Arizona v. Biden

PETER B. SILVAIN, JR. MAGISTRATE JUDGE

ORDER: (1) DENYING DEFENDANTS' MOTION TO TRANSFER (DOC. NO. 7); (2) LIFTING THE STAY ON BRIEFING OF PLAINTIFFS' MOTION FOR A PRELIMINARY INJUNCTION; AND (3) SETTING A BRIEFING SCHEDULE ON PLAINTIFFS' MOTION FOR A PRELIMINARY INJUNCTION

HON. MICHAEL J. NEWMAN UNITED STATES DISTRICT JUDGE

Plaintiffs, the States of Arizona, Montana, and Ohio, bring this action to prevent the Department of Homeland Security (“DHS”) from implementing civil immigration enforcement guidance they say is unlawful. Doc. Nos. 1, 1-1. Defendants^[1] believe this case should be heard in the U.S. District Court for the District of Arizona and have moved to transfer it there. Doc. No. 7. DHS's venue motion is fully briefed and ripe for review. Doc. Nos. 10, 12. For the following reasons, the Court denies DHS's motion and will retain this case.

I. Background

DHS's civil immigration enforcement policy has shifted since President Joseph R. Biden's inauguration on January 20, 2021. Doc. No. 7 at PageID 368-70. At issue in this case is DHS's September 30, 2021 Guidelines for the Enforcement of Civil Immigration Law (“Permanent Guidance”). Doc. No. 1-1. This is not the first challenge to the Biden Administration's

immigration enforcement guidance: at least six such lawsuits have been filed in district courts around the country.^[2] Relevant to the instant motion is Arizona and Montana's (but not Ohio's) lawsuit in the District of Arizona, now pending appeal, that attempted to halt previous iterations of the Permanent Guidance. Arizona v. U.S. Dep't of Homeland Sec., No. 2:21-cv-186, 2021 WL 2787930 (D. Ariz. June 30, 2021), appeal pending, No. 21-16118 (9th Cir.).

A. Arizona and Montana Sue DHS in Arizona

1. The January 20 Memo

On January 20, 2021, DHS Acting Secretary David Pekoske issued a department-wide memorandum entitled, “Review of and Interim Revision to Civil Immigration Enforcement and Removal Policies and Priorities” (the “January 20 Memo”). Doc. No. 4-3. Section A ordered DHS's chief of staff to “coordinate a Department-wide review of policies and practices concerning immigration enforcement.” Id. at PagelD 145. Section B instructed staff to focus their civil immigration enforcement efforts on noncitizens who present a threat to national or border security or public safety. Id. Section C announced a 100-day pause on all removals of noncitizens with a final order of deportation. Id. at PagelD 146.^[3]

Arizona and Montana sued DHS in the U.S. District Court for the District of Arizona on February 3, 2021 seeking to block enforcement of the January 20 Memo. Arizona, No. 2:21-cv-186, Doc. No. 1. They claimed DHS violated 8 U.S.C. § 1231(a) -- which provides “the Attorney

General shall remove [an alien with a final order of deportation] from the United States within a period of 90 days” -- by suspending all removals. Id. DHS -- in the States' view -- also violated the Administrative Procedure Act (“APA”) by promulgating a rule without following the APA's notice-and-comment procedures. Id.

2. Interim Guidance

Acting Immigration and Customs Enforcement (“ICE”) Director Tae D. Johnson issued updated guidance to ICE staff on February 18, 2021 (“Interim Guidance”). Doc. No. 4-6. The Interim Guidance expanded on the enforcement priority categories identified in the January 20 Memo. Id. at PageID 156. Noncitizens who presented national or border security or public safety threats were now presumed to be removable. Id. at PageID 159-60. ICE staff were given certain criteria to evaluate whether a noncitizen posed a risk to public safety, such as the “extensiveness, seriousness, and recency of the criminal activity” or mitigating factors like “personal and family circumstances” and “ties to the community.” Id. at PageID 160. The Interim Guidance clarified that no prior approval was necessary for presumed enforcement or removal cases but was required for all other noncitizens. Id. at PageID 160-61. Acting Director Johnson noted the Interim Guidance would control until the DHS Secretary issued permanent enforcement guidelines. Id. at PageID 156.

On March 8, 2021, Arizona and Montana added the Interim Guidance to their challenge and moved for a preliminary injunction. Arizona, No. 2:21-cv-186, Doc. Nos. 12, 13. The district court denied the States' motion for a preliminary injunction upon concluding the Interim Guidance was not subject to judicial review under the APA. Arizona, 2021 WL 2787930, at *11.^[4] Arizona

and Montana appealed. Notice of Appeal, Arizona, No. 2:21-cv-186, Doc. No. 92 (D. Ariz. June 30, 2021).

