Category Archives: Removal/Deportation

RAICES v. Noem

Posted on by

Refugee and Immigrant Center for Education and Legal Services, et al. v. Kristi Noem, et al., No. 1:25-cv-00306 (D.D.C., filed Feb. 3, 2025) and No. 25-5243 (D.C. Cir., filed Jul. 3, 2025)

On January 20, 2025, President Trump issued a proclamation invoking Immigration and Nationality Act (INA) Section 212(f), 8 U.S.C. § 1182(f), and his purportedly inherent constitutional authority, to summarily expel noncitizens who entered without a visa after the date of the Proclamation and prohibit them from applying for asylum and obtaining other procedural and substantive protections under the INA.

Plaintiffs Refugee and Immigrant Center for Education and Legal Services (RAICES), Las Americas Immigrant Advocacy Center, and the Florence Immigrant & Refugee Rights Project filed suit on February 3 to block the Proclamation. On February 19, 2025, Plaintiffs amended the complaint to add individuals impacted by the Proclamation, moved for class certification, and sought a preliminary injunction. Plaintiffs assert that the Proclamation violates the INA’s asylum and withholding of removal provisions, the statutes implementing the Convention Against Torture, and the Trafficking Victims Protection Reauthorization Act (TVPRA). Both parties subsequently moved for summary judgment.

On July 2, 2025, the court granted in part plaintiffs’ motions for summary judgment and class certification, denied plaintiffs’ motion for preliminary injunction as moot, and deferred ruling on the remaining portions of the cross-motions. The court certified a class consisting of “all individuals who are or will be subject to Proclamation 10888 and/or its implementation within the United States.” Defendants appealed the decision to the D.C. Circuit Court and sought emergency stay, which the court of appeals granted as to the district court’s order prohibiting the application of the 212(f) Proclamation to asylum applications, but denied as to the district court’s order prohibiting application of the Proclamation to withholding of removal and protection under the Convention Against Torture. The district court has ordered that further briefing will be held in abeyance pending a decision on the appeal. On November 3, 2025, oral argument was heard at the D.C. Circuit.

Documents:

Counsel: ACLU Immigrant Rights Project ǀ National Immigrant Justice Center ǀ Texas Civil Rights Project ǀ Center for Gender & Refugee Studies ǀ ACLU Foundation of the District of Columbia ǀ Jenner & Block LLP ǀ Texas Civil Rights Project ǀ ACLU Foundation of Texas ǀ Gibbs Houston Pauw

Contact: Lee Gelernt ǀ ACLU Immigrant Rights Project ǀ lgelernt@aclu.org ǀ Keren Zwick ǀ National Immigrant Justice Center ǀ kzwick@immigrantjustice.org ǀ Melissa Crow ǀ Center for Gender & Refugee Studies ǀ crowmelissa@uclawsf.edu

Al Otro Lado v. Mayorkas

Posted on by

Al Otro Lado, et al., v. Alejandro Mayorkas, et al., No. 3:23-cv-01367 (S.D. Cal., filed Jul. 27, 2023) and No. 23-3396 (9th Cir., filed Nov. 9, 2023)

This lawsuit challenges the federal government’s border-wide policy and practice of turning back asylum seekers without an appointment scheduled through the CBP One mobile application at ports of entry (POEs) along the southern border, denying them access to the U.S. asylum process. The suit seeks to end U.S. Customs and Border Protection’s (CBP’s) newest iteration of unlawful metering, and to ensure that the government is complying with U.S. laws meant to protect asylum seekers’ rights and safety.

Restricting asylum access to only those individuals who can use a smartphone app imposes unfair and at times insurmountable barriers for asylum seekers. The CBP One Turnback Policy, under which CBP officers turn back most asylum seekers who cannot secure an appointment made via the CBP One app, creates language, literacy, and disability access issues. There is evidence that CBP in some cities is coordinating with Mexican officials to block asylum seekers without CBP One appointments from physically approaching ports of entry. The policy therefore causes unreasonable delays and endangers asylum seekers’ lives. Even those able to use the app are denied appointments due to limited slots, forcing indefinite waits in precarious conditions in Mexico.

The plaintiffs in the suit are immigrant rights organizations Al Otro Lado and Haitian Bridge Alliance, and 10 individuals turned away at the southern border by CBP and denied their fundamental right to seek asylum in the United States.

