Arizona v. Biden

31 F.4th 469

State of ARIZONA; State of Montana; State of Ohio, Plaintiffs-Appellees,

v.Joseph R. BIDEN, in his official capacity as President of the United States; United States Department of Homeland Security; United States of America; Alejandro Mayorkas, in his official capacity as Secretary of Department of Homeland Security; Troy Miller, in his official capacity as Acting Commissioner of United States Customs and Border Protection; Tae D. Johnson, in his official capacity as Acting Director of United States Immigration and Customs Enforcement; Ur Jaddou, in her official capacity as Director of U.S. Citizenship and Immigration Services, Defendants-Appellants.

No. 22-3272

United States Court of Appeals, Sixth Circuit.

Argued: April 7, 2022

Decided and Filed: April 12, 2022

ARGUED: Michael Shih, UNITED STATES DEPARTMENT OF JUSTICE, Washington, D.C., for Appellants. Sylvia May Mailman, OFFICE OF THE OHIO ATTORNEY GENERAL, Columbus, Ohio, for Appellees. ON MOTION FOR STAY AND REPLY: Michael Shih, Sean R. Janda, UNITED STATES DEPARTMENT OF JUSTICE, Washington, D.C., for Appellants. ON RESPONSE: Sylvia May Mailman, Benjamin M. Flowers, OFFICE OF THE OHIO ATTORNEY GENERAL, Columbus, Ohio, Drew Curtis Ensign, OFFICE OF THE ARIZONA ATTORNEY GENERAL, Phoenix, Arizona, Christian B. Corrigan, OFFICE OF THE MONTANA ATTORNEY GENERAL, Helena, Montana, for Appellees.

Before: SUTTON, Chief Judge; MOORE and COLE, Circuit Judges.

SUTTON, C.J., (pp. 472–83; app. 485–87), delivered the order of the court in which MOORE and COLE, JJ., joined. SUTTON, C.J. (pp. 483–85), also delivered a separate concurring opinion.

ORDER

SUTTON, Chief Judge.

Last fall, the Secretary of Homeland Security issued a memorandum to his deputies outlining the Department's immigration enforcement priorities and policies. Arizona, Montana, and Ohio filed this lawsuit in the Southern District of Ohio to enjoin its implementation. The district court issued a "nationwide preliminary injunction," applicable to all 50 States, blocking the Department from relying on the priorities and policies in the memorandum in making certain arrest, detention, and removal decisions. The National Government asks for a stay pending appeal. For the reasons that follow, we grant the stay.

I.

Federal law gives the National Government considerable authority over immigration policy. Consistent with its powers under the U.S. Constitution, U.S. Const. art. I, § 8, cl. 4, Congress has enacted several statutes with respect to detention and removal.

As to detention, the Department of Homeland Security "shall take into custody" those "criminal aliens" who are inadmissible or deportable by reason of their having committed certain crimes—including aggravated felonies, firearm offenses, drug crimes, and crimes of moral turpitude—or their having been involved in terrorist activities. 8 U.S.C. § 1226(c)(1). Removable individuals often are in state custody after a state-law conviction. In such cases, the Department issues a "detainer," a notice to the State that it intends to take custody of the noncitizens upon their release from state custody. 8 C.F.R. §§ 287.7(a), 287.7(d) ; Immigration and Customs Enforcement Policy No. 10074.2 ¶¶ 2.4–2.6. The State then informs the Department of the noncitizens' release date and holds them for up to forty-eight hours to allow the Department to take custody. 8 C.F.R. §§ 287.7(a), 287.7(d). In other cases, the Department has discretion to have "an alien ... arrested and detained pending a decision on whether the alien is to be removed from the United States," and even when it decides to do so, it retains discretion to release the individual with certain conditions. 8 U.S.C. § 1226(a).

As to removal, Congress has provided that, "when an alien is ordered removed," the Department "shall remove the alien from the United States within a period of 90 days," except in specified circumstances. Id. § 1231(a)(1)(A). If, however, removal cannot be accomplished within the removal period, continued detention is not required, and the Department has discretion to release noncitizens under supervision. Id. § 1231(a)(3).