3. Permanent Guidance

On September 30, 2021, while their appeal was pending before the Ninth Circuit, DHS Secretary Alejandro N. Mayorkas issued the Permanent Guidance. Doc. No. 1-1. The Permanent Guidance expanded on the Interim Guidance in two main ways. Compare id., with Doc. No. 4-6. First, it expanded the aggravating and mitigating factors ICE staff must weigh when assessing whether a noncitizen poses a public safety risk. Doc. No. 1-1 at PageID 26. Staff are instructed to evaluate the gravity of the noncitizen's criminal offense and sentence imposed; the harm caused; the sophistication of the crime; whether a firearm or dangerous weapon was used; and whether the noncitizen has a “serious” criminal record. Id. Staff must weigh mitigating factors before commencing enforcement proceedings, such as: age; length of presence in the United States; the noncitizen's mental or physical health; status as a victim of, or witness to, a crime; the impact deportation would have on the noncitizen's family; military service; evidence of rehabilitation; or expungement. Id. at PageID 26-27.

Noncitizens are no longer presumed to be an enforcement or removal priority if they meet the Permanent Guidance's criteria. Id. Nor is preapproval necessary before ICE staff institute enforcement or removal proceedings against a noncitizen who does not meet a priority category. Id. Upon the Permanent Guidance's November 29, 2021 effective date, DHS was to withdraw the January 20 Memo and Interim Guidance. Id. at PageID 29.

DHS petitioned the Ninth Circuit to stay briefing on Arizona and Montana's appeal until the Permanent Guidance went into effect. Appellees' Brief, Arizona, No. 21-16118, Doc. No. 41 (9th Cir. Oct. 4, 2021). DHS signaled it would argue the Permanent Guidance moots their appeal. Id. Arizona and Montana disagreed, contending that the Ninth Circuit can afford “effectual relief'

by enjoining DHS's ongoing statutory violations that will allegedly continue beyond the Permanent Guidance's effective date. Id. at Doc. No. 42. The Ninth Circuit agreed to stay appellate proceedings until November 29, 2021 and gave the States until December 6, 2021 to either file a status report or move for appropriate relief. Id. at Doc. No. 45.

B. Arizona, Montana, and Ohio Challenge the Permanent Guidance in this Court

Here is where the case now before this Court fits in. On November 18, 2021, Arizona and Montana joined Ohio in filing a complaint and corresponding motion for a preliminary injunction to enjoin the Permanent Guidance. Doc. Nos. 1, 4.^[5]DHS now asks the Court to transfer this action to the District of Arizona. Doc. No. 7. It believes that Arizona and Montana are attempting to avoid unfavorable precedent by adding a nominal plaintiff (a characterization Ohio rejects) to lay venue in a new circuit. Id. at PagelD 367-68. Transfer to the District of Arizona is appropriate, DHS insists, to prevent Arizona and Montana from maintaining a live appeal in the Ninth Circuit while simultaneously challenging the Permanent Guidance before this Court. Id. at PagelD 371.

Plaintiffs offer a three-fold counter. Doc. No. 10. First, they assert that Ohio has a legitimate interest in this litigation because, in its view, the Permanent Guidance will force it to devote more resources towards externalities created by illegal immigration. Id. at PagelD 387. They point out that, were the Court to send this case to Arizona, Ohio could voluntarily dismiss itself and re-file its complaint here. Id. at PagelD 384. Second, Plaintiffs view this case and the Ninth Circuit appeal as challenging distinct administrative actions that can run their course in separate circuits. Id. at PagelD 385. Finally, Plaintiffs accuse DHS of similar gamesmanship in the Ninth Circuit by trying to stall the completion of merits briefing there. Id. at PagelD 385-86.

The Court now turns to DHS's transfer motion.

II. Change of Venue

28 U.S.C. § 1404(a) governs change of venue. A two-part test guides the analysis: (1) whether the plaintiff could have brought the action in the transferee court; and (2) whether the parties' considerations and the interests ofjustice support transfer. See Stewart Org., Inc. v. Ricoh Corp., 487 U.S. 22, 29 (1988). “[U]nless the balance is strongly in favor of the defendant, the plaintiff's choice of forum should rarely be disturbed.” Reese v. CNHAm. LLC, 574 F.3d 315, 320 (6th Cir. 2009) (quoting Dowling v. Richardson-Merrell, Inc., 727 F.2d 608, 612 (6th Cir. 1984)). When the considerations are equal, and the arguments on both sides are justifiable, the court may exercise discretion to retain the case. See id. (upholding the district court's refusal to transfer venue when the key parties and location were in another district, but retaining the case would allow the court to apply the same law used to adjudicate a parallel lawsuit between the parties arising from the same circumstances).

The Court makes this decision “on an individual basis by considering convenience and fairness.” Kerobo v. Sw. Clean Fuels, Corp., 285 F.3d 531, 537 (6th Cir. 2002) (citi...