The CBP One Turnback Policy has harmed plaintiffs, leaving them vulnerable to assault, rape, kidnapping, and even murder in dangerous Mexican border towns. It also disrupts organizations’ missions, diverting resources to counteract the policy’s harmful effects.

On August 9, 2023, plaintiffs filed a motion for preliminary injunction to block the implementation of the policy until the case is decided, along with a motion to provisionally certify a class. If granted, the government would be required to follow its own binding guidance, and process all people seeking asylum at ports of entry, regardless of whether they are lucky enough to obtain a CBP One appointment.

On October 23, 2023, the court denied the motion for preliminary injunction in an oral opinion, holding that the jurisdictional bar at 8 U.S.C. § 1252(f)(1) barred injunctive relief. The court also denied the motion for provisional class certification as moot based on the denial of the preliminary injunction. On November 11, 2023, plaintiffs filed a notice of interlocutory appeal on both denied motions to the Ninth Circuit. Briefing is complete and oral arguments were heard on May 13, 2024. Back at the district court, defendants filed a motion to dismiss on November 13, 2023, for failure to state a claim and lack of jurisdiction. Briefing on the motion was completed on February 12, 2024.

On June 5, 2024, defendants filed a notice with the court regarding President Biden’s proclamation limiting asylum seekers at the southern border, contending that the President’s recent action on immigration is relevant to plaintiffs’ claims in this matter concerning operations at land ports of entry along the U.S.-Mexico border. The parties submitted briefing on how the presidential action might affect plaintiffs’ claims.

On September 30, 2024, the court denied the government’s motion in large part, dismissing only Plaintiffs’ claims that enjoin or bind Mexican officials/persons outside of US federal agencies, and Plaintiffs’ Alien Tort Statute claim.

Documents

Counsel: American Immigration Council | the Center for Gender & Refugee Studies | Center for Constitutional Rights | Mayer Brown LLP | Vinson & Elkins LLP

Contact:  Suchita Mathur | American Immigration Council | smathur@immcouncil.org

Press:

East Bay Sanctuary, et al., v. Biden, et al.

Posted on by

East Bay Sanctuary, et al., v. Joseph R. Biden, President of the United States, et al., No. 4:18-cv-06810 (N.D. Cal., amended complaint filed May 11, 2023) and No. 23-16032 (9th Cir., filed July 26, 2023)

Anticipating the end of the policy that allowed for the expulsion of asylum-seekers arriving at the U.S./Mexico border under Title 42, on May 10, 2023, the Biden administration issued a new final rule that bars certain asylum seekers from asylum if they did not apply for asylum in a country they passed through on their way to the United States or failed to obtain advance permission to arrive at a port of entry or travel to the United States. The exceptions to this new asylum ban are extremely narrow. This is the third in a string of asylum bans attempting to bar many people from the asylum process. The first two originated under the Trump administration and were found unlawful by the district court in this case and the Ninth Circuit.

Plaintiffs originally filed this lawsuit on November 9, 2018, in response to the Trump administration’s first asylum ban, which barred anyone who did not enter the United States at a port of entry from receiving asylum. The district court found this first ban unlawful and enjoined it. The Ninth Circuit affirmed those orders on February 28, 2020, (and in an amended opinion on March 24, 2021). The case was stayed.

On July 16, 2019, East Bay Sanctuary and others filed a related lawsuit in the same court challenging the second asylum ban, which barred those who did not apply for asylum in a country they transited through on their way to the United States from seeking asylum in the United States. The district court similarly preliminarily enjoined the second asylum rule as likely unlawful and the Ninth Circuit ultimately affirmed that order on July 6, 2020, (amended April 8, 2021).

On May 11, 2023, Plaintiffs sought leave to amend their complaint in this case to challenge the third asylum ban. Defendants consented to the filing of the amended complaint and to lifting the stay on the case. Plaintiffs argue that the new rule is unlawful for the same reasons the first two asylum bans were unlawful. It will effectively eliminate asylum for nearly all non-Mexican asylum seekers who enter between designated ports of entry, and even for those who present at a port of entry if they have not first secured an appointment.