Congress has tasked the Secretary of Homeland Security, currently Alejandro Mayorkas, with establishing "national immigration enforcement policies and priorities." 6 U.S.C. § 202(5). On September 30, 2021, the Secretary exercised this power by issuing "Guidelines for the Enforcement of Civil Immigration Law." R.4-1 at 1. Noting that the Department lacks the resources to apprehend and remove every one of the more than 11 million removable noncitizens in the country, the Secretary explained that the agency would "prioritize for apprehension and removal noncitizens" who fit within three categories: threats to "our national security, public safety, and border security." Id. at 2–3. "Whether a noncitizen poses a current threat to public safety," the Guidance says, "is not to be determined according to bright lines or categories," but "requires an assessment of the individual and the totality of the facts and circumstances." Id. at 3. To that end, the Guidance lists a number of aggravating and mitigating factors that immigration officers should consider. Aggravators include the gravity and sophistication of the offense, its degree of harm, whether it involved the use of a dangerous weapon, and whether the noncitizen has a serious criminal record. Mitigators include advanced age or youth, lengthy presence in the United States, conditions requiring care or treatment, and the impact of removal on family in the United States. The Guidance cautions that the memo does not "compel an action to be taken or not taken," "leaves the exercise of prosecutorial discretion to the judgment of our personnel," and "is not intended to, does not, and may not be relied upon to create any right or benefit." Id. at 5, 7.

On November 18, 2021, eleven days before the Guidance took effect, two States from the Ninth Circuit (Arizona and Montana) and one State from the Sixth Circuit (Ohio) filed this action against the United States, the President, the Secretary, the Department, and other Homeland Security officials (collectively, the Department or the National Government). They filed the complaint in the Southern District of Ohio. Soon after filing the complaint, they requested a preliminary injunction to prevent the Department from implementing the Guidance. From where the claimants stand, the Guidance violates the Administrative Procedure Act on the grounds that it is contrary to law, is arbitrary or capricious, and should have been subjected to notice and comment. The legal centerpiece of their claim is that the Guidance fails to honor 8 U.S.C. § 1226(c), which requires the Department to take custody of certain criminal noncitizens—those convicted of terrorist activities, aggravated felonies, firearm offenses, drug crimes, and crimes of moral turpitude—when they are released from state or federal prison, and 8 U.S.C. § 1231(a), which requires the Department to remove noncitizens within 90 days of receiving final orders of removal. Failure to respect the requirements of the two statutes, the three States claim, has led to fewer detainers and removals, meaning individuals are being released from state custody into their communities and imposing costs and burdens on them: additional costs to pay for medical and educational services and additional law-enforcement burdens given the risks of recidivism.

After rejecting a host of justiciability challenges to the lawsuit and after concluding the Guidance likely violated the Administrative Procedure Act, the district court issued a "nationwide preliminary injunction." The National Government sought emergency relief in this court.

II.

In deciding whether to grant a stay, we ask several interrelated questions: (1) Has the applicant made "a strong showing that he is likely to succeed on the merits"? (2) Would the applicant be "irreparably injured absent a stay"? (3) Would a stay "substantially injure the other parties" in the case? and (4) What does "the public interest" favor? Nken v. Holder , 556 U.S. 418, 434, 129 S.Ct. 1749, 173 L.Ed.2d 550 (2009) (quotation omitted). We start, and largely end, with the likelihood-of-success inquiry.

Constitutional standing. Article III of the U.S. Constitution permits federal courts to adjudicate only "cases or controversies," not any political dispute that happens to arise between the state and federal executive branches. To have standing to bring this lawsuit, the States must show that they have suffered an "injury in fact" "caused" by the Guidance that a favorable decision would "redress." Lujan v. Defs. of Wildlife , 504 U.S. 555, 560–62, 112 S.Ct. 2130, 119 L.Ed.2d 351 (1992). When a claimant challenges the National Government's actions with respect to third parties (here, the regulation or not of noncitizens), it is "substantially more difficult" to establish standing given the causation and redressability problems that invariably arise. Id. at 562, 112 S.Ct. 2130 (quotation omitted).

In trying to meet these requirements, the trio of States points to monetary harms allegedly caused by the Department's failure to enforce the immigration laws more vigorously. Their key concern is that the Department's prioritization of some risks—public safety, terrorism, and border security—will come at the expense of other statutory priorities. They worry in particular that the Guidance will decrease the number of noncitizens detained and removed and will shortchange efforts to detain and remove those convicted of drug crimes and crimes of moral turpitude, all with downstream costs to the States in the form of additional crime and public-welfare costs. But considerable speculation undergirds this claim.

As for injury, start with the reality that the Guidance does not directly injure the States. It does not regulate the States by telling them what they can or cannot do in their jurisdiction. And it does not purport to preempt any...