Arizona v. Biden

Citation40 F.4th 375
Decision Date05 July 2022
Docket Number22-3272
Parties State of ARIZONA; State of Montana; State of Ohio, Plaintiffs-Appellees, v. Joseph R. BIDEN, in his official capacity as President of the United States; United States Department of Homeland Security; United States of America; Alejandro Mayorkas, in his official capacity as Secretary of Department of Homeland Security; Chris Magnus, in his official capacity as Commissioner of United States Customs and Border Protection ; Tae D. Johnson, in his official capacity as Acting Director of United States Immigration and Customs Enforcement; Ur Jaddou, in her official capacity as Director of U.S. Citizenship and Immigration Services, Defendants-Appellants.
CourtUnited States Courts of Appeals. United States Court of Appeals (6th Circuit)

ARGUED: Daniel Tenny, UNITED STATES DEPARTMENT OF JUSTICE, Washington, D.C., for Appellants. Benjamin M. Flowers, OFFICE OF THE OHIO ATTORNEY GENERAL, Columbus, Ohio, for Appellees. ON BRIEF: Daniel Tenny, Michael Shih, Sean R. Janda, UNITED STATES DEPARTMENT OF JUSTICE, Washington, D.C., for Appellants. Benjamin M. Flowers, Sylvia May Mailman, OFFICE OF THE OHIO ATTORNEY GENERAL, Columbus, Ohio, Drew C. Ensign, OFFICE OF THE ARIZONA ATTORNEY GENERAL, Phoenix, Arizona, Christian B. Corrigan, OFFICE OF THE MONTANA ATTORNEY GENERAL, Helena, Montana, for Appellees. Daniel R. Suvor, O'MELVENY & MYERS LLP, Los Angeles, California, Gina M. D'Andrea, IMMIGRATION REFORM LAW INSTITUTE, Washington, D.C., for Amici Curiae.

Before: SUTTON, Chief Judge; MOORE and COLE, Circuit Judges.

SUTTON, C.J., delivered the opinion of the court in which MOORE and COLE, JJ., joined. SUTTON, C.J. (pp. –––– – ––––), also delivered a separate concurring opinion.

SUTTON, Chief Judge.

In September 2021, the Secretary of Homeland Security issued a memorandum to his deputies outlining the Department's immigration enforcement priorities and policies. Arizona, Montana, and Ohio filed this lawsuit in the Southern District of Ohio to enjoin its implementation. The district court issued a "nationwide preliminary injunction," applicable to all 50 States, blocking the Department from relying on the priorities and policies in the memorandum in making certain arrest, detention, and removal decisions. Our court granted the National Government's request for a stay pending appeal and ordered expedited briefing and argument. We now reverse the district court's grant of preliminary injunctive relief.

I.

Federal law gives the National Government considerable authority over immigration policy. Consistent with its powers under the U.S. Constitution, U.S. Const. art. I, § 8, cl. 4, Congress has enacted several statutes with respect to detention and removal.

As to detention, the Department of Homeland Security "shall take into custody" those "criminal aliens" who are inadmissible or deportable by reason of their having committed certain crimes—including aggravated felonies, firearm offenses, drug crimes, and crimes of moral turpitude—or their having been involved in terrorist activities. 8 U.S.C. § 1226(c)(1). Removable individuals often are in state custody after a state-law conviction. In such cases, the Department issues a "detainer," a notice to the State that it intends to take custody of the noncitizens upon their release from state custody. 8 C.F.R. § 287.7(a), (d) ; Immigration and Customs Enforcement Policy No. 10074.2 ¶¶ 2.4–2.6. The State then informs the Department of the noncitizens’ release dates and holds them for up to 48 hours to allow the Department to take custody. 8 C.F.R. § 287.7(a), (d). In other cases, the Department has discretion to have "an alien ... arrested and detained pending a decision on whether the alien is to be removed from the United States," and even when it decides to do so, it retains discretion to release the individual with certain conditions. 8 U.S.C. § 1226(a).

As to removal, Congress has provided that, "when an alien is ordered removed," the Department "shall remove the alien from the United States within a period of 90 days," except in specified circumstances. Id. § 1231(a)(1)(A). During that time, the Department "shall detain the alien." Id. § 1231(a)(2). If, however, removal cannot be accomplished within the removal period, continued detention is not required, and the Department has discretion to release noncitizens under supervision. Id. § 1231(a)(3).

