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Enforcement Guidelines: The Next Chapter in the Immigration Policy Dispute

This post originally appeared in the TBA's Immigration Connect on August 24, 2022 and has been reposted with permission from the author.

The U. S. Supreme Court ended the 2021 term with its latest pronouncement on the authority of the executive branch to set immigration policy in Biden v. Texas,[1] upholding the Biden administration’s rescission of the Migrant Protection Protocols (commonly referred to as the “remain in Mexico” program). Now, heading into the court’s 2022 term, the stage is already set for a new dispute over immigration policy in the nation’s top court. This time, the focus will be on the authority of the executive branch to establish guidelines for the enforcement of immigration law.

Immigration agencies and officials have long faced the reality that they lack the resources necessary to identify, apprehend, detain and remove all the potentially deportable noncitizens residing in the U. S. That is certainly the case today, with over 11 million noncitizens residing in the U. S. who could be subject to removal and an immigration enforcement system that has the capacity to process only a fraction of that many removals each year. The traditional response to this dilemma has been for the executive branch to establish enforcement guidelines for immigration officials to use as they determine, in the exercise of their prosecutorial discretion, which of the many potentially deportable noncitizens they should prioritize for apprehension and removal.

President Biden’s Secretary of Homeland Security Alejandro Mayorkas delineated the enforcement guidelines giving rise to the current dispute in a September 2021 memorandum titled “Guidelines for the Enforcement of Civil Immigration Law” (the “Guidelines”).[2] Harkening back to Obama-era immigration policy, the Guidelines directed immigration officials to “prioritize for apprehension and removal noncitizens who are a threat to our national security, public safety and border security.”[3] The Guidelines also cautioned immigration officials to exercise their discretionary authority in a manner that comports with noncitizens’ civil rights and civil liberties, avoiding discriminatory enforcement and enforcement based on an individual’s exercise of First Amendment rights or assertion of legal rights in the U. S. legal system.[4]

Employing a familiar strategy, several state attorneys general quickly challenged the Guidelines by suing in strategically selected federal courts. Before the Guidelines took effect, Arizona, Montana and Ohio brought a suit in the U. S. District Court for the Southern District of Ohio, which sustained the states’ challenge and issued a nationwide preliminary injunction blocking the implementation of the Guidelines.[5]

In an expedited appeal, the Sixth Circuit reversed the district court’s grant of a nationwide preliminary injunction.[6] Writing for a unanimous Sixth Circuit panel, Chief Judge Jeffrey Sutton first explained that the states lack standing to challenge the Guidelines under Article III of the U. S. Constitution. The court held that the states had failed to establish any injury caused by the Guidelines that would be redressed by the relief sought. According to the court’s analysis, the states’ claimed injuries — consisting mainly of “downstream costs” resulting from less vigorous immigration enforcement — were too speculative to establish the type of concrete injury needed for Article III standing.[7] The court further concluded that the states had failed to show a causal link between the Guidelines and their claimed injuries. The court was especially critical of the states’ reliance on data indicating a recent drop in detentions and removals because the data predated the Guidelines and coincided with significant disruptions in migration related to the COVID-19 pandemic.[8] In addition to finding that the states lacked constitutional standing, the court held that the Administrative Procedures Act (APA) disallows judicial review of the Guidelines because they operate as guidance and preserve immigration officials’ discretion, demonstrating that they do not create the type of legal consequences required to trigger judicial reviewability.[9]

Turning to the merits, the court concluded that the states were unlikely to succeed on any of their APA claims. The court rejected the notion that the Guidelines are contrary to two provisions of the Immigration and Nationality Act (INA). The first such provision is INA § 236(c)(1), which provides that the Department of Homeland Security (DHS) “shall take into custody” any noncitizen who is removable because of convictions for specified crimes upon the noncitizen’s release from state or federal custody for the qualifying offense. The court reasoned that the Guidelines — which prioritize enforcement against noncitizens who threaten national security and public safety — “do[] not necessarily violate a single word of the statute.”[10]

The Sixth Circuit likewise concluded that the Guidelines do not violate INA § 241(a)(1)(A), which provides that, subject to specified exceptions, “when an alien is ordered removed, the attorney general shall remove the alien from the United States within a period of 90 days.” Because other provisions of the INA acknowledge that removal will not always occur within 90 days, and considering the established discretion of DHS officials to determine whom to remove and when to do so, the court held that the Guidelines do not contradict INA § 241(a)(1)(A) despite the statute’s seemingly mandatory deadline for effectuating removals.[11]

Emphasizing the deferential standard of review, the court concluded that the Guidelines were not arbitrary or capricious under the APA.[12] Finally, the court held that the APA’s requirement of notice and comment does not apply because the Guidelines provide discretionary guidance instead of establishing any substantive rule. Rejecting each of the states’ claims, the court reversed the district court’s grant of a preliminary injunction and remanded the case for further proceedings.[13]

Notably, Chief Judge Sutton appended a separate concurrence to his own opinion for the panel. In the concurrence, Chief Judge Sutton expressed two additional reasons supporting the decision. First, he asserted that under INA § 242(f)(1), the district court lacked jurisdiction to enter the injunctive relief sought by the states. Second, he opined that the district court exceeded its authority by issuing an injunction that extended to the entire nation instead of limiting relief to the states involved in the litigation.[14]

