State of Texas v. United States ( 2021 )

Case: 21-40618 Document: 00516015057 Page: 1 Date Filed: 09/15/2021
United States Court of Appeals
for the Fifth Circuit United States Court of Appeals
Fifth Circuit
FILED
September 15, 2021
No. 21-40618
Lyle W. Cayce
Clerk
State of Texas; State of Louisiana,
Plaintiffs—Appellees,
versus
United States of America; Alejandro Mayorkas,
Secretary, U.S. Department of Homeland Security;
United States Department of Homeland Security; Troy
Miller, Acting Commissioner, U.S. Customs and Border
Protection, In his official capacity; United States
Customs and Border Protection; Tae D. Johnson,
Acting Director, U.S. Immigration and Customs
Enforcement, In his official capacity; United States
Immigration and Customs Enforcement; Tracy Renaud,
Senior Official Performing the Duties of the Director
of the U.S. Citizenship and Immigration Services, in
her official capacity; United States Citizenship and
Immigration Services,
Defendants—Appellants.
Appeal from the United States District Court
for the Southern District of Texas
USDC No. 6:21-CV-16
Before Southwick, Graves, and Costa, Circuit Judges.
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Gregg Costa, Circuit Judge:
A district court issued a nationwide preliminary injunction preventing
the United States from relying on immigration enforcement priorities
outlined in memos from the Department of Homeland Security and
Immigration and Customs Enforcement. The United States seeks a stay of
that injunction pending appeal. For the reasons discussed below, we grant a
partial stay.
I.
On Inauguration Day for the new President, the Acting Secretary of
DHS issued a memo titled “Review of and Interim Revision to Civil
Immigration Enforcement and Removal Policies and Priorities.”
Memorandum from David Pekoske (Jan. 20, 2021) (DHS Memo). It
announced that the Department would undergo a comprehensive review of
enforcement policies, announced the DHS’s interim enforcement priorities,
and directed an immediate 100-day pause on removals. 1
This case is about the memo’s interim enforcement priorities. Noting
DHS’s limited resources and inability to “respond to all immigration
violations or even remove all persons unlawfully in the United States,” the
memo announces the following civil enforcement priorities:
1. National security. Individuals who have engaged in or are sus-
pected of terrorism or espionage, or whose apprehension, arrest
and/or custody is otherwise necessary to protect the national secu-
rity of the United States.
2. Border security. Individuals apprehended at the border or ports of
entry while attempting to unlawfully enter the United States on or
1
Texas initially brought a separate suit challenging the 100-day pause. The district
court issued a temporary restraining order and eventually a preliminary injunction against
enforcement of that pause. See Texas v. United States, -- F. Supp. 3d --, 2021 WL 2096669(S.D. Tex. May 24, 2021). The United States did not appeal that ruling.
2
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after November 1, 2020, or who were not physically present in the
United States before November 1, 2020.
3. Public safety. Individuals incarcerated within federal, state, and lo-
cal prisons and jails released on or after the issuance of this memo-
randum who have been convicted of an “aggravated felony,” as that
term is defined in section 101(a)(43) of the Immigration and Nation-
ality Act at the time of conviction, and are determined to pose a
threat to public safety.
DHS Memo at 2.
The memo notes that these priorities will influence “not only the
decision to issue, serve, file, or cancel a Notice to Appear, but also to a broad
range of other discretionary enforcement decisions, including deciding:
whom to stop, question, and arrest; whom to detain and release; whether to
settle, dismiss, appeal, or join in a motion on a case; and whether to grant
deferred action or parole.” Id. The memo also announces that it does not
“prohibit[] the apprehension or detention of individuals unlawfully in the
United States who are not identified as priorities herein.” Id. at 3.
ICE issued a memo on February 18, 2021 that incorporates the same
three interim priorities. Memorandum from Tae Johnson, Acting Director
of ICE, on Civil Immigration Enforcement and Removal Priorities (Feb. 18,
2021) (ICE Memo). Like the DHS memo, the ICE version notes that “the
interim priorities do not require or prohibit the arrest, detention, or removal
of any noncitizen.” ICE Memo at 3. But the ICE memo requires, with
limited exceptions, that agents seek approval before pursuing an action
against a person who is not included in the prioritized categories. Id. at 6.
