Supreme Court Grants Cert to Split Circuit Decision on DHS Immigration Guidance
This case law update was written by James P. Garay Heelan, an attorney at the law firm of Shaw Bransford & Roth, where he has practiced federal personnel and employment law since 2012. Mr. Heelan represents federal personnel across the Executive Branch, including career senior executives, law enforcement officers, foreign service officers, intelligence officers, and agencies in matters of federal personnel and employment law.
The United States Court of Appeals for the Fifth and Sixth Circuits have split on whether to temporarily prevent the Department of Homeland Security (DHS) from enforcing guidance prioritizing certain noncitizen groups for arrest and deportation.
On July 5, the Sixth Circuit reversed an injunction on the guidance issued by the Southern District of Ohio. The next day, July 6, the Fifth Circuit denied a DHS request to stay an injunction on the guidance issued by the Southern District of Texas. These divergent appeals court decisions lay foundation for the Supreme Court to eventually decide the matter. Already, on July 8, the Biden Administration asked the Supreme Court to stay the Southern District of Texas order.
As FEDagent previously reported, DHS Secretary Alejandro Mayorkas in September 2021, issued new “permanent guidance” implementing federal removal statutes requiring DHS to detain certain noncitizens with criminal convictions pending their deportation proceedings. That “permanent guidance” instructed ICE Enforcement and Removal Operations personnel to not “rely on the fact of conviction…alone” when making enforcement decisions. The guidance required those personnel to “evaluate the individual and the totality of the facts and circumstances” and to exercise their “discretion.”
Arizona, Montana, and Ohio sued in the U.S. District Court for the Southern District of Ohio, for an injunction on the DHS Secretary’s guidance. Texas and Louisiana separately sued in the U.S. District Court for the Southern District of Texas. The States argued in their respective jurisdictions that the DHS guidance violates the Administrative Procedure Act and skirts federal laws that allow DHS to release noncitizens pending deportation proceedings only when “necessary” for witness protection purposes where the noncitizen “will not pose a danger to the safety of other persons or of property and is likely to appear for any scheduled proceeding.”
As part of their lawsuit, the States asked the district courts to temporarily prohibit DHS and ICE from enforcing the guidance while the States litigated their case. Both district courts granted those requests. The ensuing injunctions prohibited federal agents from relying on the new DHS guidance to make "custody decisions" about immigrants subject to mandatory detention. The injunctions also blocked the use of the guidance to release or delay the deportation of immigrants with final orders of deportation.
DHS appealed the Southern District of Ohio injunction to the U.S. Court of Appeals for the Sixth Circuit, and the Southern District of Texas to the U.S. Court of Appeals for the Fifth Circuit. The Sixth Circuit granted a stay of the injunction pending its decision on the appeal.
In its July 5 decision on the DHS appeal, the Sixth Circuit examined the District Court’s decision to issue the preliminary injunction for “abuse of discretion” and to “evaluate its legal determinations, including the likelihood of [the lawsuit’s] likelihood of success on the merits.”
The appellate court then began its analysis by expressing skepticism that Arizona, Montana, and Ohio lacked sufficient evidence that the DHS guidance “caused” them harm. If the States failed to establish causation to the District Court, they would lack constitutional standing to bring their case and the District Court would dismiss it. Additionally, because the DHS guidance appears to allow “independent decision making” and can be “discretionarily relied on,” the Sixth Circuit expressed “doubt that the Administrative Procedure Act permits review.”
Even if the States had standing and the Administrative Procedure Act allowed review of the DHS guidance, the Sixth Circuit held “they are unlikely to succeed on the merits of their claim.” The Court explained that “separation of powers” likely prevents the federal judiciary to decide “disputes that turn principally on policy and resource debates” between the Executive Branch and Congress. Further, the Court held DHS’s “limited resources” rationale for its guidance was not unreasonable, and that DHS was legally allowed to issue its guidance without going through the notice and comment process required for federal regulations.
“In view of our doubts about the States’ claims,” the Sixth Circuit held,” the public interest favors reversal” of the District Court’s nationwide injunction on the DHS guidance. It then remanded the case to the Southern District of Ohio for litigation.
The day after the Sixth Circuit granted the DHS appeal, the Fifth Circuit denied a DHS request to stay the Southern District of Texas injunction, reasoning that “DHS fails to make a strong showing of likelihood of success on appeal.” That stay denial left the Southern District of Texas injunction order in effect.
On July 8, the Biden Administration asked the U.S. Supreme Court to override the Fifth Circuit and stay the Southern District of Texas injunction order. Furthermore, they requested that the Supreme Court consider the request as an appeal and schedule oral arguments for the fall.
On July 21, the Supreme Court granted certiorari and rejected the Biden Administration’s request.
Read the full Fifth Circuit order here: Texas v. United States.
Read the full Sixth Circuit decision here: Arizona v. Biden.
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