State v. United States

• Decision Date: 06 July 2022
• Docket Number: 22-40367
• Citation: 40 F.4th 205
• Parties: State of TEXAS; State of Louisiana, Plaintiffs—Appellees, v. UNITED STATES of America; Alejandro Mayorkas, Secretary, U.S. Department of Homeland Security; United States Department of Homeland Security; Troy Miller, Senior Official Performing the Duties of the Commissioner of U.S. Customs and Border Protection, in His Official Capacity; United States Customs and Border Protection ; Tae D. Johnson, Acting Director, U.S. Immigration and Customs Enforcement, in His Official Capacity; United States 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; U.S. Citizenship and Immigration Services, Defendants—Appellants.
• Court: U.S. Court of Appeals — Fifth Circuit

40 F.4th 205

State of TEXAS; State of Louisiana, Plaintiffs—Appellees,

v.UNITED STATES of America; Alejandro Mayorkas, Secretary, U.S. Department of Homeland Security; United States Department of Homeland Security; Troy Miller, Senior Official Performing the Duties of the Commissioner of U.S. Customs and Border Protection, in His Official Capacity; United States Customs and Border Protection ; Tae D. Johnson, Acting Director, U.S. Immigration and Customs Enforcement, in His Official Capacity; United States 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; U.S. Citizenship and Immigration Services, Defendants—Appellants.

No. 22-40367

United States Court of Appeals, Fifth Circuit.

FILED July 6, 2022

Benjamin D. Wilson, Judd Edward Stone, II, Office of the Attorney General of Texas, Office of the Solicitor General, Austin, TX, Eric Alan Hudson, Assistant Attorney General, Terrazas, P.L.L.C., Austin, TX, Patrick K. Sweeten, Office of the Attorney General of Texas, Special Counsel State of Texas Unit, Austin, TX, Ryan Daniel Walters, Attorney, Texas Public Policy Foundation, Austin, TX, for Plaintiff-Appellee State of Texas.

Benjamin D. Wilson, Judd Edward Stone, II, Office of the Attorney General of Texas, Office of the Solicitor General, Austin, TX, Elizabeth Baker Murrill, Esq., Assistant Attorney General, Office of the Attorney General for the State of Louisiana, Baton Rouge, LA, for Plaintiff-Appellee State of Louisiana.

Sean Janda, Michael Shih, U.S. Department of Justice, Civil Division, Appellate Section, Washington, DC, Daniel David Hu, Assistant U.S. Attorney, U.S. Attorney's Office, Southern District of Texas, Houston, TX, Adam David Kirschner, U.S. Department of Justice, Civil Division Federal Programs Branch, Washington, DC, Erez Reuveni, Assistant Director, U.S. Department of Justice, Office of Immigration Litigation, Civil Division, Washington, DC, Daniel Bentele Hahs Tenny, Esq., U.S. Department of Justice, Civil Rights Division, Washington, DC, for Defendant-Appellant United States of America.

Sean Janda, Michael Shih, U.S. Department of Justice, Civil Division, Appellate Section, Washington, DC, Daniel David Hu, Assistant U.S. Attorney, U.S. Attorney's Office, Southern District of Texas, Houston, TX, Adam David Kirschner, U.S. Department of Justice, Civil Division Federal Programs Branch, Washington, DC, Daniel Bentele Hahs Tenny, Esq., U.S. Department of Justice, Civil Rights Division, Washington, DC, for Defendants-Appellants Alejandro Mayorkas, Secretary, U.S. Department of Homeland Security, United States Department of Homeland Security, Troy Miller, Senior Official Performing the Duties of the Commissioner of U.S. Customs and Border Protection, in his official capacity, United States Customs and Border Protection, Tae D. Johnson, Acting Director, U.S. Immigration and Customs Enforcement, in his official capacity, United States 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, U.S. Citizenship and Immigration Services.

Drew C. Ensign, Deputy Solicitor General, Attorney General's Office for the State of Arizona, Phoenix, AZ, for Amici Curiae State of Arizona, State of Alabama, State of Florida, State of Georgia, State of Indiana, State of Kansas, State of Kentucky, State of Mississippi, State of Missouri, State of Montana, State of Nebraska, State of Ohio, State of Oklahoma, State of South Carolina, State of West Virginia, State of Wyoming, State of Arkansas.

Matt A. Crapo, Immigration Reform Law Institute, Washington, DC, for Amicus Curiae Immigration Reform Law Institute.

Before Jones, Clement, and Engelhardt, Circuit Judges.

