Texas v. United States, Civil Action No. 6:21-cv-00003

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
PartiesSTATE OF TEXAS, Plaintiff, v. The UNITED STATES OF AMERICA; DAVID PEKOSKE, Acting 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 Border 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, FIEL HOUSTON and REFUGEE AND IMMIGRANT CENTER FOR EDUCATION AND LEGAL SERVICES, Intervenors.
Decision Date23 February 2021
Docket NumberCivil Action No. 6:21-cv-00003

STATE OF TEXAS, Plaintiff,
v.
The UNITED STATES OF AMERICA; DAVID PEKOSKE,
Acting 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 Border 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,
FIEL HOUSTON and REFUGEE AND IMMIGRANT CENTER
FOR EDUCATION AND LEGAL SERVICES, Intervenors.

Civil Action No. 6:21-cv-00003

UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF TEXAS VICTORIA DIVISION

February 23, 2021


MEMORANDUM OPINION AND ORDER

The State of Texas moves for a preliminary injunction to enjoin the United States (the "Government")1 from executing a 100-day pause on the removal of aliens already subject to a final Order of Removal.2 (Dkt. No. 62). The 100-day pause was set into motion through a recent Memorandum of the Department of Homeland Security on January 20, 2021 (the "January 20 Memorandum"). (Dkt. No. 2-2). The Government and the Intervenors3 oppose Texas's Motion for a Preliminary Injunction ("Motion"). (Dkt. Nos. 82, 83). Having considered the pleadings on this issue, the record, and the applicable law, the Court finds that Texas has satisfied the requirements for a preliminary injunction. Accordingly, Texas's Motion is GRANTED.4

I. BACKGROUND

Just shy of a month old, this case has accumulated a significant procedural background and implicates the ever-complex immigration statutory scheme. Before addressing the merits, the Court first outlines those preliminary items. The factual statements made herein (except where the Court is discussing a factual dispute) should be considered as findings of fact regardless of any

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heading or lack thereof. Similarly, the legal conclusions, except where the Court discusses the various competing legal theories and positions, should be taken as conclusions of law regardless of any label or lack thereof.

A. GENERAL BACKGROUND

Although Texas challenges an action of the current Executive Administration in the present case, this dispute has its genesis in the final days of the prior Administration. That is when the Department of Homeland Security ("DHS"), U.S. Customs and Border Protection ("CBP"), U.S. Immigration and Customs Enforcement ("ICE"), and U.S. Citizenship and Immigration Services ("USCIS") entered into a Memorandum of Understanding Between Texas and DHS concerning certain aspects of the nation's immigration laws (the "Agreement"). (Dkt. No. 63-2 at 2). The Agreement was finalized on January 8, 2021—just 12 twelve days before the transition from the Trump Administration to the Biden Administration. (Id. at 9-10). The Agreement purportedly established "a binding and enforceable commitment between DHS and Texas," in which Texas agreed to "provide information and assistance to help DHS perform its border security, legal immigration, immigration enforcement, and national security missions." (Id. at 3). In return, DHS agreed to:

consult Texas and consider its views before taking any action, adopting or modifying a policy or procedure, or making any decision that could:

(1) reduce, redirect, reprioritize, relax, or in any way modify immigration enforcement;
(2) decrease the number of ICE agents performing immigration enforcement duties;
(3) pause or decrease the number of returns or removals of removable or inadmissible aliens from the country;
(4) increase or decline to decrease the number of lawful, removable, or inadmissible aliens;

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(5) increase or decline to decrease the number of releases from detention;
(6) relax the standards for granting relief from return or removal, such as asylum;
(7) relax the standards for granting release from detention;
(8) relax the standards for, or otherwise decrease the number of, apprehensions or administrative arrests;
(9) increase, expand, extend, or in any other way change the quantity and quality of immigration benefits or eligibility for other discretionary actions for aliens; or
(10) otherwise negatively impact Texas.

