This was an appeal by the States of Arizona and Montana of a district court order dismissing their claims against immigration enforcement guidance, issued in January and February 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). Arizona and Montana claimed that the issuance of the guidance was procedurally improper and that its substance is inconsistent with an immigration statute. On June 30, 2021, the district court granted the Biden Administration’s motion to dismiss the lawsuit. This appeal followed.
Shortly after filing this appeal, Arizona and Montana requested that the Ninth Circuit preliminarily enjoin (block) the challenged guidance until the appeal was fully resolved. On July 30, 2021, a 3-judge panel denied that request. The States nonetheless renewed that request, and approximately a month later, a different 3-judge panel denied the renewed motion.
In September 2021, the Biden Administration issued new ICE guidance that superseded the guidance Arizona and Montana challenged here. On January 21, 2022, a third 3-judge panel dismissed this case as moot. Thereafter, Arizona was granted an extension of time until July 15, 2022 (i.e., after the Supreme Court is expected to issue an opinion in the Texas “Remain in Mexico” case, which involves related issues) to file a request that the Court of Appeals reconsider dismissing Arizona’s appeal.
Arizona and Montana claimed that the ICE guidance violated 8 U.S.C. § 1231; the Administrative Procedure Act’s notice and comment requirement and its prohibition on arbitrary and capricious agency action; and previously secret “agreements” the Trump Administration made with Arizona and Montana just before President Biden was inaugurated
The July 30, 2021 order denying Arizona and Montana’s motion for an injunction pending appeal was explicitly without prejudice to renewal after the district court resolved the then-pending motion for reconsideration.