On June 10, 2022, in a 96-page decision, a federal judge in the Southern District of Texas vacated the Sept. 30, 2021, memorandum, “Guidelines for the Enforcement of Civil Immigration Law” (Memo), issued by Department of Homeland Security Secretary Alejandro Mayorkas. The court found that the Memo operates as a rule regarding the detention of noncitizens and was issued contrary to two mandatory detention statutes: INA § 236(c) and INA § 241(a)(2). The court also concluded that the Memo violates the Administrative Procedure Act (APA) and must be vacated.

The court first outlined the statutes at issue in this case. INA § 236(c) mandates detention of certain noncitizens inadmissible under INA § 212(a)(2) or deportable under INA § 237(a)(2) who have committed or been convicted of certain crimes. It also mandates detention in cases where a noncitizen is removable for having engaged in terrorist activities under INA § 212(a)(3) or INA § 237(a)(4). INA § 241(a)(2) mandates the detention of certain noncitizens with final orders of removal. It should be noted, however, that while the court focused on these detention statutes, the Memo provides guidance on officers’ discretion in decisions relating only to the “apprehension and removal of noncitizens;” it is silent on the topic of officers’ discretion to detain noncitizens.

In reaching its conclusion, the court made several findings of fact. The court found that the number of detentions and removals under the current administration has dropped sharply and noted that the government had requested a reduction in its enforcement budget from Congress and has been “underutilizing” the resources it has received. However, the court ignored data indicating that enforcement numbers have been declining since well before the current administration. Indeed, the declines are likely at least partially attributable to the previous administration’s implementation of the Migrant Protection Protocols and Title 42, both of which prevent noncitizens from crossing the border and thus do not necessitate apprehensions or detention. Nevertheless, the court found that this perceived reduction in enforcement has increased the financial burdens the plaintiff states of Texas and Louisiana incurred when they detain, educate, and provide healthcare to those noncitizens who would otherwise be detained by DHS. The court drew specific conclusions regarding noncitizens with convictions from data relating to the education and healthcare of all undocumented individuals.

The court then determined that the Memo acts as a final, binding rule on DHS as a whole, rather than a single enforcement decision by an individual DHS officer. The rule is binding, the court said, because of its language mandating officers to engage in an analysis of aggravating and mitigating factors rather than allowing them discretion to detain based simply on the noncitizen’s having a conviction. The procedure officers must follow, the court said, disallows officers from simply citing a noncitizen’s conviction as the determinative factor in their enforcement decisions; rather, they must indicate all the aggravating and mitigating factors being considered. The court also found that the Memo creates a process for noncitizens to challenge officers’ decisions, which the court said was further evidence that the Memo acts as a “rule” that is binding on DHS.

When considering whether the Memo falls within an area of the law committed to agency discretion, the court found that it does not, given the mandatory language written by Congress in INA § 236(c) and INA § 241(a)(2). In doing so, the court looked at use of the word “shall” in both statutes, particularly in contrast with other sections of the statute that use more permissive language. The court also noted that mandatory detention under the two statues is time-limited, meaning that any discretion otherwise available to officers must “yield to” the mandate within such a window.

The court then cited several Supreme Court cases as precedent for its finding that the language of INA § 236(c) and INA § 241(a)(2) are mandatory, including Johnson v. Guzman Chavez, 141 S. Ct. 2271, 2281 (2021). The court distinguished the Supreme Court case Town of Castle Rock v. Gonzales, 545 U.S. 748, 760–61 (2005) on the grounds that it did not involve an agency-wide rule, but rather individual enforcement decisions made by officers.

Legislative history, the court found, also supports a mandatory reading of INA § 236(c) and INA § 241(a)(2). It found that Congress allowed for an initial “grace period” after the statutes were enacted and then denied the government an extension of that grace period. In addition, the statute was enacted, the court stated, under a backdrop of a crime wave in the United States and the former Immigration and Naturalization Service’s “failure to detain” noncitizens during that wave.

Given its findings and analysis, the court then ruled in favor of the state plaintiffs on each of their claims under the APA. It found that the Memo was contrary to law, failed to consider recidivism, abscondment, and the states’ reliance on previous enforcement policies, and failed to comply with the APA’s notice and comment requirements.

The court found that, because the Memo was contrary to law, arbitrary and capricious, and promulgated without adequate notice and comment, the only remedy was to vacate the Memo in its entirety. The court stayed its decision until June 24, 2022, to give the government time to appeal.

The Department of Justice (DOJ), which represents the federal government’s interests in this suit, has filed an appeal of the decision with the Fifth Circuit. However, the Fifth Circuit has allowed the temporary stay of the district court’s order to expire; therefore, the Memo has been vacated. This means that DHS officers will no longer be able to rely on the Memo as guidance for their individual apprehension and detention decisions. This is despite the fact that the agency has a decades-long history of relying on such memoranda, which only recently began facing challenges from state plaintiffs opposing them. It is unclear what DHS will do should the Fifth Circuit ultimately uphold the district court’s decision in this case. On the other hand, in March 2022, the Sixth Circuit came to the opposite conclusion on nearly every issue in this case. The court in that decision found: “[Immigration] officials, as an initial matter, must decide whether it makes sense to pursue removal at all. There are various stages in the deportation process, and [a]t each stage the Executive has discretion to abandon the endeavor.” State of AZ et al. v. Joseph R. Biden et al., No. 22-3272 (6th Cir. 2022) (order granting motion for stay)(quotations omitted). It is also unclear whether the administration will seek any further review should a circuit split arise.

Guidance issued by ICE, ICE Office of the Principal Legal Advisor, and U.S. Citizenship and Immigration Services in reliance on the Memo also appear to be in jeopardy with the vacatur of the Memo. This includes the April 3, 2022 “Guidance to OPLA Attorneys Regarding the Enforcement of Civil Immigration Laws and the Exercise of Prosecutorial Discretion,” issued by Principal Legal Advisor Kerry Doyle (Doyle Memo). Practitioners across jurisdictions are reporting that, as of this week, OPLA attorneys are no longer relying on the Doyle Memo in response to prosecutorial discretion requests submitted by respondents in removal proceedings.

Despite the loss of agency-wide guidance, however, practitioners should remember that officers maintain the ability to exercise prosecutorial discretion in individual cases. (See the District Court Order at page 3: “[T]he Executive Branch has case-by-case discretion to abandon immigration enforcement as to a particular individual.”). Practitioners are therefore encouraged to continue to advocate for prosecutorial discretion with ICE (both ERO and OPLA) as zealously as possible to protect their clients’ interests. Requests should show how positive equities outweigh any adverse factors present in a case but should not cite to the Memo in making their requests. Advocates should be prepared, however, for a delay in decisions and hesitancy on the part of officers and trial attorneys in the absence of any agency-wide guidance. Finally, practitioners should continue to monitor this case. CLINIC will issue further updates as they become available.