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 Date10 June 2022

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

June 10, 2022


MEMORANDUM OPINION AND ORDER

DREW B. TIPTON UNITED STATES DISTRICT JUDGE

This case is the culmination of a series of challenges to immigration-related memoranda issued within the Department of Homeland Security. The legal issues are varied and complicated. But the core of the dispute is whether the Executive Branch may

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require its officials to act in a manner that conflicts with a statutory mandate imposed by Congress. It may not.

This past September, the Secretary of the Department of Homeland Security issued a rule-self-styled as a memorandum-governing civil immigration enforcement. The States of Texas and Louisiana say this memorandum conflicts with detention mandates under federal law. The Federal Government, in response, tries to reconcile the apparent contradiction between its memorandum and federal law. The Federal Government's explanations fall short.

Lawmaking is vested by the People in Congress. Congress has long used its legislative power to craft immigration law which will ultimately be enforced by the Executive Branch. The Executive Branch's statutorily authorized discretion on civil immigration enforcement has historically ebbed and flowed. In the 1990s, Congress reigned in the Executive Branch's discretion by mandating detention of criminal aliens[1]or aliens with final orders of removal. The wisdom of the statute passed by Congress and signed into law by the President has no bearing here. The passions of the present sometimes conflict with the views of the past. But the law remains unless it is repealed or replaced. And the two statutes at issue in this case are still the law of the land.

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That brings us to the relevant immigration statutes. This case is not about aliens in general, or even aliens who are in the United States illegally. Sections 1226(c) and 1231(a)(2) of Title 8 of the United States Code state that the Executive Branch “shall” detain aliens convicted of specific types of crimes or who have final orders of removal. The Federal Government acknowledges that some immigration statutes mandate detention. But it disputes that Sections 1226(c) and 1231(a)(2) are among those statutes. In support, the Federal Government offers an implausible construction of federal law that flies in the face of the limitations imposed by Congress. It also invokes discretion and prioritization in an effort to evade meaningful judicial review.

True, the Executive Branch has case-by-case discretion to abandon immigration enforcement as to a particular individual. This case, however, does not involve individualized decisionmaking. Instead, this case is about a rule that binds Department of Homeland Security officials in a generalized, prospective manner-all in contravention of Congress's detention mandate.

It is also true that the Executive Branch may prioritize its resources. But it must do so within the bounds set by Congress. Whatever the outer limits of its authority, the Executive Branch does not have the authority to change the law.

Using the words “discretion” and “prioritization, ” the Executive Branch claims the authority to suspend statutory mandates. The law does not sanction this approach. Accepting the Executive Branch's position would have profound consequences for the separation of powers.

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It is worth repeating that the Federal Government agrees that certain immigration statutes contain mandatory detention provisions. The question, then, is whether the statutes here are mandatory. The answer is yes: Sections 1226(c) and 1231(a)(2) mandate detention. All of this matters because the Administrative Procedure Act compels federal courts to set aside agency rules that are contrary to law, are arbitrary and capricious, or failed to observe the requisite procedure. After a trial on the merits, the States have shown that the Secretary's memorandum is all three. For the reasons that follow, the Court vacates the memorandum.[2]

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I. FINDINGS OF FACT

The Court finds that the following facts have been established by a preponderance of the evidence.[3]

A. The Parties

1. The States of Texas and Louisiana are the plaintiffs in this case.

2. Defendant Alejandro Mayorkas is the Secretary of the United States Department of Homeland Security (“DHS”). He issued and currently administers the memorandum titled Guidelines for the Enforcement of Civil Immigration Law (the “Final Memorandum”). (Dkt. No. 109-5 at 2-8).

3. Defendant DHS implemented the Final Memorandum, which became effective on November 29, 2021. (Id. at 7).

4. DHS oversees Defendants United States Citizenship and Immigration

Services (“USCIS”), United States Customs and Border Protection (“CBP”), and United States Immigration and Customs Enforcement (“ICE”).

5. Defendant Troy Miller is the Deputy Commissioner of CBP.

6. Defendant Tae Johnson is the Acting Director of ICE.

7. Defendant Tracy Renaud is currently employed by USCIS and has worked in various capacities, including as the Acting Director of USCIS.

B. The Relevant Statutes

8. Certain statutes are at issue in this case. The first is 8 U.S.C. § 1226(c). Paragraph 1 of that subsection states:

(1) Custody
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,
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(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 [sic] 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).

9. Paragraph 2 of that subsection states:

(2) Release
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.

8 U.S.C. § 1226(c)(2).

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10. This case also implicates 8 U.S.C. § 1231. The relevant portions of that statute state:

Except as otherwise provided in this section, when an alien is ordered removed, the Attorney General shall remove the alien from the United States within a period of 90 days (in this section referred to as the “removal period”).

8 U.S.C. § 1231(a)(1)(A).

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.

Id. § 1231(a)(2).

C. Civil Immigration Enforcement Principles

11. Enforcement of U.S. immigration law by United States executive branch agencies such as USCIS, CBP, ICE, and DHS (“Immigration Enforcement Authorities”) is also at issue in this case.

12. In light of resource constraints, Immigration Enforcement Authorities must decide how to focus their immigration enforcement actions. This is done regardless of whether there is express agency-wide guidance or not.[4] (Dkt. No. 146-2 at 1); (Dkt. No. 146-3 at 4); (Dkt. No. 146-7 at 2).

13. Since it began operations in 2003, DHS has never apprehended and removed all removable aliens.

14. As of August 2021, the Enforcement and Removal Operations (“ERO”) division of ICE had approximately 34, 000 detention beds nationwide. (Dkt. No. 153-21 at 15).

15. At these resource levels, it would be impossible to detain all aliens covered in Section 1226(c) or Section 1231(a)(2) at one time. (Dkt. No. 153-21 at 14-16).

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16. Despite this, DHS has requested a dramatic reduction in detention bed capacity.[5] Most recently, DHS's 2023 budget request asks for a reduction to 25, 000 detention beds. This amounts to a requested reduction of 26% over the course of the two years of the current administration. DHS's 2023 budget request also seeks to eliminate funding for family detention beds.

17. ICE has also persistently underutilized its existing...

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