State v. Biden
| Decision Date | 19 August 2021 |
| Docket Number | No. 21-10806,21-10806 |
| Parties | STATE of Texas ; State of Missouri, Plaintiffs—Appellees, v. Joseph R. BIDEN, Jr., in his official capacity as President of the United States of America; United States of America; Alejandro Mayorkas, Secretary, U.S. Department of Homeland Security; United States Department of Homeland Security; Troy Miller, Acting Commissioner, U.S. Customs and Border Protection ; United States Customs and Border Protection ; Tae D. Johnson, Acting Director, U.S. Immigration and Customs Enforcement; United States Immigration and Customs Enforcement; Tracy Renaud, in her official capacity as Acting Director of the United States Citizenship and Immigration Services; United States Citizenship and Immigration Services, Defendants—Appellants. |
| Court | U.S. Court of Appeals — Fifth Circuit |
Judd Edward Stone, II, Lanora Christine Pettit, William Thomas Thompson, Assistant General Counsel, Office of the Attorney General, Office of the Solicitor General, Austin, TX, for Plaintiff - Appellee State of Texas.
Jesus Armando Osete, Dean John Sauer, Office of the Attorney General for the State of Missouri, Jefferson City, MO, for Plaintiff - Appellee State of Missouri.
Brian Christopher Ward, Trial Attorney, U.S. Department of Justice, Office of Immigration Litigation - District Court Section, Washington, DC, Joseph Anton Darrow, Esq., U.S. Department of Justice, Civil Division, Washington, DC, Erez Reuveni, Assistant Director, U.S. Department of Justice, Office of Immigration Litigation, Civil Division, Washington, DC, Brian Walters Stoltz, U.S. Attorney's Office, Northern District of Texas, Dallas, TX, for Defendants - Appellants.
Cody Wofsy, American Civil Liberties Union Foundation, Immigrants' Rights Project, San Francisco, CA, for Amici Curiae American Civil Liberties Union and American Civil Liberties Union of Texas.
Blaine Bookey, UC Hastings College of the Law, Center for Gender & Refugee Studies, San Francisco, CA, for Amici Curiae American Immigration Council, American Immigration Lawyers Association, Catholic Legal Immigration Network, Incorporated, Center for Gender & Refugee Studies, Human Rights First, Justice Action Center, National Immigration Law Center, Round Table of Former Immigration Judges, and Southern Poverty Law Center.
Thomas Molnar Fisher, Solicitor General, Office of the Attorney General for the State of Indiana, Indianapolis, IN, for Amici Curiae State of Indiana, State of Alabama, State of Arizona, State of Arkansas, State of Florida, State of Georgia, State of Kansas, State of Kentucky, State of Louisiana, State of Mississippi, State of Montana, State of Ohio, State of Oklahoma, State of South Carolina, and State of West Virginia.
Before Elrod, Oldham, and Wilson, Circuit Judges.
This case concerns the Migrant Protection Protocols ("MPP") created by the Secretary of the Department of Homeland Security on December 20, 2018, and purportedly rescinded by DHS in a memorandum on June 1, 2021 ("June 1 Memorandum").1 After a full bench trial and 53 pages of findings of fact and conclusions of law, the district court concluded that DHS's purported rescission of MPP violated, inter alia , the Administrative Procedure Act ("APA"). DHS seeks a stay pending appeal. After carefully considering full briefing from the parties, we hold DHS failed to satisfy the four stay factors. See Nken v. Holder , 556 U.S. 418, 129 S.Ct. 1749, 173 L.Ed.2d 550 (2009). The motion is denied.
On December 20, 2018, the Trump Administration implemented MPP in response to an immigration surge at the southern border. D. Ct. Op. at 7. The statutory authority for MPP is found in 8 U.S.C. § 1225(b)(2)(C), which authorizes the Government to return certain third-country nationals arriving in the United States to Mexico or Canada for the duration of their removal proceedings under 8 U.S.C. § 1229a. Id. at 8. Also on December 20, 2018, the United States obtained Mexico's agreement to permit entry of MPP enrollees. Id. The goal of MPP was to ensure that "[c]ertain aliens attempting to enter the U.S. illegally or without documentation ... will no longer be released into the country, where they often fail to file an asylum application and/or disappear before an immigration judge can determine the merits of any claim." Id. (quotation omitted).
In January 2019, "DHS began implementing MPP, initially in San Diego, California, then El Paso, Texas, and Calexico, California, and then nationwide." Id. (citing AR.155–56, AR.684). In February 2019, U.S. Immigration and Customs Enforcement issued guidance on MPP to its field offices, anticipating the expansion of MPP across the border. Id. at 9 (citing AR.165–70). By December 31, 2020, DHS had enrolled 68,039 aliens in MPP. Id. at 12 (citing AR.555).