Immigration authorities have followed these priorities since the
memos issued at the beginning of the year. The government contends the
memos’ effect can be seen in arrest statistics for the February-July period.
Overall administrative arrests are down from 39,107 in 2020 to 25,916 this
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year. But arrests of those with aggravated felonies—priority #3 (public
safety)—are up by roughly 2,000 from the prior year; they now account for
one in five arrests.
Texas and Louisiana filed this lawsuit seeking to enjoin portions of the
DHS and ICE Memos, most significantly its enforcement priorities. In a
comprehensive opinion issued last month, the district court rejected a
number of justiciability challenges and then concluded that the memos
violated the Administrate Procedure Act in the following ways: they are
contrary to law—specifically two statutes requiring detention of certain
individuals; arbitrary and capricious; and issued without notice and
comment. See 5 U.S.C. §§ 706(2)(A), (D), 553. It thus enjoined the
government “from enforcing and implementing” the civil enforcement
guidelines described in the DHS and ICE memos. It also ordered the
defendant agencies to file reports with the court documenting compliance.
Although the district court expressed reluctance about issuing an injunction
that went beyond the parties before it, it believed Fifth Circuit precedent
required it do so in a case involving federal immigration policy. See Texas v.
United States, 809 F.3d 134, 188 (5th Cir. 2015) (stating that “in appropriate
circumstances” a court may “issue a nationwide injunction”), aff’d by
equally divided vote, United States v. Texas, 577 U.S. 1101 (2016) As a result,
even though district courts have rejected challenges to the same enforcement
priorities brought by Florida and Arizona, 2 the district court’s preliminary
injunction applies to federal immigration authorities in those states and all
others.
2
Arizona v. U.S. Dep’t of Homeland Sec., No. CV-21-00186, 2021 WL 2787930 (D.
Ariz. June 30, 2021); Florida v. United States, -- F. Supp. 3d. --, 2021 WL 1985058 (M.D.
Fla. May 18, 2021).
4
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The district court delayed the effective date of its injunction until
August 30 to allow the United States to seek a stay from this court. We
granted a temporary administrative stay and heard oral argument. The
United States tells us that the “interim” guidance this case considers will be
superseded by new guidance expected by the end of this month. Despite the
possibility of an imminent expiration date on the memos challenged in this
case, we perform our duty to consider the motion before us.
II.
In deciding whether to grant a stay, we consider “(1) whether the stay
applicant has made a strong showing that he is likely to succeed on the merits;
(2) whether the applicant will be irreparably injured absent a stay; (3)whether
issuance of the stay will substantially injure the other parties interested in the
proceeding; and (4) where the public interest lies.” Nken v. Holder, 556 U.S.
418, 434 (2009) (quoting Hilton v. Braunskill, 481 U.S. 770, 776 (1987)). We
conclude that the United States has shown a likelihood of success at least to
the extent the injunction prevents immigration officials from relying on the
memos’ enforcement priorities before an immigration proceeding is
commenced.
“A principal feature of the removal system is the broad discretion
exercised by immigration officials. Federal officials, as an initial matter, must
decide whether it makes sense to pursue removal at all.” Arizona v. United
States, 567 U.S. 387, 396 (2012). The challenged memos prioritize removal
of those who are a threat to national security, those who entered the country
this year, and those convicted of an aggravated felony. The central merits
issue is whether Congress has interfered with immigration officials’
traditional discretion to decide when to remove someone. If not, then the
interim priorities are the type of enforcement decisions that are “committed
to agency discretion by law” and not reviewable (for substance or procedure)
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under the APA. See 5 U.S.C. § 701(a)(2); Heckler v. Chaney, 470 U.S. 821,
828–35 (1985); see also Lincoln v. Vigil, 508 U.S. 182, 191 (1993) (“[A]n
agency’s decision not to institute enforcement proceedings [is]
presumptively unreviewable under § 701(a)(2).”).
