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In early 2021, Arizona and Montana sued the Biden Administration regarding 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 also challenged the Biden administration’s partial deportation moratorium, which was designed to pause most deportations for 100 days to allow the Biden administration to issue new enforcement guidance. Arizona and Montana claimed that the issuance of the moratorium and guidance were procedurally improper and that their substance was inconsistent with an immigration statute.

Shortly after filing suit, Arizona and Montana moved for a preliminary injunction of the moratorium and guidance (i.e., they requested that the court block the moratorium and prohibit ICE from using the challenged guidance while the rest of the case proceeds).  The Biden Administration cross-moved to dismiss the States’ claims in their entirety.    

The request to block the partial deportation moratorium was denied as moot in April 2021, in light of the injunction issued in a case brought by Texas

On June 30, 2021, Judge Bolton issued an opinion denying the States’ request to block the enforcement guidance and granted the Biden Administration’s request to dismiss the claims, ruling that the guidance is unreviewable.

Judge Bolton’s opinion and order dismissing this case was appealed, but that appeal was dismissed as moot in January 2022.

Technical Summary

 Arizona and Montana claimed that the partial deportation moratorium and 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 highly unusual “agreements” the Trump Administration made with Arizona and Montana just before President Biden was inaugurated.

In addition to denying as moot the request to preliminarily enjoin the deportation moratorium, Judge Bolton’s April 8, 2021 text order also ordered supplemental briefing and authorized limited discovery on standing and irreparable harm.

Judge Bolton’s June 30, 2021 opinion granting the government’s motion to dismiss was based on her conclusion that the substance of the ICE guidance was committed to agency discretion by law and therefore unreviewable under the APA.

In April 2023, the Ninth Circuit panel who dismissed the appeal as moot granted Arizona’s unopposed request to vacate Judge Bolton’s opinions dated June 30, 2021 and August 12, 2021. See United States v. Munsingwear, Inc., 340 U.S. 36 (1950).


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