Case 6:21-cv-00003 Document 1 Filed on 01/22/21 in TXSD Page 1 of 17

IN THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF TEXAS
VICTORIA DIVISION

STATE OF TEXAS,

Civ. Action No. ___________

Plaintiff, v.

COMPLAINT

The UNITED STATES OF AMERICA; DAVID PEKOSKE, Acting Secretary of the United States Department of Homeland Security, in his official capacity; UNITED STATES DEPARTMENT OF HOMELAND SECURITY; TROY MILLER, Senior Official Performing the Duties of the Commissioner of U.S. Customs and Border Protection, in his official capacity; U.S. CUSTOMS AND BORDER PROTECTION; TAE JOHNSON, Acting Director of U.S. Immigration and Customs Enforcement, in his official capacity; U.S. 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; U.S. CITIZENSHIP AND IMMIGRATION SERVICES,

Defendants.

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INTRODUCTION 1. On its first day in office, the Biden Administration cast aside congressionally enacted immigration laws and suspended the removal of illegal aliens whose removal is compelled by those very laws. In doing so, it ignored basic constitutional principles and violated its written pledge to work cooperatively with the State of Texas to address shared immigration enforcement concerns. This unlawful reversal will cause Texas immediate and irreparable harm if it is not enjoined. 2. Wednesday night, the alleged acting secretary of the Department of Homeland Security (“DHS”) ordered a halt on nearly all deportations of illegal aliens, including those whose removal was ordered following a full and fair hearing and those who are not entitled—and do not claim to be entitled—to further immigration benefits. If left unchallenged, DHS could re-assert this suspension power for a longer period or even indefinitely, effectively granting a blanket amnesty to illegal aliens that Congress has refused to pass time and time again. The Constitution, controlling statutes, and prior Executive pledges prevent a seismic change to this country’s immigration laws merely by memorandum.
I. PARTIES 3. Plaintiff State of Texas is a sovereign State, subject only to the Constitution of the United States. Tex. Const. art. I, § 1. Texas has the authority and responsibility to protect the health, safety, and welfare of its citizens.
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4. Texas has interests that fall within the zone of interests of federal statutes on immigration policy. “The pervasiveness of federal regulation does not diminish the importance of immigration policy to the States,” which “bear[ ] many of the consequences of unlawful immigration.” Arizona v. United States, 567 U.S. 387, 397 (2012).
5. When DHS fails to remove illegal aliens in compliance with federal law, Texas faces significant costs. A higher number of illegal aliens in Texas leads to budgetary harms, including higher education and healthcare costs.
6. Defendants are appointed officials of the United States government, United States governmental agencies responsible for the issuance and implementation of the challenged memorandum, and the United States.
7. Defendant the United States of America is sued under 5 U.S.C. sections 702–703 and 28 U.S.C. section 1346.
8. Defendant David Pekoske is the alleged Acting Secretary of the United States Department of Homeland Security. He issued the January 20 Memorandum. He is sued in his official capacity only.
9. Defendant the United States Department of Homeland Security (“DHS”) will implement the January 20 Memorandum. DHS oversees Defendants U.S. Citizenship and Immigration Services (“USCIS”), U.S. Customs and Border Protection (“CBP”), and U.S. Immigration and Customs Enforcement (“ICE”).
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10. Defendant Troy Miller is the Senior Official Performing the Duties of the Commissioner of CBP. He received the January 20 Memorandum. He is sued in his official capacity only.
11. Defendant Tae Johnson is the Acting Director of ICE. He received the January 20 Memorandum. He is sued in his official capacity only.
12. Defendant Tracy Renaud is the Senior Official Performing the Duties of the Director of USCIS. She received the January 20 Memorandum. She is sued in her official capacity only.
II. JURISDICTION AND VENUE 13. The Court has subject matter jurisdiction pursuant to 28 U.S.C. sections 1331, 1346, 1361 and 5 U.S.C. sections 702–703. 14. The Court is authorized to award the requested declaratory and injunctive relief under 5 U.S.C. section 706, 28 U.S.C. section 1361, and 28 U.S.C. sections 2201–2202. 15. Venue lies in this district pursuant to 28 U.S.C. section 1391 because the State of Texas is a resident of this judicial district, and a substantial part of the events or omissions giving rise to Plaintiff’s claims occurred in this District. Venue is also proper under Section VIII of the Agreement.
III. FACTUAL BACKGROUND A. The Agreement 16. Cooperation and coordination between federal and state officials are essential to the effective enforcement of federal immigration law.
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17. To promote such cooperation and coordination, Texas and DHS entered

into a mutually beneficial agreement. See Ex. A, Agreement between Department of

Homeland Security and the State of Texas (hereinafter, the “Agreement”). The

Agreement establishes a binding and enforceable commitment between DHS and

Texas. Id. § 2.

