Fifth Circuit Denies Stay of Order Vacating Mayorkas’ Enforcement Restrictions

Limits on ICE officers are lifted, for now, but look for Supreme Court action

By Andrew R. Arthur on July 8, 2022

On July 6, the Fifth Circuit issued an order in Texas v. U.S., denying a stay of federal district Judge Drew Tipton’s June 10 order vacating DHS Secretary Alejandro Mayorkas’ latest immigration enforcement guidance, issued on September 30 and captioned “Guidelines for the Enforcement of Civil Immigration Law” (Mayorkas memo). 

Criminal Detention Mandates in the Immigration and Nationality Act. The statutory basis for almost all immigration enforcement is the Immigration and Nationality Act (INA), passed in 1952 and amended more than 100 times since.

Two specific provisions of the INA were at issue in Texas. The first is section 236(c) of the INA, which requires ICE officers to detain and hold aliens who are removable on specified criminal grounds as soon as they are released from criminal custody.

The second is section 241(a) of the INA. It requires ICE to remove all aliens within 90 days after their removal orders have become final, and to detain them for that period pending removal. For criminal aliens, those detention rules are even more restrictive: “Under no circumstance during the removal period shall [DHS] release an alien who has been found” removable on criminal grounds.

Biden Administration’s First Attempts to Roll Back Congress’ Mandates. The Mayorkas memo is the third such guidance that has been issued under the Biden administration to limit immigration enforcement, and Judge Tipton has been on the case for all of them.

The first guidance memo was issued on January 20, 2021, by then-Acting DHS Secretary David Pekoske, captioned “Review of and Interim Revision to Civil Immigration Enforcement and Removal Policies and Priorities” (Pekoske memo).

That memo announced a 100-day review of DHS immigration-enforcement policies, as well as a 100-day moratorium on almost all removals from the United States. Setting the table for the litigation that followed, Judge Tipton blocked the removal moratorium portion shortly after that memo was issued, and it thereafter expired.

Under the guise of “limited resources”, the Pekoske memo also narrowed DHS’s enforcement efforts to three specified “priorities” of aliens: spies and terrorists (threats to national security); aliens who entered illegally on or after November 1, 2020 (threats to border security); and aliens convicted of aggravated felonies and released from incarceration on or after the date of that memo (threats to public safety).

Thereafter, on February 18, Acting ICE Director Tae Johnson issued a new guidance memo, captioned “Interim Guidance: Civil Immigration Enforcement and Removal Priorities” (Tae Johnson memo).

The Tae Johnson memo expanded — ever so slightly — the class of aliens deemed enforcement priorities in the Pekoske memo.

Threats to national security and border security were still included, but the February 18 guidance added non-detained aggravated felons and certain gang members to the public safety threats priority, provided they “pose[] a risk to public safety”.

Texas and Louisiana Sue. In April 2021, the states of Texas and Louisiana filed a complaint challenging the Pekoske and Tae Johnson memos, which started the instant suit, Texas v. U.S., again heard by Judge Tipton.

After taking evidence and hearing argument, on August 19, Judge Tipton issued an order enjoining the restrictions in the Pekoske and Tae Johnson memos on immigration agents in their enforcement of the immigration laws against criminal aliens.

A month later, on September 15, a three-judge panel of the Fifth Circuit limited the scope of Judge Tipton’s injunction. In its decision, the Fifth Circuit noted that new guidance would be issued by the end of September by DHS. Things then took an interesting turn, when the state plaintiffs sought a rehearing of that decision before all 17 judges of the Fifth Circuit as a whole (en banc).

On November 30, the Fifth Circuit granted that request, vacating the limitations that the three-judge panel had placed on Judge Tipton’s original injunction.

Mayorkas Memo. Between the Fifth Circuit’s first order and the appeals court agreeing to consider Judge Tipton’s original order en banc, Mayorkas issued his memo on September 30, as well as a much longer “Considerations” memo that accompanied the guidance. Given the issuance of the Mayorkas memo in the interim, the government sought, and the state plaintiffs agreed to, a dismissal of the earlier appeal.

The legal basis for that memo was that the department had “prosecutorial discretion” to tailor its enforcement actions. Depending on your view of immigration enforcement, the Mayorkas memo was better and worse — or better or worse — than its predecessors.

It contained the same three priorities for enforcement but expanded the portion focusing on threats to public safety to include aliens who have engaged in “serious criminal conduct” aside from aggravated felonies and gang crimes.

