State of Texas and State of Louisiana v. United States, No. 6:21-cv-00016 (S.D. Tex., filed Apr. 6, 2021); 21-40618 (5th Cir., filed Aug. 20, 2021)
On April 6, 2021, the State of Texas and the State of Louisiana commenced this action seeking to enjoin the enforcement of interim immigration enforcement priorities outlined in two memoranda issued by the Department of Homeland Security (DHS) (dated Jan. 20, 2021) and Immigration and Customs Enforcement (ICE) (dated Feb. 18, 2021). Noting DHS’s limited resources and inability to respond to all immigration violations, those memos announced that the agency would prioritize enforcement against individuals who are purported to pose a threat to national security, individuals apprehended at or near the border while attempting to unlawfully enter the United States on or after November 1, 2020, and individuals convicted of an “aggravated felony” and recently released from criminal detention. Texas and Louisiana argue that these enforcement priorities are unlawful because:
(1) They violate the mandatory detention statute, 8 U.S.C. § 1226(c), as well as § 1231(a)’s requirement that noncitizens with final orders of removal be detained during the removal period;
(2) They unconstitutionally direct executive officials not to enforce federal immigration laws, in contravention of Article II’s “Take Care” Clause;
(3) They constitute arbitrary and capricious agency action in violation of the Administrative Procedure Act (APA);
(4) DHS and ICE issued the interim enforcement priorities without following the notice-and-comment procedures required by the APA; and
(5) The memos were issued without adherence to the notice and consultation requirements contained in DHS’s cooperation agreements with Texas and Louisiana.
On August 19, 2021, the district court granted a nationwide preliminary injunction, concluding that the memos violated the Immigration and Nationality Act (INA) and the APA. It thus enjoined the government from following the interim priorities outlined in the challenged memos. The U.S. government then sought an emergency stay pending appeal as well as a temporary administrative stay. The Fifth Circuit granted a temporary administrative stay and heard oral argument on the motion for emergency stay pending appeal.
On September 15, 2021, the Fifth Circuit published its decision granting in part and denying in part the government’s motion to stay the preliminary injunction. While staying much of the injunction, the Fifth Circuit left narrow portions of the order in place. Specifically, the court declined to stay the injunction only insofar as it restrained the Biden Administration from using the Priorities Memos to guide the discretion of immigration officials in deciding whether to release two specific categories of immigrants: (1) those subject to the mandatory provision under 8 U.S.C. §§ 1226(c)(1) against whom immigration officials have issued a detainer and (2) those with final removal orders and subject to mandatory detention under § 1231(a)(2). The injunction is stayed pending appeal in all other respects.
On September 30, 2021, DHS completed its review of its policies and practices concerning immigration enforcement and issued a new memorandum establishing its revised enforcement priorities. The new guidance is set to become effective on November 29, 2021, thereby superseding the challenged interim priorities. In light of this development, the government filed a motion for abeyance on October 6, 2021, arguing that the case would likely become moot before the court reaches a decision on merits. The government requested that the court hold the case in abeyance until the new priorities go into effect, and also that the court stay the briefing schedule pending resolution of the motion.
Texas and Louisiana filed a response opposing the motion for abeyance as well as a petition for rehearing en banc, arguing that the panel had erred by misconstruing the relevant INA provisions and also by failing to evaluate whether the challenged memos violated the APA. In the district court proceedings, the States filed an amended complaint, alleging that DHS’s September 30 memorandum “suffers from the same legal infirmities” as its earlier memos. They also filed a motion to postpone the effective date of the recent memorandum, or, in the alternative, to preliminarily enjoin its enforcement.
As of October 26, 2021, both the government’s motion for abeyance and the States’ petition for rehearing en banc are pending before the Fifth Circuit, while the district court is awaiting the government’s opposition to the States’ motion to postpone (due November 12, 2021).
- States’ Motion for Preliminary Injunction
- Order Granting Preliminary Injunction
- Government’s Fifth Circuit Emergency Motion for Stay Pending Appeal
- Fifth Circuit Order Granting Temporary Administrative Stay
- States’ Fifth Circuit Opposition to Emergency Motion for Stay Pending Appeal
- Government’s Fifth Circuit Reply in Support of Emergency Motion for Stay Pending Appeal
- Fifth Circuit Opinion Partially Staying Preliminary Injunction Pending Appeal
- DHS Priorities Memorandum (Sep. 30, 2021)
- Government’s Fifth Circuit Motion for Abeyance
- States’ Fifth Circuit Opposition to Motion for Abeyance
- Government’s Fifth Circuit Reply in Support of Motion for Abeyance
- States’ Fifth Circuit Petition for Rehearing En Banc
- Amended Complaint
- Motion to Postpone Effective Date of Agency Action and Motion for Preliminary Injunction
Counsel: Brian M. Boynton, Jennifer B. Lowery, Sarah E. Harrington, H. Thomas Byron III, Michael Shih, and Sean Janda | U.S. Dep’t of Justice
Contact: Department of Justice