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In April 2021, Texas and Louisiana sued the Biden Administration over immigration enforcement guidance 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).  Texas and Louisiana claimed that the issuance of the guidance was procedurally improper and that its substance is inconsistent with immigration statutes

On August 19, 2021, Judge Tipton granted a motion by Texas and Louisiana for a preliminary injunction of the ICE guidance, ordering the federal government not to enforce portions of the guidance. That decision is on appeal.

On September 30, 2021, the federal government issued a new set of ICE enforcement guidelines.  Texas and Louisiana then amended their lawsuit to challenge this new guidance (on the same grounds) as well.  

Following a two-day bench trial, Judge Tipton entered final judgment for Texas on June 10, 2022.  In the accompanying opinion, Judge Titpon explained his conclusion that the challenged guidance conflicts with two immigration statutes that purportedly require the detention of certain noncitizens, as well as his conclusion that the guidance did not adhere to required procedures. Judge Tipton granted Texas and Louisiana’s request to vacate (void) the September 2021 guidance, but he denied their request to issue an injunction requiring DHS to mandatorily detain certain noncitizens. The Biden Administration promptly appealed Judge Tipton’s decision to the Fifth Circuit Court of Appeals.

Judge Tipton’s vacatur of the guidance was stayed (paused) until June 24 to permit the Biden Administration to seek a more permanent stay from the Fifth Circuit. The Biden Administration timely sought such a stay, but the Fifth Circuit did not rule on that request prior to June 24 (and in fact still has not resolved that motion as of the end of June) and therefore the vacatur went into effect.

Technical Summary

 Texas and Louisiana allege: that the issuance of the ICE guidance violated the Administrative Procedure Act because it was arbitrary and capricious, should have gone through notice and comment rulemaking, and violated a previously secret “agreement” the Trump Administration made with Louisiana just before President Biden was inaugurated; that the guidance substantively violates the mandatory detention provisions in 8 U.S.C. §§ 1226(c) and 1231(a)(2); and that the guidance violates the Take Care Clause.

Judge Tipton’s vacatur of the September 2021 guidance was based on three APA claims.  Judge Tipton concluded that the guidance (1) “flatly contradicts detention mandates under Sections 1226(c) and 1231(a)(2),” and is therefore contrary to law; (2) was issued in an arbitrary and capricious manner due to the failure to consider “recidivism and abscondment,” the costs to the States, or the States’ purported reliance interests on mandatory detention; and (3) should have (but did not) go through notice and comment rulemaking.  Judge Tipton held that Louisiana failed to prove that its “agreement” with the Trump Administration was valid (and so entered judgment on it to Defendants).  He declined to reach the Take Care claim.


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