States’ Challenge to Secretary of Homeland Security Guidance To Deputies Probably Lacking In Standing, Holds Sixth Circuit

In Arizona v. Biden, No. 22-3272 (6th Cir. Apr. 12, 2022), the Sixth Circuit stays pending appeal a nationwide preliminary injunction of a federal memorandum of “immigration enforcement priorities and policies” concerning “arrest, detention, and removal decisions.”

“Congress has tasked the Secretary of Homeland Security, currently Alejandro Mayorkas, with establishing ‘national immigration enforcement policies and priorities.’ 6 U.S.C. § 202(5). On September 30, 2021, the Secretary exercised this power by issuing “Guidelines for the Enforcement of Civil Immigration Law” [the Guidance] . . . Noting that the Department lacks the resources to apprehend and remove every one of the more than 11 million removable noncitizens in the country, the Secretary explained that the agency would ‘prioritize for apprehension and removal noncitizens’ who fit within three categories: threats to ‘our national security, public safety, and border security’  . . . [T]he Guidance lists a number of aggravating and mitigating factors that immigration officers should consider” in making these decisions.

Before the Guidance took effect, three states sued the federal government and moved for a preliminary injunction. They allege that the Guidance violates the Administrative Procedure Act (APA) “on the grounds that it is contrary to law, is arbitrary or capricious, and should have been subjected to notice and comment. The legal centerpiece of their claim is that the Guidance fails to honor 8 U.S.C. § 1226(c), which requires the Department to take custody of certain criminal noncitizens—those convicted of terrorist activities, aggravated felonies, firearm offenses, drug crimes, and crimes of moral turpitude—when they are released from state or federal prison, and 8 U.S.C. § 1231(a), which requires the Department to remove noncitizens within 90 days of receiving final orders of removal.”

As a source of standing, “the three States claim, has led to fewer detainers and removals, meaning individuals are being released from state custody into their communities and imposing costs and burdens on them: additional costs to pay for medical and educational services and additional law-enforcement burdens given the risks of recidivism.”

The district court granted the preliminary injunction, but in a published order signed by Chief Judge Sutton, the Sixth Circuit stays it. Substantially, the panel finds no likelihood of success.

First, the panel finds the states lacking in standing, finding the alleged injuries at best speculative. “[S]tart with the reality that the Guidance does not directly injure the States. It does not regulate the States by telling them what they can or cannot do in their jurisdiction. And it does not purport to preempt any state or local law, whether criminal or otherwise. State criminal sentences, for example, may be as long as each State wishes. The Guidance merely tells federal employees what to prioritize in enforcing a federal law over which the Supreme Court has said that the National Government has considerable, indeed often exclusive, authority.”

Moreover, it is hypothetical whether following the Guidance will lead to fewer arrests or net harm to the states. “Even the premise that the Guidance has coincided with a fall in immigration enforcement overall does not lead to the conclusion that the Guidance is the culprit, let alone the challenged portion of the Guidance. Other explanations exist. The National Government’s main enforcement authority affecting noncitizens within a State after all has little to do with detention and removal decisions at the back end. It has to do with prosecutorial discretion at the front end when immigration agents and law enforcement decide whom to arrest and whom not to.”

While the states contended that standing requirements were looser for states as litigants, citing Massachusetts v. EPA, 549 U.S. 497 (2007) “that does not allow them to bypass proof of injury in particular or Article III in general . . . Their main objection is to indirect fiscal burdens allegedly flowing from the Guidance. But why would that humdrum feature of a regulation count as a uniquely sovereign harm? Most regulations have costs. A State has no more reason to fear harms to its bottom line from federal regulations than a person or a business does . . . . Are we really going to say that any federal regulation of individuals through a policy statement that imposes peripheral costs on a State creates a cognizable Article III injury for the State to vindicate in federal court?”

On the merits, the panel also doubts that a policy statement such as the Guidance is reviewable under the APA. “Consistent with its label, the Guidance couches its instructions on lots of conditional language that preserves officials’ discretion. The document provides a “not exhaustive” list of factors as ‘example[s]’ of what officials should consider . . . . It allows officials to make decisions ‘depending on the facts’ . . . . It cautions that it ‘does not compel an action to be taken or not taken’ but ‘leaves the exercise of prosecutorial discretion to the[ir] judgment’” . . . . This has the telltale signs of a non-binding policy statement, not of reviewable agency action.” Even if it were reviewable, the challenge will most likely fail on all three prongs advanced by the states (contrary to law, arbitrary or capricious, and lacking in notice and comment).

Finally, the panel notes that a stay is warranted on the other traditional elements as well. “The preliminary injunction likely causes irreparable harm to the Department by interfering with its authority to exercise enforcement discretion and allocate resources toward this administration’s priorities. A stay pending appeal should not substantially injure the three States. Yes, if they are right, the Guidance may impose costs on them that are difficult to recover. But the extent of those costs is filled with ifs and maybes, particularly given the reality that the States concede that the relevant federal statutes do not tell the Department how to deploy its resources, do not stop it from setting prioritization categories, and do not prevent it from sending its enforcement agents wherever it wishes. If federal law permits all of that, it is hard to see how lifting the injunction pending appeal will result in substantial and distinct injuries to the three States. In view of our doubts about the States’ claims under the Administrative Procedure Act, the public interest favors a stay.”

Chief Judge Sutton adds a separate concurrence expressing doubts about the lawfulness of a nationwide injunction emanating from a single district court under Article III (failing to meet the “case or controversy” standard) or traditional equitable powers to bind non-parties to a decision. “[N]ationwide injunctions have not been good for the rule of law. Left unchecked, such nationwide injunctions have become a springing easement on the customary deliberative process for dealing with issues of national importance. The sooner they are confined to discrete settings or eliminated root and branch the better.”

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