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This is an appeal by the federal government of the March 22, 2022 decision of a trial court preliminarily enjoining (blocking) guidance the Biden Administration issued in September 2021 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).  The lawsuit was brought by the states of Arizona, Montana, and Ohio; they claim that the issuance of the guidance was procedurally improper and that its substance was inconsistent with immigration statutes.

Shortly after filing this appeal, the Biden Administration filed a motion requesting that the Court of Appeals stay (pause) the preliminary injunction while their appeal of it proceeds. On April 12, the Sixth Circuit granted that stay request in full, thereby pausing the lower court’s injunction while the appeal proceeds to the merits. It also expedited consideration of the merits of the appeal.

Oral argument on the appeal took place on June 10, 2022 in Cincinnati, before the same three judges who granted the stay of the preliminary injunction. On July 6, 2022, the panel issued a decision reversing the district court, holding that it erred in deciding that the States were likely to succeed in their lawsuit.  After reversing, the Sixth Circuit remanded the case to the district court for further proceedings.

Technical Summary

Arizona, Montana, and Ohio’s complaint alleges that the ICE guidance is contrary to 8 U.S.C. §§ 1226 and 1231; the Administrative Procedure Act’s notice and comment requirement and its prohibition on arbitrary and capricious agency action; and the Take Care Clause (which requires the President to “take Care that the Laws be faithfully executed”).

Judge Newman’s opinion granting a preliminary injunction held that the States were likely to succeed on their claims that the guidance is contrary to the statutory provisions cited above; their notice and comment claim; and their claim that issuance of the guidance was arbitrary and capricious because it failed to consider all relevant factors.  He did not discuss the claim under the Take Care Clause.


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