Congress has tasked the Secretary of Homeland Security, currently Alejandro Mayorkas, with establishing "national immigration enforcement policies and priorities." 6 U.S.C. § 202(5). On September 30, 2021, the Secretary exercised this power by issuing "Guidelines for the Enforcement of Civil Immigration Law." R.4-1 at 1. This Guidance prioritizes enforcement with respect to noncitizens who pose a threat to national security, public safety, and border security. On November 18, 2021, 11 days before the Guidance took effect, two States from the Ninth Circuit (Arizona and Montana) and one State from the Sixth Circuit (Ohio) filed this action against the United States, the President, the Secretary, the Department, and other Homeland Security officials (collectively, the Department or the National Government). They filed the complaint in the Southern District of Ohio. Soon after filing the complaint, they requested a preliminary injunction to prevent the Department from implementing the Guidance.

From where the claimants stand, the Guidance violates the Administrative Procedure Act on the grounds that it is contrary to law, is arbitrary or capricious, and should have been subjected to notice and comment. The legal centerpiece of their claim is that the Guidance fails to honor 8 U.S.C. § 1226(c)(1), which requires the Department to take custody of certain criminal noncitizens—those convicted of terrorist activities, aggravated felonies, firearm offenses, drug crimes, and crimes of moral turpitude—when they are released from state or federal prison, and fails to honor 8 U.S.C. § 1231(a)(1)(A), which requires the Department to remove noncitizens within 90 days of receiving final orders of removal. Failure to respect the requirements of the two statutes, the three States claim, has led to fewer detainers and removals, prompting the release of more individuals from state custody into their communities and imposing more costs and burdens on them: additional costs to pay for medical and educational services and additional law-enforcement burdens given the risks of recidivism.

After rejecting a host of justiciability challenges to the lawsuit and after concluding the Guidance likely violated the Administrative Procedure Act, the district court issued a "nationwide preliminary injunction." R.44 at 75. The National Government sought emergency relief in this court. We granted a stay pending appeal and ordered expedited briefing and argument. Arizona v. Biden , 31 F.4th 469, 482–83 (6th Cir. 2022).

II.

In deciding whether to grant a preliminary injunction, the federal courts ask several questions. Has the plaintiff established "that he is likely to succeed on the merits"? Would the plaintiff likely suffer "irreparable harm in the absence of preliminary relief"? Does the "balance of equities" tip in the plaintiff's favor? And does "the public interest" favor an injunction? Winter v. Nat. Res. Def. Council, Inc. , 555 U.S. 7, 20, 129 S.Ct. 365, 172 L.Ed.2d 249 (2008). We review the district court's ultimate decision whether to grant a preliminary injunction for abuse of discretion, and we evaluate its legal determinations, "including the likelihood of success on the merits," with fresh eyes. Union Home Mortg. Corp. v. Cromer , 31 F.4th 356, 366 (6th Cir. 2022). We start, and largely stop, with the likelihood-of-success inquiry.

In answering the likelihood-of-success inquiry, we have a few preliminary questions of our own: What exactly does the Guidance do? To what extent does it limit officers’ discretion to enforce our Nation's immigration laws? How in this last respect does the Guidance differ from guidelines issued by past administrations?

The memorandum offers "guidance for the apprehension and removal of noncitizens." R.4-1 at 1. It emphasizes that "the majority of undocumented noncitizens who could be subject to removal have been contributing members of our communities for years" and instructs that "[t]he fact [that] an individual is a removable noncitizen ... should not alone be the basis of an enforcement action against them." Id. at 2. Noting that the Department lacks the resources to apprehend and remove every one of the more than 11 million removable noncitizens in the country, the Guidance explains that the agency will "prioritize for apprehension and removal noncitizens" who fit within three categories: threats to "national security, public safety, and border security." Id. at 2–3. "Whether a noncitizen poses a current threat to public safety," the Guidance adds, "is not to be determined according to bright lines or categories," but "requires an assessment of the individual and the totality of the facts and circumstances." Id. at 3. Department personnel "should not rely on the fact of conviction or the result of a database search alone." Id. at 4. The memo calls for a "training program ... to ensure the successful application of this guidance" and a "review process" to "achieve quality and consistency in decisionmaking." Id. at 6.

By its terms, the Guidance, though aiming to focus resources in certain directions, does not tie the hands of immigration officers. The Guidance cautions that the memo does not "compel an action to be taken or not taken," "leaves the exercise of prosecutorial discretion to the judgment of" Department personnel, and "is not intended to, does not, and may not be relied upon to create any right or benefit." Id. at 5, 7. Through it all, the Guidance assures that the Department "do[es] not lessen [its] commitment to enforce immigration laws to the best of [its] ability." Id. at 2. Consistent with...

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