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This is an appeal of a district court’s final judgment granting Texas and Louisiana’s request to vacate (void) immigration enforcement guidance issued in September 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).  The district court held that the guidance conflicts with two immigration statutes and did not adhere to required procedures.

The district court’s order vacating the challenged guidance went into effect on June 25, 2022. Prior to that happening, the Biden Administration requested that the Fifth Circuit stay (pause) of the district court’s order while this appeal proceeds; that request was fully briefed as of June 23, but the Fifth Circuit did not rule on it before the lower court order went into effect.  On July 6, 2022, the Fifth Circuit issued an opinion denying the Biden Administration’s stay request.

After the Supreme Court granted the Biden Administration’s request to review the lower court decisions in this case, the Fifth Circuit stayed this appeal. The Supreme Court ultimately reversed, in June 2023. Thereafter, the Biden Administration dismissed whatever remained of this appeal.

Technical Summary

The district court (Judge Tipton) vacated the September 2021 guidance 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 denied the States’ request for an injunction.


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