That said, it prevented ICE officers from relying “on the fact of conviction alone”, instead requiring them to also consider various irrelevant mitigating and aggravated factors before taking action.

Judge Tipton’s Latest Order. In his latest, June 10 order, Judge Tipton concluded that sections 236(c) and 241 of the INA impose mandatory duties on DHS to take criminal aliens described therein into custody, duties with which, he concluded, the Mayorkas memo is in conflict.

The Considerations memo made the limits in the Mayorkas memo binding on officers, he concluded, given that it stated “the new guidelines will require the workforce to engage in an assessment of each individual case and make a case-by-case assessment as to whether the individual poses a public safety threat, guided by a consideration of aggravating and mitigating factors” (emphasis in original in order, added in the Comparisons memo).

He further held that Mayorkas’ recourse to prosecutorial discretion not to detain those aliens contravened the language of those provisions, Supreme Court precedent, and legislative history. Finally, he concluded the state plaintiffs fell within the “zone of interests” those statutes were intended to protect.

Accordingly, he held that DHS had gone “well beyond the bounds of its statutory authority”, thereby violating the Administrative Procedure Act (APA), which governs executive branch implementation of governing statutes.

The court also concluded DHS had acted “arbitrarily and capriciously” in violation of the APA by issuing the Mayorkas memo, because it failed to properly consider the rates of recidivism and abscondment by criminal aliens, and by ignoring the fiscal costs to the states and their reliance interests in proper enforcement.

Finally, Judge Tipton concluded that the Mayorkas memo was a “legislative rule”, and therefore should have been subject to public “notice and comment” before it took effect. It wasn’t, again in violation of the APA. Accordingly, he vacated that memo.

Latest Fifth Circuit Order. The Biden administration sought a stay of Judge Tipton’s order from the Fifth Circuit, which as noted has denied that request.

The circuit court rebuffed the government’s claim that the states lacked standing to bring the matter, finding that Texas has shown it was incurring fiscal injuries related to, among other things, the costs of incarcerating criminal aliens who reoffended after DHS failed to detain and remove them and of caring for and educating aliens who were not removed.

Next, the panel determined that section 242(f)(1) of the INA — which deprives lower courts of the power to issue injunctive relief as the Supreme Court held on June 13 in Garland v. Aleman-Gonzalez, did not prevent Judge Tipton from vacating the Mayorkas memo.

Describing an injunction as a “drastic and extraordinary remedy” and drawing on the Supreme Court’s decision, the court explained that “a vacatur does nothing but re-establish the status quo absent the unlawful agency action. Apart from the constitutional or statutory basis on which the court invalidated an agency action, vacatur neither compels nor restrains further agency decision-making.”

The court also rejected DHS’s contention that the Mayorkas memo “in no way binds enforcement agents and their superiors, but ‘simply ensures that discretion is exercised in an informed way’”. It concluded, to the contrary, that the memo deprived immigration officers of discretion to arrest and detain aliens they had previously possessed.

Similarly, the circuit panel rejected the government’s argument that the Mayorkas memo merely deals with issues that are committed to DHS’s discretion by Congress under the INA, finding that the memo “does not represent a one-off enforcement decision, but rather a calculated, agency-wide rule limiting ICE officials’ abilities to enforce statutory law”.

Simply put, the relevant enforcement sections of the INA clearly define and limit the scope of DHS’s discretion, and the administration lacks authority to extend those boundaries.

Turning to those provisions, the court held that unlike the discretionary “contiguous territory” return provision in section 235(b)(2)(C) of the INA — which was the statutory basis for the Trump-era Migrant Protection Protocols (better known as “Remain in Mexico”) at issue in the Supreme Court’s recent decision in Biden v. Texas — sections 236(c) and 241(a) of the INA are mandatory provisions imposing duties on DHS.

As noted, the government contended that it has prosecutorial discretion to decide which aliens covered by sections 236(c) and 241(a) of the INA it will arrest, detain, and remove. It purported to have relied on the leading Supreme Court case on prosecutorial discretion, Castle Rock v. Gonzales, which concerned a challenge to the nonenforcement of state law that led to the deaths of three children.

The Court there held that “[t]he deep-rooted nature of law-enforcement discretion” may surpass “seemingly mandatory legislative commands”. On the basis of this decision, the administration argued discretion allowed DHS to apply those INA provisions in such a way as to best fit its limited resources.

