Texas Sheriffs, ICE Officers, Ask SCOTUS to Hear Objections to Mayorkas Non-Enforcement Memo

And a quick recap of a really important pending case

By Andrew R. Arthur on October 27, 2022

A coalition consisting of a group of Texas sheriffs and counties and an organization representing ICE officers asked the Supreme Court last week to allow it to intervene in U.S. v. Texas, an action brought by plaintiff states seeking to vacate a September 30, 2021, memo issued by DHS Secretary Alejandro Mayorkas that places undue restrictions on immigration enforcement. Whether the Court grants that request is to be seen, but the coalition raises important points — and their move could compel the administration to enforce the immigration laws.

Mayorkas Memo. Through the issuance of three separate memos — the first issued directly after President Biden was sworn in — the administration has attempted to constrain the ability of U.S. immigration officers to investigate, question, arrest, detain, prosecute, and remove aliens in the United States (collectively known as “enforcement action”).

At issue in Texas is the latest memo, the one issued by DHS Secretary Alejandro Mayorkas on September 30, 2021, and captioned “Guidelines for the Enforcement of Civil Immigration Law” (Mayorkas memo).

Building upon and refining the two preceding guidance memos, the Mayorkas memo “prioritizes” three classes of aliens for enforcement action: 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 “serious criminal conduct” (threats to public safety).

While not as restrictive in its scope as the prior two Biden administration memos, the Mayorkas memo requires immigration authorities (primarily but not exclusively ICE officers and attorneys) to consider so-called “aggravating” and “mitigating” factors that “militate” in favor of or against (respectively) the taking of enforcement action against facially removable aliens.

The Immigration and Nationality Act and Prosecutorial Discretion. The statutory basis for almost all immigration enforcement is the Immigration and Nationality Act (INA), which was originally passed in 1952 and which has been amended more than 100 times since.

As the Supreme Court explained in 1954:

Policies pertaining to the entry of aliens and their right to remain here are peculiarly concerned with the political conduct of government. In the enforcement of these policies, the Executive Branch of the Government must respect the procedural safeguards of due process. But that the formulation of these policies is entrusted exclusively to Congress has become about as firmly imbedded in the legislative and judicial tissues of our body politic as any aspect of our government.

Notably, Congress did not direct DHS to consider any of the aggravating or mitigating factors set forth in the Mayorkas memo in the INA. That said, the executive branch retains “prosecutorial discretion” to determine which aliens will be removed. “Prosecutorial discretion” was described as the “foundational principle” of the Mayorkas memo, but as lower court decisions in Texas have suggested, there’s probably a limit to how far that authority goes.

The Timeline in Texas. Texas was a suit originally filed in April 2021 by the states of Texas and Louisiana against DHS to block the restrictions in the first two memos the Biden administration issued to place restrictions on ICE enforcement: A January 20, 2021, memo from then-Acting DHS Secretary David Pekoske (Pekoske memo); and a February 18, 2021, memo from Acting ICE Director Tae Johnson (Tae Johnson memo).

That case was assigned to Judge Drew Tipton of the U.S. District Court for the Southern District of Texas. After hearing those claims and the administration’s response, on August 19, 2021, Judge Tipton blocked the restrictions on immigration enforcement actions in those two memos.

Mandatory Duties Under the INA. According to the court, the restrictions on immigration enforcement actions in those two memos flew in the face of the department’s mandatory duties under two separate immigration statutes.

The first is section 236(c) of the INA. That provision requires DHS to “take into custody” — and hold — every alien inadmissible on criminal grounds in section 212(a)(2) of the INA and most aliens deportable on similar grounds in section 237(a)(2) of the INA, as soon as they are released from incarceration for their crimes.

The second statute is section 241(a)(2) of the INA. It requires DHS to (1) remove every alien under a final order of removal in 90 days; (2) detain those aliens pending removal; and (3) “[u]nder no circumstance” release the ones removable on criminal grounds.

As Judge Tipton recognized, those statutes contain mandates with which the Biden administration must comply. He found, however, that the restrictions it had imposed on ICE officers were openly flouting those statutory mandates.

Accordingly, he enjoined the administration from enforcing the provisions in the Pekoske and Tae Johnson memos that had restrained ICE officers from questioning, arresting, and detaining the aliens described in those sections of the INA.

The court stayed that injunction to give DOJ the opportunity to appeal, which it did to the U.S. Court of Appeals for the Fifth Circuit.

Initial Fifth Circuit Order. That appeal was assigned to a three-judge panel of the circuit court. On September 15, the panel issued its decision, concluding that, notwithstanding the mandatory language in the two INA provisions, Congress did not intend to limit immigration officials’ prosecutorial discretion, that is, “to decide who should face enforcement action in the first place”.

Because of that, the panel concluded that ICE was only required under section 236(c) of the INA to detain “prisoners with qualifying convictions against whom ICE has lodged a detainer”, and under section 241(a)(2) of the INA to detain aliens subject to removal orders.