DHS and Texas entered into a Memorandum of Understanding (the "Agreement"), which the parties finalized on January 8, 2021. Id. at 13 (citing Compl., Ex. B at 8). The Agreement required Texas to provide information and assist DHS to "perform its border security, legal immigration, immigration enforcement, and national security missions." Id. (quoting Compl., Ex. B at 2). In return, DHS agreed to consult Texas and consider its views before taking actions that could modify immigration enforcement. See id. at 13–14 (citing Compl., Ex. B at 2). DHS also agreed to " ‘[p]rovide Texas with 180 days’ written notice ... of any proposed action’ subject to the consultation requirement," id. at 14 (quoting Compl., Ex. B at 3), so that Texas would have an opportunity to comment on the proposal. The Agreement further required DHS to consider Texas's input "in good faith" and, if it decided to reject Texas's input, "provide a detailed written explanation" of its reasons for doing so. Id. (emphasis omitted) (quoting Compl., Ex. B at 3).
On Inauguration Day, the Biden Administration announced that it would suspend further enrollments in MPP. The Acting Secretary of DHS wrote that Id. at 15 (quoting AR.581).
On February 2, 2021, DHS sent a letter to Texas purporting to terminate the Agreement "effective immediately." Id. at 14. Because it believed that the letter did not comply with the Agreement's required procedures, Texas interpreted the letter "as a notice of intent to terminate" the Agreement. Id. (citing ECF No. 53 at 21).
On April 13, 2021, Texas and Missouri (the "States") sued, challenging the temporary suspension of MPP. Id. at 1 (citing ECF No. 1). The States alleged that DHS's January 20 Memorandum violated the APA, the Immigration and Nationality Act ("INA"), the Constitution, and the Agreement. See id . at 2 (citing ECF No. 1 at 4; ECF No. 45). On May 14, the States moved for a preliminary injunction that would enjoin the Government from enforcing and implementing the January 20 Memorandum. Prelim. Inj. Mot., ECF No. 30.
On June 1, before briefing on the preliminary injunction had concluded, DHS issued a new memorandum permanently terminating MPP. D. Ct. Op. at 2. The district court concluded that the June 1 Memorandum mooted the States’ complaint, and the court allowed the States to amend their complaint and file a new preliminary injunction motion. Id. The parties agreed to consolidate the preliminary injunction hearing with the trial on the merits pursuant to Federal Rule of Civil Procedure 65(a)(2). Id. at 3.
Following the bench trial, the district court issued a 53-page memorandum opinion and order, concluding that the States were entitled to relief on their APA and statutory claims. See D. Ct. Op. at 1. The district court made many findings of fact that are relevant here. Among other things, the district court found that MPP had significant benefits before DHS purported to rescind it. For example, DHS's October 2019 Assessment of MPP concluded that "aliens without meritorious claims—which no longer constitute[d] a free ticket into the United States—[were] beginning to voluntarily return home." D. Ct. Op. at 10. And the court noted that DHS also found MPP effective in addressing the prior "perverse incentives" created by allowing "those with non-meritorious claims ... [to] remain in the country for lengthy periods of time." Id . The court found that this caused a significant decrease in immigration-enforcement encounters along the southern border. Id . And more directly, the court found that caused a decrease in "the number of aliens released into the interior of the United States for the duration of their U.S. removal proceedings." Id. at 11 (citing AR.554). These benefits, DHS emphasized, were a "cornerstone" of the agency's prior immigration policy. D. Ct. Op. at 12.
The court made specific (and largely uncontested) factual findings that "[t]he termination of MPP has [increased] and will continue to increase the number of aliens being released into the United States," and that this increase "has [imposed] and will continue to impose harms on Plaintiff States Texas and Missouri." Id. at 17. On the basis of its factual findings, the district court determined that the States had Article III standing, that the court had jurisdiction to review the agency action, and that the States were within the zone of interests of the INA. Id. at 21–34. The court then concluded that DHS's termination of MPP was unlawful under the APA because the action was arbitrary and capricious and contrary to the INA. Id. at 34–44. Based on those conclusions, the district court "permanently enjoined and restrained [DHS] from implementing or enforcing the June 1 Memorandum" and ordered DHS "to enforce and implement MPP in good faith until such a time as it has been lawfully rescinded in compliance with the APA and until such a time as the federal government has sufficient detention capacity to...
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