In April 2022, Alabama, Florida, and Georgia sued the Biden Administration over immigration enforcement guidance, issued in September 2021, that set out criteria and guidelines for Immigration and Customs Enforcement (ICE) to consider when prioritizing cases for enforcement and deportation (e.g., whether an individual is a national security or public safety threat). Alabama, Florida, and Georgia claim that the issuance of the guidance was procedurally improper and that its substance is inconsistent with immigration statutes.
In June 2021, the Biden Administration filed a motion to dismiss the lawsuit. Thereafter, the Supreme Court granted certiorari in a virtually identical case brought by Texas, and this case was stayed pending the resolution of the Texas case.
Alabama, Florida, and Georgia allege that the issuance of the guidance violated the Administrative Procedure Act because it is ultra vires, arbitrary and capricious, and should have gone through notice and comment rulemaking; and that the guidance substantively violates the detention provisions in 8 U.S.C. §§ 1226(c) and 1231(a). The States seek vacatur and an injunction of the guidance and an order compelling the federal government “to comply with §§ 1226(c) and 1231(a).”