(Id.). "In case of doubt, DHS [agreed to] err on the side of consulting with Texas." (Id.).5

Twelve days later, on January 20, 2021, the current Administration took the reins of power from the prior Administration. On that same day, the current Administration performed two actions that are relevant to this case. The first is Executive Order 13,993, which sets forth two primary objectives pertaining to immigration law. (Dkt. No. 59-1 at 4-5). Section 1 of the Executive Order describes some of the remarkable contributions immigrants have made to the country and briefly communicates some of the Administration's immigration policy values and priorities.6 (Id. at 4). In light of this, President Biden directed his Administration to "reset the policies and practices for enforcing civil immigration laws to align enforcement with these values

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and priorities." (Id.). The President also revoked Executive Order 13,768,7 in which the previous Administration had set forth its immigration enforcement values and priorities. The President then directed certain department and agency heads to "review any agency actions developed pursuant to [Executive Order 13,768] and take action, including issuing revised guidance, as appropriate and consistent with applicable law, that advances the policy set forth in section 1 of this order." (Id.).

The second relevant action taken by the current Administration on January 20, 2021 came in the form of a memorandum written by Acting DHS Secretary David Pekoske (the "January 20 Memorandum"). (Dkt. No. 63-1). In that memorandum, Pekoske announced changes to the enforcement of the nation's immigration laws. (Id.). The January 20 Memorandum began by acknowledging the current issues the federal government is presently encountering in enforcing immigration laws, noting that the United States "faces significant operational challenges at the southwest border as it is confronting the most serious global public health crisis in a century." (Id. at 2). The January 20 Memorandum went on to say that, "in light of those unique circumstances," DHS must substantially increase "resources to the border in order to ensure safe, legal and orderly processing, to rebuild fair and effective asylum procedures that respect human rights and due process, to adopt appropriate public health guidelines and protocols, and to prioritize responding to threats to national security, public safety, and border security." (Id.) The January 20 Memorandum called for a "Department-wide review of policies and practices concerning immigration enforcement" and simultaneously articulated "interim enforcement priorities [that]

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shall go into effect on February 1, 2021 and remain in effect until superseded by revised priorities developed in connection with the" Department-wide review.8 (Id. at 3-4).

Most relevant here, the January 20 Memorandum ordered a temporary pause on removals of noncitizens. (Id. at 4-5). Specifically, the January 20 Memorandum directed "an immediate pause on removals of any noncitizen with a final order of removal . . . for 100 days."9 (Dkt. No.

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2-2 at 4-5). The January 20 Memorandum justified this pause by pointing to DHS's "limited resources," which it claimed "must be prioritized to . . . provide sufficient staff and resources to enhance border security and conduct immigration and asylum processing at the southwest border fairly and efficiently" and "comply with COVID-19 protocols to protect the health and safety of DHS personnel and those members of the public with whom DHS personnel interact." (Id. at 4). Further, the January 20 Memorandum stated, the pause is necessary for DHS to "ensure that [its] removal resources are directed to [its] highest enforcement priorities." (Id.).

B. PROCEDURAL BACKGROUND

Texas wasted little time seeking to enjoin the 100-day pause on removals. Texas filed this case just two days after the Acting Secretary of DHS issued the January 20 Memorandum. (Dkt. No. 1). In its six-count Complaint, Texas alleges that the January 20 Memorandum is unlawful because it violates:

1) the Agreement between Texas and DHS;
2) the Administrative Procedure Act's ("APA") proscription of actions that are "not in accordance with law" and "in excess of . . . authority" by transgressing a statutory duty of DHS to remove individuals subject to a final order of removal pursuant to 8 U.S.C. § 1231(a)(1)(A);
3) the Constitution's requirement that the President "take Care that the Laws be faithfully executed";10
4) the APA's proscription of agency actions that are arbitrary and capricious;11
5) the APA's requirement that agency rules be subject to notice and comment;12 and
6) DHS's general responsibility to "[p]romote the [r]emoval of [i]llegal [a]liens."

(Id.).

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That same day, Texas pressed for a temporary restraining order ("TRO") to enjoin the 100-day pause on removals set forth in the January 20 Memorandum. (Dkt. No. 2). On January 26, 2020, the Court granted that request. (Dkt. No. 16). In doing so, the Court ordered, in relevant part:

1. Defendants and all their respective officers, agents, servants, employees, attorneys, and other persons who are in active concert or participation with them are hereby ENJOINED and RESTRAINED from enforcing and implementing the policies described in the January 20 Memorandum in Section C entitled "Immediate 100-Day Pause on Removals."

2. This TRO is granted on a nationwide basis and prohibits enforcement and implementation of the policies described in the January 20 Memorandum in Section C entitled "Immediate 100-Day Pause
...

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