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This was an appeal of a district court’s order granting Texas and Louisiana a preliminary injunction of immigration enforcement guidance, issued in January and February 2021, that set out criteria and guidelines 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). 

When filing this appeal, the Biden Administration asked the Fifth Circuit to “stay” (pause) the district court’s order prohibiting the federal government from enforcing the ICE guidance.  After expedited briefing and oral argument, on September 15, 2021, a motions panel of the Fifth Circuit granted in part and denied in part the Biden Administration’s request.  The 3-judge panel held that the district court’s order was overbroad, and it trimmed the district court’s order somewhat. 

Thereafter, on November 30, 2021, a majority of the Fifth Circuit’s 17 judges voted to overrule the decision of the 3-judge motions panel to limit the district court’s order, restoring the preliminary injunction to its original scope.

On December 6, 2021, the Biden Administration moved to dismiss its appeal of the district court’s order in light of new ICE enforcement guidance that superseded the guidance on appeal.  Texas and Louisiana consented to that motion to dismiss, which was granted on February 11, 2022.

Technical Summary

On August 25, 2021, the motions panel granted a temporary administrative stay of the preliminary injunction while the parties briefed and argued the federal government’s motion for a stay pending appeal. 

The motions panel decision on September 15, 2021 stated that the preliminary injunction could “go  into  effect  to  the  extent it prevents DHS and ICE officials from relying on the [guidance] to refuse to  detain  aliens  described  in  1226(c)(1)  against  whom  detainers  have  been  lodged or aliens who fall under section 1231(a)(1)(A) because they have been ordered  removed,” and stayed the injunction in all other respects.  The panel stated that its “main concern” with the injunction was its interference with the Executive’s “‘broad discretion’ to decide who should face enforcement action in the first place.”

The en banc court’s November 30, 2021 opinion and order stated, in its entirety, as follows: “On a poll taken pursuant to a request by an active member of the court for rehearing en banc, a majority of active judges in service and not disqualified has determined that the panel opinion issuing a stay pending appeal should be vacated.  The appeal shall be assigned to an oral argument panel in the regular course.”


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