Fifth Circuit Denies Stay of Order Vacating Mayorkas' Enforcement Restrictions

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

• 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).
• 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
• 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.

Biden Administration's First Attempts to Roll Back Congress' Mandates

• 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
• 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, and aliens convicted of aggravated felonies and released from incarceration
• 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).

Texas and Louisiana Sue

• In April 2021, the states of Texas filed a complaint challenging the Pekoske and Tae Johnson memos, which started the Texas v. U.S. lawsuit.
• On August 19, Judge Tipton issued an order enjoining the restrictions in the memos on immigration agents in their enforcement of the immigration laws against criminal aliens
• A month later, a three-judge panel of the Fifth Circuit limited the scope of the injunction, noting that new guidance would be issued by DHS by the end of September
• The Mayorkas Memo
• 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

Judge Tipton’s Latest Order

• In his June 10 order, Tiptson 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 the Mayorkas memo is in conflict.
• 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, 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.

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 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.

Section 242(f)(1) of the INA - which deprives lower courts of the power to issue injunctive relief - 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 Fifth Circuit found that the Mayorkas memo deprived immigration officers of discretion to arrest and detain aliens they had previously possessed

• 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.
• Similarly, the circuit panel rejected the government's argument that it has prosecutorial discretion to decide which aliens covered by sections 236(c) and 241(a) of INA it will arrest, detain, and remove.

Next Steps

• 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.

 

https://cis.org/Arthur/Fifth-Circuit-Denies-Stay-Order-Vacating-Mayorkas-Enforcement-Restrictions