On July 25, 2023, the district court granted Plaintiffs’ motion for summary judgment and denied Defendants’ cross-motion, vacating the rule yet again. The government appealed the order, and on August 3, the Ninth Circuit ruled that the administration’s transit ban can continue through September, staying the lower court decision. The Ninth Circuit held oral argument on November 7, 2023, and the parties await a decision of the court. On February 21, 2024, the Ninth Circuit granted a motion filed by the parties to hold the case in abeyance pending settlement negotiations in this case and a related case, M.A. v. Mayorkas, No. 1:23-cv-1843 (D.D.C.). On October 21, 2024, the Supreme Court denied a petition for writ of certiorari filed by the states of Kansas, Alabama, Georgia, Louisiana, and West Virginia, challenging the Ninth Circuit’s order granting the hold.

Documents:

Counsel: ACLU Immigrant Rights Project | Center for Gender & Refugee Studies | National Immigrant Justice Center | ACLU of Northern California

Contact: Katrina Eiland | ACLU Immigrant Rights Project | keiland@aclu.org

Press:

Guerra-Castaneda v. United States of America

Posted on by

Guerra-Castaneda v. United States of America, No. 1:22-cv-10711 (filed D. Mass. May 10, 2022) 

On May 10, 2022, the ACLU of New Hampshire along with Preti Flaherty LLP filed this lawsuit on behalf of Plaintiff Jose Daniel Guerra-Castaneda. Mr. Guerra-Castaneda is an asylum seeker from El Salvador. After his asylum and protection under the Convention Against Torture application was unsuccessful before an immigration judge and the Board of Immigration Appeals, he sought judicial review before the U.S. Court of Appeals for the First Circuit.   

When the federal government attempted to deport Mr. Guerra-Castaneda to El Salvador during the judicial review, the First Circuit stopped the government’s plan and shared the court’s concerns over the likelihood of Mr. Guerra-Castaneda being tortured upon his deportation. Notwithstanding this command from the court, in September 2019, the federal government mistakenly deported Mr. Guerra-Castaneda to El Salvador, despite two federal court orders to keep him in the United States while his case for asylum was pending. 

After Plaintiff was deported, he was detained in a prison in El Salvador for 297 days where he was tortured, experienced inhumane conditions, and endured physical and emotional trauma. With the First Circuit threatening to find the U.S. Attorney General in contempt, the federal government brought Mr. Guerra-Castaneda back to the United States. After his return, Mr. Guerra-Castaneda filed a lawsuit against the U.S. government under the Federal Tort Claim Act (FTCA) seeking damages based on his unlawful deportation by the Department of Homeland Security and Immigration and Customs Enforcement.

As a response, the federal government moved to dismiss the case based on several grounds. One of the legal grounds raised was the foreign country exception of the FTCA. The federal government argued that it could not be responsible for the imprisonment and torture Mr. Guerra-Castaneda suffered in El Salvador because they occurred outside of the United States. The District Court for the District of Massachusetts rejected the federal government’s argument on February 16, 2023, and denied Defendants’ motion. The parties advised the court that the case settled on April 5, 2024, and the court dismissed the case on April 16, 2024.

Documents:

Counsel: ACLU of New Hampshire | Preti Flaherty Beliveau & Pachios PLLP

Contact: SangYeob Kim | ACLU of New Hampshire | SangYeob@aclu-nh.org.

P.J.E.S. v. Wolf and J.B.B.C. v. Wolf

Posted on by

P.J.E.S. v. Wolf, No. 1:20-cv-02245 (D.D.C., filed Aug. 14, 2020)
J.B.B.C. v. Wolf, No. 1:20-cv-01509 (D.D.C., filed June 9, 2020)

A recent series of cases have challenged the government’s invocation of rarely-used public health laws to restrict immigration by unaccompanied children and asylum seekers.

On March 20, 2020, President Trump announced that the Centers for Disease Control and Prevention (CDC) would issue an order “to suspend the introduction of all individuals seeking to enter the U.S. without proper travel documentation” across the northern and southern borders. Would-be border crossers were to be “immediately return[ed]” to their country of origin “without delay.” To justify the order, the Administration invoked 42 U.S.C. § 265, a rarely-used provision dating back to 1893, which gives federal public-health authorities the ability to “prohibit . . . the introduction of persons or property” from designated places where “by reason of the existence of any communicable disease in a foreign country there is serious danger of the introduction of such disease into the United States.” This restriction has come to be known as “Title 42.”

