Arizona v. Biden

• Decision Date: 22 March 2022
• Docket Number: Case No. 3:21-cv-314
• Citation: 593 F.Supp.3d 676
• Parties: State of ARIZONA, et al., Plaintiffs, v. Joseph R. BIDEN, et al., Defendants.
• Court: U.S. District Court — Southern District of Ohio

593 F.Supp.3d 676

State of ARIZONA, et al., Plaintiffs,

v.Joseph R. BIDEN, et al., Defendants.

Case No. 3:21-cv-314

United States District Court, S.D. Ohio, Western Division.

Signed March 22, 2022

Anthony R. Napolitano, Pro Hac Vice, Phoenix, AZ, Benjamin Michael Flowers, Ohio Attorney General's Office, Columbus, OH, for Plaintiff State of Arizona.

Christian Brian Corrigan, Pro Hac Vice, Montana Department of Justice, Helena, MT, Benjamin Michael Flowers, Ohio Attorney General's Office, Columbus, OH, for Plaintiff State of Montana.

Sylvia May Mailman, Pro Hac Vice, Ohio Attorney General, Cleveland, OH, Benjamin Michael Flowers, Ohio Attorney General's Office, Columbus, OH, for Plaintiff State of Ohio.

Adam Kirschner, Brian C. Rosen-Shaud, Michael F. Knapp, DOJ-Civ, Washington, DC, for Defendants.

Michael J. Newman, United States District Judge

ORDER: (1) DENYING DEFENDANTS’ MOTION TO DISMISS (DOC. NO. 29); (2) GRANTING THE STATES’ MOTION FOR A PRELIMINARY INJUNCTION (DOC. NO. 4); AND (3) ENJOINING ENFORCEMENT OF THE PERMANENT GUIDANCE (DOC. NO. 4-1) AS DESCRIBED HEREIN

Plaintiffs, the States of Arizona, Montana, and Ohio (collectively, the "States"), bring this action to prevent the Department of Homeland Security ("DHS")¹ from implementing civil immigration enforcement guidance they say is unlawful. Doc. Nos. 1, 1-1. Two motions are now before the Court: The States’ motion for a preliminary injunction and DHS's motion to dismiss or, alternatively, for judgment on the pleadings. Doc. Nos. 4, 29. Both motions are fully briefed, and the Court heard oral argument from the parties on February 16, 2022. Doc. No. 42. The motions are now ripe for review.

The Constitution vests "the executive Power" in the President of the United States. U.S. Const. art. II, § 1, cl. 1. Inherent in that executive power is the President's "vast share of responsibility for the conduct of our foreign relations." Am. Ins. Ass'n v. Garamendi , 539 U.S. 396, 414, 123 S.Ct. 2374, 156 L.Ed.2d 376 (2003) (quoting Youngstown Sheet & Tube Co. v. Sawyer , 343 U.S. 579, 610–11, 72 S.Ct. 863, 96 L.Ed. 1153 (1952) (Frankfurter, J., concurring)). This includes significant authority over immigration, U.S. ex rel. Knauff v. Shaughnessy , 338 U.S. 537, 542, 70 S.Ct. 309, 94 L.Ed. 317 (1950), and discretion to exclude unlawfully present individuals from the country, see Reno v. Am.-Arab Anti-Discrimination Comm. ("AADC "), 525 U.S. 471, 483, 119 S.Ct. 936, 142 L.Ed.2d 940 (1999) ("At each stage [of the removal process] the Executive has discretion to abandon the endeavor"). At times that discretion is near plenary. See, e.g., Arizona v. United States , 567 U.S. 387, 396, 132 S.Ct. 2492, 183 L.Ed.2d 351 (2012) ("A principal feature of the removal system is the broad discretion exercised by immigration officials").

But Congress, too, has "broad power over naturalization and immigration." Demore v. Kim , 538 U.S. 510, 521, 123 S.Ct. 1708, 155 L.Ed.2d 724 (2003) (quoting Mathews v. Diaz , 426 U.S. 67, 79–80, 96 S.Ct. 1883, 48 L.Ed.2d 478 (1976) ). Congress exercised that authority by establishing procedures for DHS to follow when removing unlawfully present individuals from the United States. See, e.g. , 8 U.S.C. § 1227 (setting forth "classes of deportable aliens"); 8 U.S.C. § 1229a (describing how removal proceedings must be conducted).²

Sometimes Congress's instructions are permissive (DHS "may" take a certain action). But, at other points, Congress has mandated DHS "shall" take specific steps to carry out removals. See 8 U.S.C. §§ 1226(c)(1) (DHS "shall take into custody" noncitizens with certain criminal convictions) and 1231(a)(1)(A) (DHS "shall remove" within 90 days noncitizens with final orders of removal).

The States sue because they believe DHS skirted Congress's immigration enforcement mandates when it issued a policy that prioritizes certain high-risk noncitizens for apprehension and removal. DHS contends that seemingly mandatory statutes must be read flexibly to permit efficient law enforcement. At bottom, that is what this dispute is about: can the Executive displace clear congressional command in the name of resource allocation and enforcement goals? Here, the answer is no. See, e.g., Util. Air Grp. v. E.P.A. , 573 U.S. 302, 327, 134 S.Ct. 2427, 189 L.Ed.2d 372 (2014) ("Under our system of government, Congress makes laws and the President, acting at times through agencies like EPA, ‘faithfully execute[s]’ them" (quoting U.S. Const., art. II, § 3 ) (citing Medellín v. Texas , 552 U.S. 491, 526–27, 128 S.Ct. 1346, 170 L.Ed.2d 190 (2008) )); Youngstown , 343 U.S. at 587, 72 S.Ct. 863 ("In the framework of our Constitution, the President's power to see that the laws are faithfully executed refutes the idea that he is to be a lawmaker"). For that reason, and those given below, the Court will preliminarily enjoin application of DHS's immigration enforcement policy.