The reasons that charging decisions are presumptively unreviewable
echo the rationales the memo cites for focusing on three priorities: in
deciding when to enforce a law, “[a]n agency must not only assess whether a
violation has occurred, but whether agency resources are best spent on this
violation or another . . . whether the particular enforcement action requested
best fits the agency’s overall policies, and, indeed, whether the agency has
enough resources to undertake the action at all.” Heckler, 470 U.S. at 831.
These concerns that underlie the unreviewability of enforcement decisions
are “greatly magnified in the deportation context.” Reno v. Am.-Arab Anti-
Discrimination Comm., 525 U.S. 471, 490 (1999).
While recognizing this general discretion law enforcement enjoys, the
district court concluded that two immigration statutes limit it. They are both
part of the Illegal Immigration Reform and Immigrant Responsibility Act of
1996 (IIRIRA). One provision governs the custodial status of aliens facing
removal proceedings. The general rule is that the Attorney General “may”
detain the individual pending the removal proceeding or “may” release that
person on bond. 8 U.S.C. § 1226(a). But the Attorney General “shall take
into custody any alien” who is deportable or inadmissible for specific reasons.
Id. § 1226(c)(1) (emphasis added). This category includes the aggravated
felons who are a focus of the interim enforcement priorities, as well
individuals not on the priority list such as those with certain drug convictions
or convictions for crimes of moral turpitude. Id. The statute further explains
that such an arrest shall occur “when the alien is released, without regard to
whether the alien is released on parole, supervised release, or probation, and
without regard to whether the alien may be arrested or imprisoned again for
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the same offense.” Id. 3 As the district court explained, section 1226(c)
arrests usually come into play when ICE places a detainer on an alien who is
serving a sentence; the detainer results in a transfer to ICE custody once the
sentence is served. Once the person is in ICE custody, a notice to appear
commencing removal issues.
The other law that, in the district court’s view, eliminates discretion
applies after a removal order has issued. During the removal period that
follows, which is supposed last no more than 90 days, see 8 U.S.C.
§ 1231(a)(1)(A), “the Attorney General shall detain the alien,” id.§ 1231(a)(2). This law applies across the board; it is not limited to certain
categories of aliens as section 1226(c) is. If removal does not happen within
90 days, then other rules allowing for release under certain conditions
govern. See id. § 1231(a)(3).
Our main concern with the injunction is that we believe these IIRIRA
provisions do not eliminate immigration officials’ “broad discretion” to
decide who should face enforcement action in the first place. Arizona, 567
U.S. at 396. They address a separate question: the custodial status of
individuals who are facing removal proceedings or who have been removed.
See 8 U.S.C. § 1226(a),(c); § 1231(a)(2). To the extent the injunction
prevents the Attorney General from relying on the memos to release those
who are facing enforcement actions and fall within the mandatory detention
provisions—for example, prisoners with qualifying convictions against
whom ICE has lodged a detainer (8 U.S.C. § 1226(c)(1)) or individuals
3
The statute provides that the Attorney General “may release” such a person in
limited circumstances, see id. § 1126(c)(2), which the district court believed buttressed its
view of the otherwise mandatory nature of section 1126(c)(1).
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subject to removal orders (id. § 1231(a)(2))—we see no basis for upsetting it
at this stage as that is what the statutes govern.
The district court’s injunction, however, is not limited to detention
decisions of aliens the United States has decided to remove. It is much
broader. It enjoins reliance on memos that guide decisions on, among other
things, “whether to issue a detainer,” “whether to issue, reissue, serve, file,
or cancel a Notice to Appear,” and “whether to stop, question, or arrest a
noncitizen.” ICE Memo at 3. We see the United States likely succeeding on
this core foci of the interim enforcement priorities—immigration officials’
ability to prioritize who is subject to investigative and enforcement action in
the first place. See Reno, 525 U.S. at 483 (recognizing that law enforcement
discretion extends to “initiation or prosecution of various stages in the
deportation process,” including the “discretion to abandon the endeavor”).