On March 20, 2020, CDC issued an interim final rule and an order directing the “immediate suspension of the introduction” of certain persons, including those seeking to enter the United States at ports of entry “who do not have proper travel documents,” “whose entry is otherwise contrary to law,” and “apprehended near the border seeking to unlawfully enter the United States.” Reports indicate that although CDC objected to the order, saying that there was no valid public-health justification for it, White House officials overrode those objections. Though CDC initially limited the order to thirty days, it has since extended the order indefinitely. On October 13, CDC issued final rules concerning its regulatory authority under § 265. CDC then issued a revised order pursuant to those rules. In February 2021, the Biden administration called for a review of the CDC order to determine if it was still needed or if modifications should be made, but on August 2, 2021, CDC issued a new order once again indefinitely extending application of Title 42.

The CDC order and regulations apply to unaccompanied children (who are entitled to special safeguards under the Trafficking Victims Protection Reauthorization Act (TVPRA)) and people seeking asylum, withholding of removal, or protection under the Convention Against Torture. The ACLU, along with a number of ally organizations, have filed a series of lawsuits on behalf of unaccompanied children challenging their expulsion under the CDC’s directives, the two most significant of which are discussed below.

J.B.B.C.

J.B.B.C. v. Wolf challenged the unlawful expulsion of a sixteen-year-old Honduran boy pursuant to Title 42. J.B.B.C. was being held in a hotel awaiting expulsion when the ACLU and others filed a complaint and request for a temporary restraining order. Based on J.B.B.C.’s arguments that the Title 42 Process was not authorized by § 265, and that the CDC order conflicted with various Immigration and Nationality Act (INA) provisions, Judge Carl Nichols issued a preliminary injunction barring Defendants from expelling J.B.B.C. Defendants then voluntarily took J.B.B.C. out of the Title 42 Process and transferred him to Office of Refugee Resettlement (ORR) custody.

Another child similarly subject to expulsion under Title 42, E.Y., was later amended into the case. Hours after he was added, Defendants similarly took him out of the Title 42 Process. Plaintiffs subsequently voluntarily dismissed J.B.B.C.

P.J.E.S.

On August 14, 2020, the ACLU Immigrants’ Rights Project, the ACLU of Texas, the Texas Civil Rights Project, Oxfam America, and the ACLU Foundation of the District of Columbia filed P.J.E.S. v. Wolf, a nationwide class action challenging the application of the Title 42 Process to unaccompanied children. On August 20, 2020, Plaintiffs moved for a classwide preliminary injunction. The district court judge then referred the case to a magistrate judge, who issued a report recommending that Plaintiffs’ motion for class certification be provisionally granted and that the motion for classwide preliminary injunction be granted. The magistrate judge concluded that Title 42 does not authorize summary expulsions and that if it were in fact read to permit expulsion of unaccompanied minors, it would conflict with statutory rights granted to them under the TVPRA and the INA.

On November 18, 2020, the court adopted the report, provisionally granting Plaintiffs’ motion to certify class and motion for preliminary injunction. Defendants moved for reconsideration on their request to stay the preliminary injunction and appealed the order to the DC Circuit. On December 3, the court denied Defendants’ motion for reconsideration.

On December 12, 2020, Defendants filed a notice advising the court that approximately 34 class members had been expelled from the United States, in contravention of the court’s injunction. These 34 were in addition to another 32 unaccompanied children expelled the same day the court granted the preliminary injunction.

On January 29, 2021, a motions panel of the D.C. Circuit stayed the P.J.E.S. preliminary injunction pending appeal and expedited the appeal.

In February 2021, CDC published a Notice of Temporary Exception from Expulsion of Unaccompanied Noncitizen Children under Title 42, and on July 16, 2021, CDC issued an order formally excepting unaccompanied minors from Title 42.  

On March 2, 2021, the Court of Appeals issued an order holding Defendants’ appeal of the preliminary injunction in abeyance pending further order of the court. The district court likewise granted the parties’ joint motion to hold the case in abeyance. On October 17, 2022, the D.C. Circuit issued an order terminating the abeyance, vacating the preliminary injunction, and remanded the case to the district court for a determination of whether all or part of the case has become moot. Defendants filed a motion to dismiss the case as moot on November 22, 2022. The court ordered the motion to dismiss held in abeyance on January 25, 2023. On November 6, 2023, Plaintiff stipulated to dismissal of the case.

Note: Two other cases involving the treatment of unaccompanied minors under Title 42 include G.Y.J.P. v. Wolf, No. 1:20-cv-01511 (D.D.C., filed June 9, 2020) and Texas Civil Rights Project v. Wolf, No. 1:20-cv-02035 (D.D.C., filed July 24, 2020).