The circuit court distinguished Castle Rock on both factual and legal grounds, finding: “DHS effectively seeks a reading of Castle Rock that would insulate agency action that in any way relates to enforcement duties, despite the plain language of the INA. Nothing in Castle Rock compels that conclusion.”

Unlike the “individualized instance of nonenforcement” at issue before the Supreme Court in that case, the circuit found, the Mayorkas memo “is an agency-wide mandate that strips from ICE agents their once-held discretion and subjects all enforcement decisions to strict oversight in express derogation of the governing statutes.”

Interestingly, the Fifth Circuit held that it was “additionally disturbed” by portions of the Considerations memo, which was published to give context and support to the one issued by the secretary.

The circuit took note of a passage in the Considerations memo, which states the guidelines in the Mayorkas memo “are essential to advancing this Administration’s stated commitment to advancing equity for all, including people of color and others who have been historically underserved, marginalized, and adversely affected by persistent poverty and inequality.”

The court concluded that the administration’s “replacement” of the statutory mandates in the INA “with concerns of equity and race is extralegal, considering that such policy concerns are plainly outside the bounds of the power conferred by the INA.”

Bitingly, the court concluded that the Considerations memo “further confirms” what the Mayorkas memo “says for itself — that it represents a disingenuous attempt on behalf of DHS to claim it acts within the bounds of federal law while practically disregarding that law.”

The court concluded that the Mayorkas memo was “arbitrary and capricious” in violation of the APA, in part because it failed to consider relevant data relating to criminal alien recidivism (including ICE’s own FY 2019 Enforcement and Removal Report), relying instead on evidence concerning the much lower general rate of alien criminality, and in part because it gave short shrift to the costs it would impose on the states, which are dependent on federal immigration enforcement.

That memo also violates the APA, the court held, because it is not simply a “policy statement”, but rather a rule that has “binding effect on agency discretion or severely restricts it” and therefore is subject to the APA’s “notice-and-comment” rulemaking requirements. DHS issued this memo without inviting public comment, which likely would have exposed its many flaws and shortcomings.

Finally, the circuit distinguished its decision from that in a similar case, Arizona v. Biden, where the Sixth Circuit in April stayed a district court order from a federal judge in Ohio that had enjoined portions of the Mayorkas memo.

The panel noted that Fifth Circuit precedent — which is not binding on its sister circuits — had “predetermined” many of its conclusions. Further, it described the record developed by Judge Tipton as “fulsome” (not surprising given that he has been at it for over a year) compared to that before the Ohio judge, which the Sixth Circuit held was “insufficient to support the states’ standing”.

The panel judges explained: “Until there is a contrary ruling from the Supreme Court, we adhere to our precedent and the facts found by the district court.”

Next Steps. Speaking of the Supreme Court, it is yet to be seen whether the Biden administration will ask the justices to stay Judge Tipton’s order (as it did — initially unsuccessfully — in Biden v. Texas).

If the administration seeks a stay from the Court, it would go initially to Justice Alito, circuit justice for the Fifth Circuit who authored a dissent in Biden v. Texas and who had previously penned precedent decisions holding — like the Fifth Circuit here — that sections 236(c) and 241(a) impose a detention mandate (albeit in a slightly different context).

That said, the other justices would get to weigh in, too, and although Justices Thomas and Gorsuch would likely join Justice Alito in denying a stay, it is not clear where Chief Justice Roberts and Justices Kavanaugh and Barrett would fall. Given the fact that a stay would simply maintain the status quo (both in the case and in the law pre-Biden), they may be willing to let the circuit’s decision ride.

In any event, the circuit will have to consider the underlying merits of Judge Tipton’s decision, and that will likely go to a different Fifth Circuit panel. As noted, one three-judge panel already limited a prior Judge Tipton order on the first two enforcement memos, but the full court vacated that decision when it agreed to consider the matter anew.

The merits of Judge Tipton’s order vacating the Mayorkas memo will likely return to the Supreme Court as soon as the next term (which starts in October). For now, however, the restrictions that memo placed on ICE officers in questioning, arresting, detaining, and removing aliens from the United States have been lifted, and the INA means what Congress intended, again. It is a victory for the rule of law and Congress’s primacy in setting immigration rules—assuming the Supreme Court allows it to stand.