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In November 2021, Arizona, Montana, and Ohio sued the Biden Administration regarding immigration enforcement guidance, 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 States claimed that the issuance of the guidance was procedurally improper and that its substance was inconsistent with immigration statutes.

On March 22, 2022, Judge Newman issued an opinion in which he granted the States’ motion for a nationwide preliminary injunction of the guidance (i.e., he ordered ICE not to use various provisions of the challenged guidance while the rest of the case proceeds).  In the same opinion, Judge Newman denied the Biden Administration motion to dismiss the States’ claims in their entirety. 

Previously, in December 2021, Judge Newman denied the Biden Administration’s request that this case be transferred to the District of Arizona.  That motion was based on the fact that Arizona and Montana had already filed there a very similar lawsuit—which they lost—and were plainly seeking a do-over before a more favorable judge in Ohio.

On March 28, 2022, the Biden Administration noticed an appeal of Judge Newman’s decision and requested that he stay (pause) his injunction while the appeal proceeded; Judge Newman denied that request three days later.  

On April 20, 2022, Judge Newman granted the Biden Administration’s unopposed request to stay (pause) proceedings before him during the appeal. A few months later, he extended the stay until the Supreme Court issues an opinion in USA v. Texas, which involves the same subject as this case.

The Supreme Court decided USA v. Texas in late June 2023; Arizona voluntarily dismissed this case a few days later.

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.

Judge Newman’s opinion denying the federal government’s motion to transfer the case reasoned that the policies challenged in this case and the previously filed Arizona case were “sufficiently different,” and that “[a]dding Ohio to this litigation renders the interests at stake distinct from the Arizona case.”


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