Documents:

J.B.B.C. v. Wolf:

P.J.E.S. v. Wolf:

Press:

Wilbur P.G. v. United States

Posted on by

Wilbur P.G, et al., v. United States, No. 4:21-cv-04457 (N.D. Cal., filed June 10, 2021)

Plaintiffs are three families who were separated at the Arizona border in May 2018 under the Department of Justice’s Zero Tolerance policy. The parents were separated from their children while in Customs and Border Protection (CBP) custody, under the guise of pursuing criminal prosecutions against the parents. Two parents were never criminally prosecuted, while the other parent was prosecuted for illegal entry—a misdemeanor—and served a three-day sentence in criminal custody.

After separating the children from their parents, CBP officers transferred the plaintiff children to the custody of the Office of Refugee Resettlement (ORR). The families were separated for weeks. While detained, one parent sustained lasting physical injuries after being denied medical attention. One of the children was sexually abused while in ORR custody.

The families sued under the Federal Tort Claims Act to recover damages caused by the separation itself, as well as the physical and emotional injuries suffered by various plaintiffs during their time in detention.

Plaintiffs filed suit on June 10, 2021 in the Northern District of California. On January 5, 2022, Defendant United States filed a motion to transfer the case to the District of Arizona. Defendants also moved to dismiss the case for lack of subject matter jurisdiction. On May 10, 2022, the district court denied Defendant’s motion to transfer and motion to dismiss. On May 24, 2022, Defendant filed its answer to the complaint; Defendant later amended the answer on July 29, 2022. After some pre-trial briefing, in July 2024 the parties submitted a joint notice of conditional settlement and stipulation to stay litigation.

Documents:

Counsel: Lawyers’ Committee for Civil Rights of the San Francisco Bay Area | Keker, Van Nest & Peters

Contact: Victoria Petty | vpetty@lccrsf.org

Press:

Note: Other family separation cases filed in California include:

  • I.T. v. United States, 4:22-cv-5333 (N.D. Cal., filed Sept. 20, 2022);
  • J.R.G. and M.A.R. v. United States, 4:22-cv-5183 (N.D. Cal., filed Sept. 12, 2022);
  • Rodriguez v. United States, 2:22-cv-2845 (C.D. Cal., filed Apr. 28, 2022);
  • A.F.P. v. United States, 1:21-cv-780 (E.D. Cal., filed May 14, 2021);
  • Nunez Euceda v. United States, 2:20-cv-10793 (C.D. Cal., filed Nov. 25, 2020).

Other family separation cases filed in district courts in other states:

  • F.C.C. v. United States, 2:22-cv-5057 (E.D.N.Y., filed Aug. 25, 2022);
  • W.P.V. v. Cayuga Home for Children, Inc. and United States, 1:21-cv-4436 (S.D.N.Y., filed May 17, 2021);
  • C.D.A. v. United States, 5:21-cv-469 (E.D. Pa., filed Feb. 1, 2021);
  • R.Y.M.R v. United States, 1:20-cv-23598 (S.D. Fla., filed Aug. 28, 2020);
  • D.J.C.V. v. United States, 1:20-cv-5747 (S.D.N.Y., filed July 24, 2020).

For a list of District of Arizona family separation cases, consult the entry on C.M. v. United States.

A.F.P. and J.F.C. v. United States of America

Posted on by

A.F.P. and J.F.C. v. United States of America, No. 1:21-cv-780 (E.D. Cal., filed May 14, 2021)

Plaintiff A.F.P. and his fifteen-year-old son J.F.C., both citizens of Honduras, approached Border Patrol agents near McAllen, Texas to seek asylum. Instead, Border Patrol agents separated J.F.C. from his father and detained both in a holding facility, often referred to as a hielera or “ice box” for its freezing cold temperatures. The hielera was cold and cramped, and the food provided was frozen and expired.

The two were only permitted to speak to each other for 30 minutes per day. Three days after the two were taken into custody, A.F.P. was charged with illegal entry and taken to federal criminal court. During A.F.P.’s court hearing, CBP and ICE officers designated J.F.C. as an unaccompanied minor, transferred his custody to the Office of Refugee Resettlement (ORR) and moved him to a facility in New York. When A.F.P. returned to the detention center, his son was gone. The officers did not advise A.F.P. of the reason or destination of his son’s transfer.

