless a pronouncement
acts prospectively, it is a binding norm. Thus . . . a statement of policy may not have a present
effect[.]”
Shalala
,
[57] Specifically, the February 18 Memorandum states: “The approval to carry out an enforcement action against a particular noncitizen will not authorize enforcement actions against other noncitizens encountered during an operation if those noncitizens fall outside the presumption criteria identified above.” (Dkt. No. 19-2 at 7). In such circumstances, “[a]n approval to take an enforcement action against any other noncitizen encountered who is not a presumed priority must be separately secured as described above.” ( ).
[58] And “when the location of a proposed or completed enforcement action is a courthouse, . . . or a sensitive location, . . . that should be explicitly highlighted in the request.” ( at 7 n.7) (citations omitted).
[59] The Government implicitly invokes prosecutorial discretion with respect to any harm an injunction may cause its Article II authority. See (Dkt. No. 42 at 55). This argument does not warrant much discussion. Indeed, the Court has already extensively discussed the extent of the Executive’s discretion in enforcing a law when a clear congressional mandate is in place. See supra II.B.3.
[60] Relatedly, the Government argues that an injunction would harm it by dismantling the two-step process ICE currently undergoes to determine whether to detain an alien in state custody. See (Dkt. No. 42 at 56). Sections 1226(c) and 1231(a)(2) already mandate which aliens must be detained and the time at or for which the Government must detain the alien.
[61] The States also request that the Court issue a positive injunction to compel agency action unlawfully withheld. (Dkt. No. 18 at 25–26); (Dkt. No. 51 at 33). The Government is opposed. (Dkt. No. 42 at 57–61). Under the APA, a “reviewing court shall . . . compel agency action unlawfully withheld or unreasonably delayed.” 5 U.S.C. § 706(1). The Court reserves ruling on this issue until later in the litigation.
[62] This Memorandum Opinion and Order does not prohibit the Government from carrying out or adhering to the February 18 Memorandum’s subsections entitled “Notice of At-Large Enforcement Actions” and “Weekly Reporting of All Enforcement and Removal Actions.”
[63] This Court previously enjoined Section C of the January 20 Memorandum.
See Texas I
,
___ F. Supp. 3d at ____,