The likelihood of success factor requires a prediction. The first
building block of our prediction is the strong background principle that the
“who to charge” decision is committed to law enforcement discretion,
including in the immigration arena. Id. at 483; Arizona, 567 U.S. at 396. It is
quite telling that neither the States nor the district court have cited a single
Supreme Court case requiring law enforcement (state nor federal, criminal
nor immigration) to bring charges against an individual or group of
individuals. 4
4
Of course, as the district emphasized, its injunction does not compel ICE to arrest
or remove any particular person. But the linchpin of its analysis—the reason it concluded
that the memos were subject to APA review and then contrary to law—was its holding that
the IIRIRA mandatory detention laws overcome the ordinary presumption that law
enforcement discretion is unreviewable. So the overriding legal question is whether
matters discussed in the memos, such as who to arrest and charge, are committed to law
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What is more, in the quarter century that IIRIRA has been on the
books, no court at any level previously has held that sections 1226(c)(1) or
1231(a)(2) eliminate immigration officials’ discretion to decide who to arrest
or remove. The Supreme Court has recognized that detention under section
1226(c)(1) is mandatory “pending the outcome of removal proceedings.”
Jennings v. Rodriguez, 138 S. Ct. 830, 838 (2018). 5 But its cases considering
the statute are ones in which detainees subject to enforcement action were
seeking their release. See id. at 846; Nielsen v. Preap, 139 S. Ct. 954, 960
(2019); Demore v. Kim, 538 U.S. 510, 513 (2003). The same is true of the
recent case involving section 1231 in which already-removed detainees
sought release. Guzman Chavez, 141 S. Ct. 2271, 2281 (2021). Those cases
do not consider whether the statutes eliminate the government’s traditional
prerogative to decide who to charge in enforcement proceedings (and thus
who ends up being detained).
enforcement discretion. To answer that question, it is instructive that the Supreme Court
has never allowed judicial oversight of such decisions.
Relatedly, Texas’s counsel suggested at oral argument that the injunction is limited
to the question of who to detain and does not prevent reliance on the memos’ priorities in
determining who to remove. But if that is the case then the injunction is overbroad because
it is a blanket prohibition on officials’ reliance on the interim priorities.
5
Jennings explains that section 1226(a) sets forth the “default rule” that “governs
the process of arresting and detaining that group of aliens pending their removal.” 138 S.
Ct. at 837. Section 1226(c) then “carves out a statutory category of aliens who may not be
released under 1226(a).” Id. Because section 1226(c) is an exception to section 1226(a),
both address the detention of “aliens already in the country pending the outcome of
removal proceedings.” Id. at 838; see also 8 U.S.C. § 1226(a) (“On a warrant issued by the
Attorney General, an alien may be arrested and detained pending a decision on whether the
aliens is to be removed from the United States. Except as provided in subsection(c) . . . .”).
Texas’s suggestion at oral argument that 1226(c)(1) requires detention even for
aliens who will never face removal proceedings thus is at odds with the text and Jennings’s
reading of it. There would, of course, be other concerns with indefinite detention for
someone not facing removal.
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And while the district court’s interpretation of these statutes is novel,
executive branch memos listing immigration enforcement priorities are not.
See Peter Markowitz, Prosecutorial Discretion Power at its Zenith: The Power to
Protect Liberty, 97 B.U. L. REV. 489, 508 & n.96 (2017) (listing seven DHS,
ICE, or INS memos issued from 1997 through 2014 that “set forth basic
guidelines . . . to follow in making prosecutorial discretion determinations”).
Yet no court has previously held that the detention statutes prevent such
guidance. Indeed, in holding unlawful the Deferred Action for Parents of
Americans and Lawful Permanent Residents, we recognized that the same
policy also set “priority levels” for enforcement. Texas, 809 F.3d at 166. Yet
Texas did not even argue that the United States had to “alter [its]
enforcement priorities.” Id. Because the state challenged only the deferred
action policy that “affirmatively confer[red]” status and benefits on a class,
that case involved “much more than nonenforcement” decisions. Id.
Against this absence of any authority limiting the executive’s
discretion in deciding whether to bring a removal proceeding is longstanding
precedent holding that the use of “shall” in arrest laws does not limit
prosecutorial discretion. See Cairo & F.R. Co. v. Hecht, 95 U.S. 168, 170
(1877). The most recent Supreme Court case involved a Colorado law
providing that a “peace officer shall arrest, or, if an arrest would be
impractical under the circumstances, seek a warrant for the arrest” of a
person violating a protective order. Town of Castle Rock v. Gonzales, 545 U.S.