In New York, J.F.C. resided at the Children’s Village facility, where he was not allowed to communicate with his father, was denied medical care, and was subject to emotional abuse. As a result of this neglect, J.F.C. suffers from hearing loss from an untreated ear infection and severe memory problems because of the trauma he experienced.

During this time, A.F.P. was held in ICE detention in Texas, where he had an interview with an asylum officer and was told he had a credible asylum case. After officers at the detention center put A.F.P. in touch with a notary public who led him to believe that pursuing his asylum case would keep him from reuniting with his son, A.F.P. withdrew his asylum application at his hearing in front of an immigration judge. He was then transferred to maximum security prisons and deported a month later. He was separated from his son for almost fifteen months. A human rights organization later helped A.F.P. lawfully re-enter the U.S. and reunite with J.F.C.

Plaintiffs filed suit against the federal government in the Eastern District of California, seeking damages under the Federal Tort Claims Act (FTCA) for intentional infliction of emotional distress, abuse of process, negligence as to family separation, and negligence. Defendant United States moved to dismiss the claims and moved to transfer the case to the Southern District of Texas. On July 11, 2022, the court dismissed Plaintiffs’ negligence cause of action regarding J.F.C.’s time in ORR custody as barred by the independent contractor exception to the FTCA’s waiver of sovereign immunity.  On July 26, 2022, Defendant filed its answer to the remaining claims. As of February 2023, discovery is currently underway.

On December 11, 2023, the court dismissed the case after the parties jointly stipulated to dismiss with prejudice.

Documents:

Counsel: Morgan, Lewis & Bockius L.L.P.

Doe et al. v. Mayorkas et al.

Posted on by

Doe et al. v. Mayorkas et al., No. 1:21-cv-11571-IT (D. Mass., filed Sept. 24, 2021)

Plaintiffs Jane Doe and her two 10-year-old sons are citizens of Haiti who entered the United States in September 2021 to seek asylum. They were among the thousands of Haitians forced to remain for days under the Del Rio International Bridge. Later, Plaintiffs were transported to San Antonio, Texas to be processed for expulsion pursuant to Title 42. As of September 24, 2021, they remained in CBP custody, and their expulsion under Title 42 was believed to be imminent.

Plaintiffs’ complaint asserts that the U.S. government’s Title 42 expulsion policy violates the Immigration and Nationality Act (INA), Title 42, the Administrative Procedure Act, the U.S. Constitution (equal protection and due process), and the United States’ nonrefoulement duty under international law. Plaintiffs request, among other things, that the court enjoin their expulsion under Title 42 and order Defendants to process their asylum claims in accordance with the INA.

As of November 2021, the government released the clients into removal proceedings and paroled them. Plaintiffs then voluntarily dismissed this case.

Documents:

Petition for Writ of Mandamus and Complaint

Counsel: Amy Maldonado | Law Office of Amy Maldonado

Bridget Cambria | Cambria & Kline, P.C.

Susan B. Church | Demissie & Church

Contact: Amy Maldonado | 517-803-2870 | amy@amaldonadolaw.com

State of Texas and State of Louisiana v. United States

Posted on by

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); 22-40367 (5th Cir., filed Jun. 23, 2020)

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. The Fifth Circuit granted appellants’ unopposed motion to dismiss the appeal on February 11, 2022. 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.

The district court case went to trial on February 23, 2022. After the bench trial and post-trial briefing, the court issued a memorandum opinion and order on June 10, 2022, finding the plaintiff states have proven their first four counts by a preponderance of the evidence, and finding that the states did not prove Count V with regard to lack of consultation of the individual states. The final judgment vacated the September 30, 2021, memorandum. The government filed a notice of appeal to the Fifth Circuit on June 13, 2022. The Fifth Circuit denied a motion for stay pending appeal, and an application for a stay of judgment was filed with the Supreme Court on July 8, 2022. The Supreme Court denied the application for stay but construed the application as a petition for certiorari before judgment and granted the petition on July 21, 2022. The Fifth Circuit appeal was placed in abeyance pending the Supreme Court case.

On June 23, 2023, the Supreme Court decided that the states lacked standing to challenge deportation priorities, and in an 8-1 decision said that no precedent existed to support a federal court ordering the Executive Branch to alter arrest policies in order to make more arrests.

Documents:

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

Press:

Uriel J. Garcia, Supreme Court rejects Texas effort to force Biden administration to change deportation policy, The Texas Tribune, Jun. 23, 2023.