I. Background

DHS spent 2021 revising its approach to civil immigration enforcement. Doc. Nos. 4-1, 27-9, 27-10. Action came in the form of three guidance documents that instruct DHS officers on how to exercise their immigration enforcement authority. Doc. Nos. 4-1, 27-9, 27-10; see also Doc. No. 27-2 (summarizing steps taken by DHS to craft and issue immigration enforcement guidance). The States seek to block the third iteration of the guidance—DHS Secretary Alejandro N. Mayorkas's September 30, 2021 Guidelines for the Enforcement of Civil Immigration Law (the "Permanent Guidance"). Doc. No. 1 at PageID 15–22; Doc. No. 4; Doc. No. 4-1. An overview of the statutory framework governing enforcement and removal, as well as the administrative process that produced the Permanent Guidance, follows.

A. Statutory History

In the 1990s, Congress lost confidence in the ability of the Immigration and Naturalization Service ("INS"), later DHS, to "deal with increasing rates of criminal activity by aliens." Demore , 538 U.S. at 518, 123 S.Ct. 1708 (first citing Criminal Aliens in the United States: Hearings before the Permanent Subcommittee on Investigations of the Senate Committee on Governmental Affairs , 103d Cong., 1st Sess. (1993); and then citing S. Rep. No. 104–48, p. 1 (1995)). The Senate Committee of Governmental Affairs declared in 1995 that "America's immigration system [was] in disarray and criminal aliens ... constitute a vexing part of the problem." S. Rep. No. 104-48, at 1 ; see also S. Rep. No. 104-249, at 3 (1996).

Criminal alien abscondment prior to removal was one of Congress's main concerns. A Senate report lamented, "[d]espite previous efforts in Congress to require detention of criminal aliens while deportation hearings are pending, many who should be detained are released on bond." S. Rep. No. 104-48, at 2. Before 1996, "[t]he Attorney General ... had broad discretion to conduct individualized bond hearings and to release criminal aliens from custody during their removal proceedings when those aliens were determined not to present an excessive flight risk or threat to society." Demore , 538 U.S. at 519, 123 S.Ct. 1708 (citing 8 U.S.C. § 1252(a) ). Congress was concerned with this procedure because "[u]ndetained criminal aliens with deportation orders often abscond upon receiving a final notification from the INS that requires them to voluntarily report for removal." S. Rep. No. 104-48, at 2. Indeed, this shifted a "heav[y] burden[ ]" to the states, forcing them to expend "scarce criminal justice resources" to apprehend, prosecute, incarcerate, and supervise criminal aliens. Id. at 6, 9. Congress thought the burden could "be lessened if the INS detained more criminal aliens." Id. at 4.

Congress also wanted to see expeditious removals. See S. Rep. 104-249, at 7 ("Aliens who violate U.S. immigration law should be removed from this country as soon as possible"); S. Rep. 104-48, at 23–24. Criminal aliens posed significant costs to the states and federal government when they were not quickly removed. See, e.g. , S. Rep. 104-48, at 9–10 (noting the increasing costs of illegal immigration to the states due to the low level of deportations); H.R. Rep. 104-469, at 160 (stating that when noncitizens are not removed, "the resources expended to identify, apprehend, and provide a hearing to a deportable alien are all too often wasted"). Particularly, deportable noncitizens were more likely to be arrested if not detained and not quickly removed. See Hearing on H.R. 3333 before the Subcommittee on Immigration, Refugees, and International Law of the House Committee on the Judiciary , 101st Cong., 1st Sess., 54, 52 (1989).

Two concerns animated Congress's eventual action: (1) criminal aliens’ high abscondment rates; and (2) the significant cost criminal alien recidivism imposed on the states and federal government. See S. Rep. No. 104-48, at 7–10, 21–30 ; Demore , 538 U.S. at 518–20, 123 S.Ct. 1708 ; Zadvydas v. Davis , 533 U.S. 678, 713–15, 121 S.Ct. 2491, 150 L.Ed.2d 653 (2001) (Kennedy, J., dissenting). This led to the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 ("IIRIRA") and the two statutory provisions relevant in this case. Pub. L. 104-208, 110 Stat. 3009 (1996).

One— 8 U.S.C. § 1226(c) —concerns the mandatory detention of "a subset of deportable criminal aliens pending a determination of their removability." Demore , 538 U.S. at 522, 123 S.Ct. 1708. 8 U.S.C. § 1226(c) works in tandem with § 1226(a). Subsection (a)—entitled "Arrest, detention, and release"—provides that

On a warrant issued by the Attorney General, an alien may be arrested and detained pending a decision on whether the alien is to be removed from the United States. Except as provided in subsection (c) and pending such decision, the Attorney General--

(1) may continue to detain the arrested alien; and

(2) may release the alien on-- [bond or conditional parole]

8 U.S.C. § 1226(a). Subsection (c), however, renders "criminal aliens" ineligible³ for release pending removal proceedings:

(c) Detention of criminal

...