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This lawsuit was on behalf of seven Texas county sheriffs and a non-profit organization, the Federal Police Foundation, that claims to have Immigration and Customs Enforcement (ICE) agents as its members.  They sued the Biden Administration over immigration enforcement guidance, issued in January and February 2021, for ICE to consider when prioritizing cases for enforcement and deportation (e.g. whether an individual is a national security or public safety threat).  The sheriffs–who were represented by Kansas Attorney General Kris Kobach until he withdrew in July 2023–claim that the issuance of the guidance was procedurally improper and that its substance is inconsistent with immigration statutes.

This case was stayed pending the Supreme Court’s resolution of USA v. Texas, which challenged similar guidance as this case. On October 24, 2022, Kobach filed a motion (on behalf of the sheriffs) with the Supreme Court requesting to intervene in USA v. Texas so that they can seek an injunction blocking the guidance challenged in that case. That motion was quickly denied.

In mid-October 2023, Judge Brown lifted the stay and ordered Plaintiffs to explain why this case should not be dismissed in light of the Supreme Court’s decision in USA v. Texas. In response, Plaintiffs conceded that the USA v. Texas decision precludes claims that seek to force the federal government to arrest or remove noncitizens, but argue that they can still bring claims to force the federal government to detain noncitizens. Texas requested leave to file a third amended complaint accordingly, which Judge Brown granted in December 2023.

 Thereafter, on January 29, 2024, Judge Brown issued an order granting the federal government’s motion to dismiss this case in its entirety, holding that in light of the Supreme Court’s USA v. Texas decision, the sheriffs in this case lack standing to challenge the immigration enforcement guidance.

Technical Summary

Plaintiffs alleged that the challenged memoranda violate mandatory detention provisions in 8 U.S.C. §§  1225(b)(2)(A), 1226(c), 1231(a); 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”). 

Beyond an injunction of the challenged guidance, the plaintiffs sought a preliminary and permanent injunction mandating compliance with their view of what is required by each of the statutory provisions cited above. 

On March 22, 2022, Judge Brown denied the federal government’s motion to transfer this case to the Western District of Texas or, in the alternative, to the Laredo Division or the Corpus Christi Division of the Southern District of Texas. The case was filed in the Galveston Division of the Southern District of Texas.

Texas’s third amended complaint alleged two claims: that the September 2021 guidance is contrary to detention mandates in 8 U.S.C. §  1225(b); and that it violates the APA’s notice and comment requirement. 


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