State v. United States, Civil Action 6:21-cv-00016

CourtUnited States District Courts. 5th Circuit. United States District Courts. 5th Circuit. Southern District of Texas
Writing for the CourtDREW B. TIPTON, UNITED STATES DISTRICT JUDGE
PartiesThe STATE OF TEXAS; and the STATE OF LOUISIANA, Plaintiffs, v. 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 B 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.
Docket NumberCivil Action 6:21-cv-00016
Decision Date19 August 2021

The STATE OF TEXAS; and the STATE OF LOUISIANA, Plaintiffs,
v.

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 B 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.

Civil Action No. 6:21-cv-00016

United States District Court, S.D. Texas, Victoria Division

August 19, 2021


MEMORANDUM OPINION AND ORDER

DREW B. TIPTON, UNITED STATES DISTRICT JUDGE

“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, 538 U.S. 510, 518, 123 S.Ct. 1708, 1715, 155 L.Ed.2d 724 (2003) (citing 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)). These observations, among others, led to the wholesale reform of our Nation's immigration laws in the 1990s.

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, 573 U.S. 302, 327, 134 S.Ct. 2427, 2446, 189 L.Ed.2d 372 (2014) (“Under our system of government, Congress makes laws and the President, acting at times through agencies . . ., faithfully executes them. The power of executing the laws [however] . . . does not include a power to revise clear statutory terms that turn out not to work in practice.” (citing U.S. Const. art. II, § 3) (cleaned up)).

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. History Of Sections 1226(C) And 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.”

Id. 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 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.” Id. 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, 538 U.S. at 518, 123 S.Ct. at 1714 (citations omitted); see also Zadvydas v. Davis, 533 U.S. 678, 698, 121 S.Ct. 2491, 2503, 150 L.Ed.2d 653 (2001). The Executive Branch's failures at that time led to costs and consequences borne by the states, the citizens of this country, and its legal immigrants. See Demore, 538 U.S. at 518-21, 123 S.Ct. at 1714-16; S. Rep. No. 104-48, at 1-2 (1995).

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, 123 S.Ct. at 1716. Section 1226(c)(1) reads:

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
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