748, 759 (2005) (citing Colo. Rev. Stat § 18-6-803.5(3)). Despite the
mandatory “shall”—the same word in the immigration detention statutes
that the district court concluded meant enforcement decisions were no
longer committed to agency discretion by law—the Court held that the law
did not eliminate police discretion in deciding whether to arrest a violator.
Id. at 760. The reason, Justice Scalia explained, is the “deep-rooted nature
of law-enforcement discretion, even in the presence of seemingly mandatory
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legislative commands.” Id. at 761. As another opinion had put it, it is
“simply ‘common sense that all police officers must use some discretion in
deciding when and where to enforce’” the law. Id. (quoting City of Chicago
v. Morales, 527 U.S. 41, 62 n.32 (1999)).
The district court concluded that “common sense” observation does
not apply here, but none of its attempted distinctions are convincing. First,
the district court noted that the IIRIRA detention laws “protect third-party
interests.” True, but that is also true of Colorado’s protective order law,
which protects domestic violence victims like the children the Castle Rock
defendant murdered. See 545 U.S. at 754; id. at 779 (Stevens, J., dissenting)
(noting the law protected “beneficiaries of domestic restraining orders”).
To the extent legislative purpose is relevant, that the IIRIRA’s inclusion of
mandatory language in the detention provisions was meant to address a
concern about lenient release policies makes the laws no different from the
Colorado protective order statute: it too was enacted against concerns about
underenforcement. Id. at 779–81. The district court noted that Castle Rock
involved a strong tradition of “police discretion,” but the same tradition
exists—in “greatly magnified form”—for immigration enforcement. Reno,
525 U.S. at 489–90; see also Arizona, 567 U.S. at 396. And the fact that the
mandatory “shall” contrasts with other uses of the permissive “may” in the
immigration detention laws is also true for the Colorado protective order
statute. See Colo. Rev. Stat. § 18-6-803.5(3)(d), (6)(a)-(b), (7), (9).
That brings us to the two older Supreme Court cases that the district
court thought supported its view that “shall” in the IIRIRA provisions
overrode the tradition of enforcement discretion. One is a Prohibition Era
case in which the government was seeking forfeiture of vehicles used for
bootlegging. Richbourg Motor Co. v. United States, 281 U.S. 528 (1930). The
question was which of two forfeiture laws governed the proceedings that the
government had elected to pursue. The Court answered that a “shall” in
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one of the statutes (the one giving lienholders to the vehicle a right to
forfeiture proceeds) controlled, rejecting the idea that the government could
decide which forfeiture law applied. Id. at 533. But that ruling is akin to the
routine judicial task of deciding which penalty provision applies to an action.
Nothing in Richbourg Motor says that the “shall” forfeiture law limited the
discretion of prohibition agents to decide which bootleggers to arrest and
which of their cars to put in forfeiture proceedings. The second case is even
further afield. It held that a law requiring that a defendant accused of
violating probation “shall forthwith be taken before the court” for a
revocation proceeding meant what it said—the defendant had to be given the
opportunity to appear in court and refute the charge. Escoe v. Zerbst, 295 U.S.
490, 492 (1935) (citing 15 U.S.C. § 725). Interpreting “shall” to be
mandatory outside the context of purported limits on enforcement discretion
is standard fare. Richbourg Motor and Escoe thus say nothing about when
“seemingly mandatory legislative commands” can uproot the “deep-rooted
nature of law-enforcement discretion.” Castle Rock, 545 U.S. at 761. It
makes sense that Castle Rock did not bother to cite them.
For these reasons, we do not see a strong justification for concluding
that the IIRIRA detention statutes override the deep-rooted tradition of
enforcement discretion when it comes to decisions that occur before
detention, such as who should be subject to arrest, detainers, and removal
proceedings. That means the United States has shown a likelihood of
prevailing on appeal to the extent the preliminary injunction prevents
officials from relying on the memos’ enforcement priorities for nondetention
decisions.
III.
