Federal Judge Blocks Biden's 100-Day 'Pause' on Removals

When 'shall' means 'shall'; individual positions on nationwide injunctive relief will likely switch

By Andrew R. Arthur on January 27, 2021

Judge Drew B. Tipton of the U.S. District Court for the Southern District of Texas issued a temporary restraining order yesterday blocking implementation of a 100-day "pause" on the removal of most aliens subject to final orders of removal, announced by DHS on January 20. Those who were or, conversely were not, fans of injunctive relief in the last administration will likely find their opinions have changed.

On inauguration day, DHS issued a memorandum captioned "Review of and Interim Revision to Civil Immigration Enforcement and Removal Policies and Priorities".

Among other things, that memorandum directed a 100-day pause in removals from the United States, with four limited exceptions (threats to the national security, aliens not present before November 1, 2020, aliens who waived their right to remain, and unspecified aliens whose removal is required by law).

DHS contended that this pause was needed to guarantee that there was sufficient staffing at the southwest border, to comply with pandemic protocols, and to ensure that its resources were being directed toward the department's highest enforcement priorities.

As my colleague Jessica Vaughan recently stated: "This gives the impression that ICE and other enforcement officers will be sent to help out at the southwest border as part of a 'surge' of resources, but instead they are being told to sit on their hands and not do their jobs."

I noted on January 25 that Texas and other states had entered into immigration-enforcement agreements with the outgoing DHS, and that Texas state Attorney General (AG) Ken Paxton had threatened to challenge the 100-day moratorium on the basis of that agreement.

He made good on that threat, and filed the suit at issue before Judge Tipton, seeking a TRO of the January 20 DHS 100-day pause on removals.

Judge Tipton made clear that his order was not based on that agreement — or at least not yet — holding: "The issues implicated by that Agreement are of such gravity and constitutional import that they require further development of the record and briefing prior to addressing the merits."

Instead, he ruled that a TRO was appropriate based on two claims Texas raised under the Administrative Procedure Act (APA), which was the avenue of recourse for many of those who had opposed Trump's immigration initiatives.

As a preliminary matter, the court held that Texas had established standing based on the fiscal harm that the state would incur were the pause to take effect, in the form of millions of dollars in funding for public services to illegal aliens.

Turning to the claims themselves, Judge Tipton concluded that Texas was likely to prevail on its argument that the pause violated the APA (which allows courts to set aside agency actions that are contrary to law or in excess of statutory authority), because the pause violates section 241(a)(1)(A) of the Immigration and Nationality Act (INA).

That provision states in part that "when an alien is ordered removed", DHS "shall remove the alien from the United States within a period of 90 days." Judge Tipton rejected the government's argument that this section of the INA "does not mandate removal within the 90-day removal period", finding that Congress's use of the word "shall" makes this a mandatory requirement.

In connection with this claim, he also rejected the government's argument that the memorandum does not constitute a "final agency action" that is reviewable under the APA. He concluded that the pause itself "is sufficiently final and immediate to denote the consummation of the agency's decision as it relates to a pause in removals."

Additionally, Judge Tipton further held that the pause called for in the January 20 memorandum was "arbitrary and capricious", again in violation of the APA, not only because the memorandum "fails to consider potential policies more limited in scope and time", but also because the memorandum "fails to provide any concrete, reasonable justification for a 100-day pause on deportations".

In particular, he found that DHS failed to show how a specific 100-day pause in removals was required to accomplish the goals set out in the January 20 memorandum of completing a comprehensive review of its removal policies, implementing interim enforcement policies in the meantime, and allocating its resources to the southwest border and to respond to pandemic protocols.

He concluded that the department's "silence" on these issues indicated that the terms of the memorandum "were not a result of 'reasoned decision-making.'" That said, he noted that the department could expand on its reasoning in subsequent briefing — but would still have to rely on the grounds presented for the pause in the memorandum.

Finally, while noting that nationwide injunctions "are a topic of fierce and ongoing debate in both the courts and the legal academy", he found in accordance with Fifth Circuit precedent (specifically, Texas v. U.S., the DAPA case) that one was appropriate in this case.

Specifically, he concluded that a nationwide injunction was necessary to ensure uniformity in the application of the immigration laws (again, a point made by many courts that universally enjoined Trump immigration initiatives), and that Texas' interests could not be protected by a more limited injunction because aliens who were not removed and were living elsewhere could subsequently move to the Lone Star State.

Accordingly, he enjoined the 100-day pause on removals in the memorandum "in every place" DHS "would have jurisdiction to implement it." (Emphasis in original.) Again, he promised to revisit the scope of the injunction after additional briefing in connection with a pending motion for preliminary injunction.

Paxton took to Twitter to celebrate the court's decision:

How long his victory lasts remains to be seen.

The government will likely seek circuit-court review of Judge Tipton's TRO. Given past Fifth Circuit decisions, the government may find that it will not have an easy go of it, however. Further, given the limited nature of the "pause", it is questionable whether the Supreme Court will rule before it becomes moot.