With respect to all other criminal aliens, the court held, the Biden administration had discretion to direct its ICE officers to take enforcement action, or not.

Full Fifth Circuit Review, and Dismissal. The state plaintiffs asked the full Fifth Circuit to review that decision en banc, that is with all the circuit judges considering the matter. That request was granted on November 30, and in its order the court vacated the circuit panel’s decision.

By that point, the Mayorkas memo had been issued, and so the administration asked the circuit court to dismiss its appeal. The state plaintiffs agreed to dismissal, sending the case back to Judge Tipton.

Supreme Court Opinion Barring Injunctions. On June 13, the Supreme Court issued an opinion in Garland v. Aleman Gonzalez and Garland v. Flores Tejada, combined matters involving class action injunctive relief in federal district courts in California and Washington, respectively.

At issue was whether those courts properly granted that relief, but in its opinion, the Court held that a “court-stripping” provision in section 242(f)(1) of the INA barred lower courts (including the district and circuit courts, but not the Supreme Court) from enjoining federal court actions taken under sections 231 to 244A of the INA — which of course includes the sections of the INA at issue in Texas.

Judge Tipton’s Second Order. On June 10, three days before that Supreme Court decision was issued, Judge Tipton issued his latest order in Texas. In that order, Judge Tipton again 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.

He held that DHS in the Mayorkas memo had gone “well beyond the bounds of its statutory authority”, 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.

Likely reading the writing on the wall from the oral arguments in Aleman Gonzalez, Judge Tipton did not enjoin the Mayorkas memo, but rather he vacated it — an important point in the coalition’s request to intervene.

Fifth Circuit and Supreme Court Deny Stays. The administration asked the Fifth Circuit to stay Judge Tipton’s order, a request it denied on June 6. That triggered a race to the Supreme Court, where again DOJ requested a stay of Judge Tipton’s order.

On July 21, the Court denied that stay, but the Court granted the government’s request for certiorari before judgment, bypassing circuit court appeal of Judge Tipton’s order so that the justices could hear the case directly in December.

Issues Before the Court. The Supreme Court will consider three questions presented in Texas: (1) Whether the states have standing to challenge the Mayorkas memo; (2) whether that memo violates sections 236(c) and 241(a) of the INA; and (3) whether section 241(f)(1) of the INA allows the district court to vacate that memo under the APA.

Coe v. Biden and the Coalition’s Request. To take a step back, in July 2021 the coalition — a group of Texas sheriffs, their counties, and the Federal Police Foundation (which represents ICE officers) filed a complaint in federal court in the Southern District of Texas in Coe v. Biden, seeking an injunction of the Pekoske and Tae Johnson memos.

In addition to alleging that those memos contravened the detention mandates in sections 236(c) and 241(a) of the INA, the plaintiffs in Coe alleged that the Biden administration’s policy of releasing arriving aliens encountered by CBP at the border — including illegal entrants — violated detention mandates in section 235(b)(2)(A).

A preliminary injunction in Coe was denied on February 21, and while a motion for reconsideration of that denial was pending, the district court stayed reconsideration on July 14 while the Supreme Court was mulling over Texas.

That coalition of plaintiffs now seeks to intervene in Texas to enjoin — not just vacate — the Mayorkas memo, which is not a remedy the state plaintiffs are seeking in that case. As noted, the Supreme Court held in Aleman Gonzalez that lower courts are barred under section 242(f)(1) of the INA from enjoining actions taken under certain provisions of the INA, but that bar does not apply to the Supreme Court itself.

The coalition alleges that unless they can intervene in Texas they would “be precluded from obtaining adequate or meaningful relief”, i.e., an injunction barring DHS “from adopting enforcement policies that gratuitously frustrate, and at times outright annul, statutory enforcement provisions”.

Why is the coalition seeking an injunction in lieu of an order vacating the Mayorkas memo?

Their motion for leave to intervene explains that even if the Supreme Court were to uphold the district court order vacating the Mayorkas memo under the APA, that action would not fully remedy the injuries they allege (which are based on costs related to arresting and incarcerating criminal aliens, including recidivists), because the administration would “remain free to proceed with the same or similar non-enforcement practices on an ad hoc basis in the future”.

In that vein, they also assert that vacating the Mayorkas memo would “not ensure future compliance with statutory immigration law enforcement provisions”.

A Lot on the Line. There is a lot on the line, not only in Texas itself but in the coalition’s request to intervene in that case.

The Court publishes the “questions presented” by each case it accepts on certiorari, and rarely if ever rules on issues not directly related to those questions. If the coalition is allowed to intervene, the justices will have to expand the issues it will consider — which could call the Biden administration’s whole non-enforcement scheme into question.

The coalition’s motion is a longshot, but one which they seem willing to bet on. For the sheriffs and counties, the administration’s enforcement restrictions force it to deal with additional alien criminality, much of it directly related to the border. The ICE officers, on the other hand, are torn between their oaths to enforce the law and their duty to follow administrative policy directives. Stay tuned, because as we head into the late fall, Texas is just heating up.