The remaining factors also support a partial stay. Judicial interference
with a government agency’s policies often constitutes irreparable injury. See
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Valentine v. Collier, 956 F.3d 797, 803 (5th Cir. 2020). And prosecutorial
discretion is a core power of the Executive Branch, so its impairment
undermines the separation of powers. United States v. Nixon, 418 U.S. 683,
693 (1974); Heckler, 470 U.S. at 832; United States v. Ream, 491 F.2d 1243,
1246 n.2 (5th Cir. 1974) (explaining that the enforcement “discretion flows
not from a desire to give carte blanche to law enforcement officials but from
recognition of the constitutional principle of separation of powers”). As
soon-to-be Chief Justice John Marshall remarked when serving in Congress:
prosecutorial discretion is “‘an indubitable and a Constitutional power’
which permitted [the President] alone to determine the ‘will of the nation’ in
making decisions about when to pursue and when to forego prosecutions.”
Markowitz, supra, at 497 (quoting 10 ANNALS OF CONG. 615 (1800)).
The injury to the executive’s daily exercise of this historic discretion
is irreparable in the basic sense of the word; there is no way to recover the
time when its exercise of discretion is being enjoined during the pendency of
the appeal. Contrast Texas, 787 F.3d at 768 (finding no irreparable injury
during appeal because the United States could continue to “choose whom to
remove first” during appeal as injunction did not eliminate enforcement
discretion but instead addressed whether individuals could be granted status
and benefits, the temporary denial of which was reparable after appeal).
Indeed, in recent years the Supreme Court has repeatedly stayed nationwide
injunctions that prevented the Executive Branch from pursuing its
immigration policies. See, e.g., Wolf v. Innovation Law Lab, 140 S. Ct. 1564(2020) (mem.); Dep’t of Homeland Sec. v. New York, 140 S. Ct. 599 (2020)
(mem.); Barr v. East Bay Sanctuary Covenant, 140 S. Ct. 3 (2019) (mem.);
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Trump v. Sierra Club, 140 S. Ct. 1 (2019) (mem.); Trump v. Int’l Refugee
Assistance Project, 137 S. Ct. 2080 (2017). 6
The balance of equities also favors a stay. For close to nine months,
DHS has been following the enforcement priorities listed in its January 2021
memo. “[T]he maintenance of the status quo is an important consideration
in granting a stay.” Barber v. Bryant, 833 F.3d 510, 511 (5th Cir. 2016)
(quoting Dayton Bd. of Educ. v. Brinkman, 439 U.S. 1358, 1359 (1978)). Even
more so here when the release of new guidance is imminent. Allowing the
injunction to take effect could subject immigration agents to three separate
directives in the span of a few weeks. Moreover, eliminating DHS’s ability
to prioritize removals poses a number of practical problems given its limited
resources. One of those problems, which highlights the potential for
nationwide injunctions to conflict, is that ICE is subject to another
nationwide injunction that limits the number of beds it can use in detention
centers. Fraihat v. U.S. Immigration & Customs Enf’t, 445 F. Supp. 3d 709(C.D. Cal. 2020).
The United States has shown that the injunction will cause irreparable
injury and that the equities favor a stay.
6
The injury to the United States is not “self-inflicted” in the sense we recently
found potential injuries to be in State v. Biden, -- F.4th --, 2021 WL 3674780, at *14 (Aug.
19, 2021). There Texas had filed suit two months before DHS had officially terminated the
Migration Protection Protocols (MPP) program, so “DHS could have avoided this problem
by waiting to unwind MPP until the litigation was resolved.” Id. But this lawsuit was not
filed until April, more than two months after DHS announced its new enforcement
priorities. And there can be no argument here that the new Administration started
implementing the new enforcement priorities and only later memorialized them in a memo.
Id. (noting that DHS suggested it started “unwinding MPP four or more months before the
June 1 Memorandum”). The DHS memo challenged here issued on day one of the new
Administration.
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***
We therefore GRANT IN PART and DENY IN PART the motion to
stay the preliminary injunction. The injunction will go into effect to the
extent it prevents DHS and ICE officials from relying on the memos 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. The injunction is STAYED pending appeal in all other
respects including the reporting requirements.
15