Federal judge in Texas shot down Biden’s immigration rule, but didn’t order him to follow the law

Last week a federal district court judge in Texas vacated the Sept. 30, 2021, Biden administration memorandum (known as “the Final Memorandum”) that established guidelines for the enforcement of civil immigration law. In a decision dated June 10, 2022, the judge declared the memorandum arbitrary and capricious, contrary to law, and failing to observe the rule making provisions in the Administrative Procedure Act (APA). 

But the judge denied a request from the states that brought the suit for a permanent injunction ordering the administration to comply with the Immigration and Nationality Act’s (INA) mandatory statutory detention provisions. 

The decision isn’t about migrants in general, or even migrants who are in the United States illegally: It’s about whether the administration should have complied with the APA’s rulemaking requirements instead of just issuing a memorandum, and whether the guidelines violate the mandatory detention provisions in INA sections 1226(c) and 1231(a)(2).

The guidelines

The “Final Memorandum” restricts enforcement actions to migrants who pose a threat to national security, public safety, or border security. It includes extensive, continuous training to ensure that immigration enforcement officers know the guidelines, and it requires the collection of data on their enforcement actions to confirm that they are following them.

The judge found that the guidelines leave out significant deportation grounds, such as migrants convicted of crimes of moral turpitude, drug offenses, multiple offenses with an aggregate sentence of confinement of five years or more, and certain firearms offenses.

They also leave out migrants who are traffickers of controlled substances, who participate in the commercialized sex industry, who served in foreign governments and committed particularly severe violations of religious freedom, who participate in the human trafficking industry, and who engage in money laundering — and migrants subject to final deportation orders.

Court jurisdiction

To be subject to judicial review under the APA, the Final Memorandum must be a “final agency action.” To constitute a final agency action, two conditions must be satisfied: First, the action must mark the consummation of the agency’s decision-making process, and second, it must establish rights or obligations from which legal consequences will flow.

There is no dispute over the first requirement. It is the second that is in dispute

The judge finds that the Final Memorandum is a final agency action because it uses mandatory language that requires enforcement officers to consider and apply certain priorities and factors before taking enforcement action, and it expressly disallows reliance on the fact that a migrant has been convicted of an offense specified in a statutory provision.

Moreover, it provides migrants with the right to challenge enforcement actions they think are inconsistent with the Final Memorandum’s priorities.

Prosecutorial discretion     

The administration argues that it is just exercising prosecutorial discretion. The judge acknowledges that discretionary agency actions are not reviewable in court. He observes, however, that the executive branch just has case-by-case discretion to abandon immigration enforcement as to a particular individual — and the guidelines are not limited to individualized decision-making. They instead instruct enforcement officers in a generalized, prospective manner in contravention of mandatory, statutory detention provisions.

For instance, INA section 1226(c)(1)(B) provides that, the Attorney General shall take into custody any alien who has committed an aggravated felony, and the guidelines removed the category of “aggravated felonies” from consideration because it is “both over- and under-inclusive.”

Language in statutory provisions was passed by both the House of Representatives and the Senate and signed into law by the president after extensive investigation, hearings, review, and negotiations. The judge said the administration is not free to toss such language aside.

Resources and detention facilities

The administration argues that it is unable to detain more migrants because it lacks the resources and the detention facilities it would require. 

The judge finds that the administration has not acted in good faith with respect to its detention responsibilities. The administration blames Congress for its resource and detention facility deficiencies, but it has submitted two budget requests in which it asks Congress to cut those very resources and capacity by 26 percent.

Furthermore, the administration has persistently underutilized existing detention facilities. For example, the judge cites an Inspector General’s April 2022 report regarding one of ICE’s contractors that finds that “none of the [contractor’s] facilities used more than half of the number of beds ICE paid for under its contract.”

The judge ruled the administration can prioritize its expenditures within the bounds established by Congress, but it may not “modify unambiguous requirements imposed by a federal statute.”  

‘Shall’ means ‘may’?

The administration also argues that “shall” in the detention provisions at issue means “may.”  This made little sense to the judge.  

INA section 1226 provides that, on a warrant issued by the Attorney General, a migrant may be arrested and detained pending a decision on his removability, but there are limits to this discretion which are specified in Subsection 1226(c).

Titled, “Detention of criminal aliens,” it provides that, “[t]he Attorney General shall take into custody” certain migrants when released from state or local custody, who —

• Are inadmissible under INA section 1182(a)(2) (criminal grounds);
• Are deportable by reason of having committed a criminal specified in INA section 1227(a)(2); or
• Are inadmissible under INA section 1182(a)(3)(B) on specified security and related grounds or deportable under INA section 1227(a)(4)(B) for terrorist activities.

INA section 1231(a)(2) provides that, the Attorney General shall detain migrants subject to a removal order during the removal period. It specifies that, “Under no circumstance during the removal period shall the Attorney General release an alien who” has been found inadmissible under INA section 1182(a)(2) or deportable under INA sections 1227(a)(2) or 1227(a)(4)(B).

The judge said the administration’s reading would erase these limitations in violation of the cardinal principle of statutory interpretations that courts must give effect, if possible, to every clause and word in a statute.

Congress could have drafted a statute that provides general authority to detain. But it was more specific. Deliberately so.

What happens next?

The judge’s decision does not order Biden to comply with the mandatory detention provisions, but the president’s oath of office requires him to “support and defend the Constitution of the United States.”  And the Constitution requires the president to “take Care that the Laws be faithfully executed.”

Two of the four presidents who preceded Bident were impeached. Will the Republicans use the “take care” clause as a basis for making Biden the third if they regain control of the Congress in the upcoming midterm elections?

With immigration a hot political issue on the right, it’s not beyond imagination.

Nolan Rappaport was detailed to the House Judiciary Committee as an Executive Branch Immigration Law Expert for three years. He subsequently served as an immigration counsel for the Subcommittee on Immigration, Border Security and Claims for four years. Prior to working on the Judiciary Committee, he wrote decisions for the Board of Immigration Appeals for 20 years. Follow him at https://www.blogger.com/blog/posts/2306123393080132994