Texas and Missouri v. Biden

Posted on by

Texas & Missouri v. Biden, No. 2:21-cv-00067-Z (N.D. Tex., filed Apr. 13, 2021); 21-10806 (5th Cir., filed Aug. 16, 2021); 23-10143 (5th Cir., filed Feb. 14, 2023)

Within hours after President Biden’s inauguration, the Biden administration suspended new enrollments into the Trump administration’s Remain in Mexico program (also known as the “Migrant Protection Protocols” or “MPP”), which forcibly returned certain people seeking asylum at the southern U.S. border to Mexico, where they had to survive dangerous conditions during the pendency of their immigration proceedings in U.S. immigration courts. The program was notoriously a humanitarian disaster – as a result of the policy, people seeking asylum were murdered, raped, kidnapped, extorted, and compelled to live in squalid conditions. They also faced significant procedural barriers to meaningfully presenting their legal claims for protection.

On April 13, 2021, the states of Texas and Missouri (Plaintiffs) filed suit in the Northern District of Texas, arguing that the Biden administration’s January 2021 statement suspending new enrollments into MPP “functionally end[ed] the MPP” program and was arbitrary and capricious in violation of the Administrative Procedures Act (APA) given the “huge surge of Central American migrants, including thousands of unaccompanied minors, passing through Mexico in order to advance meritless asylum claims at the U.S. border.” Plaintiffs also argued that the Biden Administration’s decision to suspend MPP violated both the Constitution and an agreement between Texas and the federal government.

On May 14, 2021, Plaintiffs moved for a preliminary injunction. However, before the briefing was complete, the Department of Homeland Security (DHS) issued a new memo on June 1, 2021 formally terminating MPP. The court concluded that the June 1 memorandum mooted Plaintiffs’ original complaint (which had focused on the January 2021 pronouncement), but allowed Plaintiffs to amend their complaint and file a new motion seeking to enjoin the June 1 memo. Plaintiffs did so. On June 25, 2021, Defendants filed their response to Plaintiffs’ preliminary injunction motion, and Plaintiffs filed their reply on June 30, 2021.

On July 22, 2021, the district court held a consolidated hearing and bench trial on the merits, and the parties then filed supplemental briefs on the scope of relief available to Plaintiffs. On August 13, 2021, the district court issued an order concluding that Plaintiffs were entitled to relief on both their APA and statutory claims and issued a nationwide injunction permanently enjoining Defendants from implementing or enforcing the June 1 memo, vacating the June 1 memo in its entirety, and ordering Defendants “to enforce and implement MPP in good faith until such a time as it has been lawfully rescinded in compliance with the APA and until such a time as the federal government has sufficient detention capacity to detain all [noncitizens] subject to mandatory detention under Section 1255 without releasing any [noncitizens] because of a lack of detention resources.” The court’s reasoning was rooted in a mistaken understanding of 8 U.S.C. § 1225(b)(2)(A) and its determination that MPP “demonstrated operational effectiveness” — a finding based on Trump Administration statements and flawed data analysis and which ignored hundreds of pages of record evidence detailing the dangers MPP respondents had experienced in Mexico.

The district court stayed its order for seven days to allow the federal government time to seek emergency relief from the Fifth Circuit. On August 16, 2021, the Biden administration sought an additional stay from the district court, which the district court summarily denied two days later. The Biden administration then appealed to the Fifth Circuit. The American Immigration Council, Center for Gender and Refugee Studies, Human Rights First, and Southern Poverty Law Center, filed an amicus brief in support of the government, asking the Fifth Circuit to prevent the reinstatement of MPP and arguing that the district court’s order rests on inaccurate facts about the purported effectiveness of MPP in deterring migration and reducing meritless asylum claims. The ACLU and ACLU of Texas filed a separate amicus brief in support of the government primarily focusing on the district court’s misinterpretation of 8 U.S.C. § 1225(b)(2)(A).

On August 19, 2021, the Fifth Circuit denied the government’s request for a stay in a published decision that wholly adopted as true the Trump administration’s claims about the effectiveness of MPP in deterring migration and ignored the mountainous evidence refuting such claims. The decision, however, stated that the administration does not have to restart MPP at any particular time, just “in good faith” (without defining the term) and clarified that the government “can choose to detain” someone in accordance with § 1225, so long as the government does not “simply release every [noncitizen] described in § 1225 en masse into the United States.”