18. Generally, the Agreement provides that “Texas will provide information

and assistance to help DHS perform its border security, legal immigration,

immigration enforcement, and national security missions in exchange for DHS’s

commitment to consult Texas and consider its views before taking” certain

administrative actions. Ex. A § 2.

19. For example, DHS must “[c]onsult with Texas before taking any action

or making any decision that could reduce immigration enforcement” or “increase the

number of removable or inadmissible aliens in the United States.” Ex. A § III.A.2.

That “includes policies, practices, or procedures which have as their purpose or

effect”:

•

“reducing, redirecting, reprioritizing, relaxing, lessening, eliminating,

or in any way modifying immigration enforcement”;

•

“pausing or decreasing the number of returns or removals of removable

or inadmissible aliens from the country”; or

•

“declining to decrease the number of lawful, removable, or inadmissible

aliens residing in the United States.”

Ex. A § III.A.2.a, c, f.

20. To enable this consultation process, the Agreement requires DHS to

“[p]rovide Texas with 180 days’ written notice of any proposed action” subject to the

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consultation requirement. Ex. A § III.A.3. That gives Texas “an opportunity to consult and comment on the proposed action.” Id. After Texas submits its views, “DHS will in good faith consider Texas’s input and provide a detailed written explanation of the reasoning behind any decision to reject Texas’s input before taking any action” covered by the consultation requirement. Id.
21. The Agreement authorizes adjudication of disputes about the Agreement “in a United States District Court located in Texas.” Ex. A § VIII.
22. To the extent DHS fails to comply with its obligations, the Agreement expressly provides for injunctive relief. It would “be impossible to measure in money the damage that would be suffered if the parties fail[ed] to comply with” the Agreement. Ex. A § VI. “[I]n the event of any such failure, an aggrieved party [would] be irreparably damaged and [would] not have an adequate remedy at law.” Id. “Any such party shall, therefore, be entitled (in addition to any other remedy to which it may be entitled in law or in equity) to injunctive relief, including specific performance, to enforce such obligations, and if any action should be brought in equity to enforce any of the provisions of this Agreement, none of the parties hereto shall raise the defense that there is an adequate remedy at law.” Id.
23. The Agreement provides mechanisms by which it can be modified or terminated. See Ex. A §§ XIV–XV. Neither Texas nor DHS has sought to modify or terminate the Agreement.
B. The January 20 Memorandum 24. On January 20, 2021, Acting Secretary of DHS David Pekoske issued a memorandum “directing an immediate pause on removals of any noncitizen with a
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final order of removal (except as noted below) for 100 days.” See Ex. B, Memo. from David Pekoske, Review of and Interim Revision to Civil Immigration Enforcement and Removal Policies and Priorities (Jan. 20, 2021) at 3 (footnote omitted) (hereinafter, the “January 20 Memo.”).
25. The January 20 Memorandum includes only four narrow exceptions. “The pause on removals applies to any noncitizen present in the United States when [the memorandum] takes effect with a final order of removal except one who: 1. According to a written finding by the Director of ICE, has engaged in or is suspected of terrorism or espionage, or otherwise poses a danger to the national security of the United States; or 2. Was not physically present in the United States before November 1, 2020; or 3. Has voluntarily agreed to waive any rights to remain in the United States, provided that he or she has been made fully aware of the consequences of waiver and has been given a meaningful opportunity to access counsel prior to signing the waiver; or 4. For whom the Acting Director of ICE, following consultation with the General Counsel, makes an individualized determination that removal is required by law.” Ex. B at 3–4 (footnote omitted).
26. As a result, the January 20 Memorandum will prevent the vast majority of removals from taking place.
27. The January 20 Memorandum “go[es] into effect as soon as practical and no later than January 22, 2021.” Ex. B at 3.
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28. DHS did not follow the procedures outlined in the Agreement. DHS neither notified Texas that it was considering such changes nor consulted with Texas about such changes.