Per Curiam:

Before the court is the Department of Homeland Security's ("DHS") request to stay the district court's vacatur of a new immigration rule that radically reduces the federal government's detention of those who are statutorily required to be removed post-haste. The district court determined that the rule conflicts with federal statutes, is arbitrary and capricious, and that its promulgation was procedurally invalid. We are inclined to agree. Because DHS fails to make a strong showing of likelihood of success on appeal, the motion for a stay pending appeal is DENIED. We distinguish this case from a recent decision by the Sixth Circuit, authorizing a stay pending appeal, based on differing precedent and the benefit of a complete trial record.

BACKGROUND

Federal immigration law provides that the Attorney General "shall take into custody," "shall detain," and "shall remove" aliens convicted of certain enumerated crimes and aliens who have become subject to final orders of removal. 8 U.S.C. §§ 1226(c)(1), 1231(a)(2), 1231(a)(1)(A). Under the current Presidential Administration, to "implement" these provisions, the Department of Homeland Security ("DHS") has outlined new immigration "guidance for the apprehension and removal of noncitizens" in a series of memoranda. The first memorandum was circulated in January 2021, when then-Acting Secretary of Homeland Security David Pekoske purported to "announce[ ] substantial changes to the enforcement of the Nation's immigration laws," including the establishment of certain enforcement priorities. The approved enforcement priorities entailed national security, public safety, and border security. What made this memorandum controversial was that each of these categories was narrowly defined to address certain threats but exclude others enumerated in the federal statutes. For example, DHS required Immigration and Customs Enforcement ("ICE") agents to prioritize the enforcement of aliens who committed aggravated felonies, but not other deportable aliens with final orders of removal or who trafficked controlled substances, participated in the commercialized sex industry, trafficked humans, were convicted of certain firearm offenses, among others. Effective enforcement in this context would mean that ICE agents could apprehend aliens with certain criminal convictions or aliens who have final removal orders and detain them for speedy processing toward removal. But the first memorandum basically ignored the legal requirement of detention, and therefore the likelihood of removal, for those not "prioritized."

In February, Acting ICE Director Tae Johnson issued a second memorandum, reiterating the same three narrowly-focused categories. That memorandum added a requirement that enforcement agents obtain "preapproval" from their superior offices for any enforcement action against criminal aliens that did not fall within the three priorities. Both the January and February memoranda were labelled interim measures and were intended to guide immigration officials "until Secretary Mayorkas issues new enforcement guidelines."

On September 30, 2021, the Secretary of Homeland Security Alejandro Mayorkas issued a third and final memorandum ("Final Memo"). Notably, it is agreed that the Final Memo is an agency rule under the Administrative Procedure Act, 5 U.S.C. § 551(4). The Final Memo "serve[d] to rescind the January and February Memoranda." It re-articulated the same three enforcement priorities, but, unlike the prior memos, it did not "presumptively subject [the priorities] to enforcement action." Instead, before ICE officers may arrest and detain aliens as a threat to public safety, they are now required to conduct "an assessment of the individual and the totality of facts and circumstances," including various aggravating or mitigating factors. Immigration enforcement personnel are prohibited from "rely[ing] on the fact of conviction ... alone," no matter how serious. Similarly, enforcement personnel "should evaluate the totality of the facts and circumstances" before determining whether an alien who is otherwise a threat to border security ought to be subject to enforcement.

Not only did the Final Memo engrave these three priorities into immigration enforcement, but it also specified procedures to ensure agency-wide compliance. Specifically, the Final Memo required "[e]xtensive" and "continuous" training, and the implementation of a "rigorous review" process of all enforcement decisions. According to the memo, DHS would also "need to collect detailed, precise, and comprehensive data as to every aspect of the enforcement actions [ ] take[n] pursuant to th[e] guidance, both to ensure the quality and integrity of [the] work and to achieve accountability for it." Notably, the Final Memo establishes a "fair and equitable case review process to afford noncitizens and their representatives the opportunity to obtain expeditious review of the enforcement actions taken." In other words, according to the Final Memo, those whom the law designates as aliens are granted an entirely new avenue of redress in the event they are removed or detained in a manner that conflicts with the guidance. The Final Memo was circulated along with a second memo titled "Significant Considerations in Developing Updated Guidelines for the Enforcement of Civil Immigration Law" ("Considerations Memo"), which summarized the key aspects of the Final Memo. The Considerations Memo further purported to provide insight into DHS's reasoning for issuing the Final Memo.

The district court found that these regulatory actions, culminating in the Final Memo, have had measurable effects on immigration enforcement. This is particularly true in Texas, where, from 2017 to 2020 (i.e. , before any of the memoranda were issued) ICE agents rescinded no more than a dozen criminal detainers annually. Yet the district court found that from January 20, 2021 through February 15, 2022, detainers for 170 criminal aliens were rescinded in Texas.¹ At least seventeen of those aliens failed to comply with their parole conditions, four have committed new crimes,...