On August 20, 2021, the Biden administration filed an application to stay the district court’s injunction and for an emergency administrative stay with the Supreme Court. That same day – just minutes before the injunction was to go into effect – Justice Alito granted an emergency stay of the injunction until 11:59 pm EDT on August 24, 2021, to allow the full Court to consider the application. On August 23, 2021, the ACLU and ACLU of Texas filed an amicus brief in the Supreme Court in support of the stay application, again addressing the lower courts’ deeply flawed premise that the federal government must subject all people seeking asylum apprehended at the border to mandatory detention or return them to Mexico under MPP.

On August 24, 2021, the Supreme Court denied the government’s stay request in a 6-3 decision, stating that “[t]he applicants have failed to show a likelihood of success on the claim that the memorandum rescinding the Migrant Protection Protocols was not arbitrary and capricious.” The decision, however, did not endorse the states’ incorrect claims that the government is actually required to return people to Mexico under the immigration statutes. That same day, DHS issued a statement saying that the Department “respectfully disagrees with the district court’s decision,” have appealed that order, and “will continue to vigorously challenge it.” However, the Department stated that “[a]s the appeal process continues . . . DHS will comply with the order in good faith.”

On September 23, 2021, Plaintiff States filed a motion to enforce the preliminary injunction and expedite discovery, citing delayed implementation of MPP and bad faith on the part of the government. The federal government responded that Plaintiff States had not met their burden of proof to demonstrate that the government is not acting in good faith to implement the injunction. The federal government filed their reply at the Fifth Circuit on October 19, 2021.

On October 29, 2021, DHS issued a memorandum terminating MPP again. In light of the termination memo, the administration filed a motion with the Fifth Circuit in Texas v. Biden stating that the appeal of the injunction requiring them to re-start MPP in good faith was now moot and requesting that the court vacate the district court’s preliminary injunction and remand or, alternatively, to stay the appeal while the case is remanded. On November 1, 2021, the states filed an opposition to the administration’s claim of mootness and request for vacatur or stay and remand, and the Fifth Circuit heard oral arguments from both parties the following day.

On November 18, 2021, the district court issued an opinion granting in part Plaintiffs’ motion to enforce, allowing for limited discovery but denying Plaintiffs’ request to implement MPP in the same manner. On December 21, 2021, the Fifth Circuit issued an order affirming the district court’s judgment and refusing to vacate the injunction. The Biden administration petitioned for certiorari. The Supreme Court granted certiorari and reversed the Fifth Circuit’s decision on June 30, 2022. The Supreme Court held, as an initial matter, that the district court’s injunction violated 8 U.S.C. § 1252(f)(1). Further, the Court held that the government’s recission of the MPP program did not violate section 1225 of the INA.

The Fifth Circuit then remanded the action to the Northern District of Texas on August 6, 2022. The Defendants moved to vacate the permanent injunction, and the district court vacated the injunction on August 8, 2022. Following the district court’s decision vacating the injunction, DHS announced that it will no longer enroll new individuals in MPP, and will disenroll individuals currently in MPP when they return for their next scheduled court date.

On the same day, Plaintiffs filed a motion for leave to file a second amended complaint, along with a motion to “postpone the effective date” of the October 29 memo rescinding MPP under the APA. The district court set a discovery and briefing schedule for the motion to postpone. The Defendants produced the relevant administrative record and filed a response in opposition to the motion to stay agency action on September 2, 2022. Briefing on the motion to stay agency action–including surreplies by both parties—was completed on September 20, 2022.

On December 15, 2022, the district court stayed the October 29 memo and the decision to terminate MPP pending the resolution of the merits of the claim. On February 13, 2023, Defendants filed an interlocutory appeal to the Fifth Circuit. On May 15, 2023, Defendants submitted an unopposed motion to dismiss the appeal without prejudice, which was granted on May 25, 2023.

On May 15, 2023, in the district court, Defendants filed an answer to the second amended complaint. The court then ordered supplemental briefs and supplemental response briefs in support of summary judgment. Briefing was completed on October 16, 2023, and parties await the court’s decision.

Documents:

Compliance Reports:

DHS Memorandum:

Counsel for Amicus: ACLU Immigrants’ Rights Project; ACLU Foundation of Texas; American Immigration Council; Center for Gender & Refugee Studies; Human Rights First; Southern Poverty Law Center