Around the same time as the litigation in the Sixth Circuit, Texas and Louisiana brought a nearly identical challenge in the U. S. District Court for the Southern District of Texas. Following a bench trial, the district court sustained the states’ challenge and vacated the entire September 2021 memorandum on a nationwide basis.[15] The case went before the Fifth Circuit Court of Appeals on a motion by DHS to stay the district court’s nationwide vacatur of the Guidelines pending appeal. The Fifth Circuit denied DHS’ motion to stay, reaching the opposite conclusion of the Sixth Circuit on every key issue and holding that the states established a likelihood of success on the merits.[16]

The Fifth Circuit held that Texas had established Article III standing based on injuries caused by the Guidelines, including the “the cost of incarcerating or paroling certain criminal aliens” and “substantial costs associated with criminal recidivism, the rate of which is significant among the illegal alien population.”[17] As to reviewability under the APA, the Fifth Circuit rejected DHS’ contention that the Guidelines merely “ensure that discretion is exercised in an informed way,” holding that the Guidelines had binding legal effects and would significantly limit immigration officials’ discretion to arrest and detain noncitizens.[18]

As to the merits of the states’ APA claims, the Fifth Circuit held that the Guidelines unlawfully conflict with both INA § 236(c)(1) (requiring DHS officials to take noncitizens convicted of specified offenses into custody their release from state or federal detention) and § 241(a)(1)(A) (establishing the 90-day deadline for effectuating removals).[19] The Fifth Circuit emphasized the mandatory language in those provisions and held that new enforcement guidelines would impermissibly inject discretionary considerations into bright-line statutory directives regarding detention and removal. In addition, the Fifth Circuit agreed with the states’ contention that the Guidelines were arbitrary and capricious because DHS failed to “adequately consider[] the relevant costs to the States or their reliance interests in the pre-existing enforcement policy.”[20] Finally, the Fifth Circuit determined that, because the Guidelines purported to establish binding, substantive rules, DHS violated the APA when it issued them without notice and comment.[21]

Following these divergent decisions by the Fifth and Sixth Circuits, the matter came before the U. S. Supreme Court when the U. S. Solicitor General Elizabeth Prelogar, appearing on behalf of the Biden administration and DHS, asked the court to stay the judgment arising from the Fifth Circuit litigation.[22] The court denied that application for stay (with the three liberal justices and Justice Barrett dissenting) but construed it as a petition for certiorari before judgment, which the court granted. The court ordered briefing on all the key issues that split the Fifth and Sixth Circuits, including whether the states have Article III standing, whether the Guidelines are contrary to INA § 236(c) or INA § 241(a) and whether INA § 242(f)(1) prevents an order vacating the Guidelines.[23] Although not specifically addressed in the briefing order, an important question will be whether the court picks up on the issue of whether it is appropriate for district courts to order injunctive relief on a nationwide basis, especially given that Judge Sutton highlighted that issue in his concurrence and at least two members of the court (Justices Thomas and Gorsuch) are on the record as being generally opposed to such relief.[24]

Notably, given the Supreme Court’s initial ruling, the order vacating the Guidelines will likely remain in effect at least until the court decides the case sometime after it hears arguments in November 2022. Regardless of whether the case is resolved based on Article III standing or the APA, the court’s decision will have significant ramifications for the authority of the executive branch to provide guidance to immigration officials about how to expend scare resources when enforcing immigration law.

William Gill is the associate dean for academic affairs at the Lincoln Memorial University School of Law, where he teaches Legal Writing, Civil Procedure, Tennessee Constitutional Law and Immigration Law. He also serves as a volunteer attorney for Catholic Charities of East Tennessee’s Office of Immigrant Services.

[1] 142 S. Ct. 2528, 2548 (2022). [2] Sec’y of Homeland Sec. Alejandro Mayorkas, Guidelines for the Enforcement of Civil Immigration Law at 2 (Sept. 30, 2021), available at [hereinafter “Guidelines”]. [3] Id. at 3. [4] Id. at 5. [5] Arizona v. Biden, 40 F.4th 375, 380 (6th Cir. 2022). [6] Id. [7] Id. at 386. [8] Id. at 384-85. [9] Id. at 387-89. [10] Id. at 390. [11] Id. at 309-91. [12] Id. at 392-93. [13] Id. at 393-94. [14] Id. at 394-98 (Sutton, C.J., concurring). [15] Texas v. United States, 40 F.4th 205, 215 (5th Cir. 2022). [16] Id. [17] Id. at 216. [18] Id. at 220-21. [19] Id. at 223-25. [20] Id. at 228. [21] Id. at 228-29. [22] United States v. Texas, No. 22-58, 2022 WL 2902560, Appl. for a Stay of the Judgment Entered by the U. S. Dist. Ct. for the So. Dist. of Tex. (U.S. July 8, 2022). [23] United States v. Texas, No. 22-58, 2022 WL 2841804, at *1 (U. S. July 21, 2022). [24] See, e.g., Trump v. Hawaii, 138 S. Ct. 2392, 2424–29 (2018) (Thomas J., concurring); DHS v. New York, 140 S. Ct. 599, 599–601 (2020) (mem.) (Gorsuch, J., concurring).

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