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This lawsuit is 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 is currently 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.

When the case was stayed, two motions were fully briefed and awaiting decision: (1) the federal government’s motion to dismiss this lawsuit in its entirety, which was fully briefed as of January 26, 2022; and (2) the sheriffs’ motion requesting that Judge Brown reconsider the February 21, 2022 Order denying the sheriffs’ motion for a preliminary injunction of the guidance issued in January and February 2021 that prompted this lawsuit (basically, the sheriffs asked the court to prohibit ICE from using the challenged guidance while the rest of the case proceeds).

As of September 2023, this case remained stayed.

Technical Summary

Plaintiffs allege 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 seek a preliminary and permanent injunction mandating compliance with Kobach’s 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.


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