29. The January 20 Memorandum was issued without notice and comment under the APA.
30. The January 20 Memorandum did not consider any of the significant harms that Texas faces as a result of DHS suspending the removal of illegal aliens.
C. Imminent and Irreparable Harms to Texas 31. DHS has already acknowledged the effect that its decisions have on Texas. “Texas, like other States, is directly and concretely affected by changes to DHS rules and policies that have the effect of easing, relaxing, or limiting immigration enforcement. Such changes can impact Texas’s law enforcement, housing, education, employment, commerce, and healthcare needs and budgets.” Ex. A § II. 32. Indeed, DHS has specifically admitted that “a decrease or pause on returns or removals of removable or inadmissible aliens” would “result in concrete injuries to Texas.” Ex. A § II. 33. Texas has already been harmed and faces additional immediate by the rushed implementation of the January 20 Memorandum. The Memorandum has already deprived Texas of the option of adjusting its policies in light of the federal shift. As DHS itself has acknowledged, “[t]he harm to Texas is particularly acute where its budget has been set months or years in advance and it has no time to adjust its budget to respond to DHS policy changes.” Ex. A § II.
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34. For example, Texas expends funds to provide social services to illegal immigrants each year, including health care and education expenses, and must account for those anticipated expenditures through in its budget. Those amounts will increase should DHS halt nearly all of the removals from Texas.
35. To avoid these harms, Texas asked DHS to immediately rescind the January 20 Memorandum. See Ex. C, Jan. 21, 2020 letter from Ken Paxton to David Pekoske. Texas has not received a response as of the filing of this complaint.
36. DHS’s implementation of the January 20 Memorandum is imminent. See Ex. B at 3 (providing that the “immediate pause on removals” will “go into effect as soon as practical and no later than January 22, 2021”).
37. These imminent and irreparable harms have forced Texas to seek immediate relief.
IV. CLAIMS COUNT I
Failure to Provide Notice to and Consult with Texas 38. Plaintiff incorporates by reference all preceding paragraphs. 39. DHS issued the January 20 Memorandum without following the notice and consultation requirements contained in the Agreement. 40. The January 20 Memorandum is “arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law” and “without observance of procedure required by law.” 5 U.S.C. § 706(2)(A), (D). 41. The January 20 Memorandum exceeds the authority DHS can delegate to Acting Secretary Pekoske and is therefore ultra vires.
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42. As a result of the January 20 Memorandum, Texas “will be irreparably damaged and will not have an adequate remedy at law.” Ex. A § VI. Texas is therefore “entitled . . . to injunctive relief . . . to enforce [DHS’s] obligations” under the Agreement. Id. § VI.
COUNT II Failure to Remove Illegal Aliens in Violation of 8 U.S.C. § 1231 43. Plaintiff incorporates by reference all preceding paragraphs. 44. The January 20 Memorandum is unlawful because it violates 8 U.S.C. Section 1231. Section 1231 provides that “when an alien is ordered removed, the Attorney General shall remove the alien from the United States within a period of 90 days.” 8 U.S.C. § 1231(a)(1)(A). 45. By “pausing” removals for 100 days, the January 20 Memorandum will prevent DHS from complying with Section 1231. It therefore violates the APA. The January 20 Memorandum is both “arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law” and “in excess of statutory jurisdiction, authority, or limitations.” 5 U.S.C. § 706(2)(A), (C). 46. In the January 20 Memorandum itself, DHS recognizes the importance of this 90-day deadline. See Ex. B at 4. It commands the Acting Director of ICE to develop guidance on how “to implement this pause” for illegal aliens “who have been ordered removed for 90 days or more.” Id. But the statute does not empower DHS or ICE to alter the 90-day deadline. Instead, it provides that the 90-day period can be suspended based on the actions of the alien, not DHS. See 8 U.S.C. § 1231(a)(1)(C).
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Thus, a 100-day “pause” will necessarily cause violations of Section 1231’s 90-day deadline.
47. Even if forthcoming guidance could eventually fix that problem (it cannot), it would not do so immediately. The January 20 Memorandum will cause DHS to violate Section 1231’s 90-day deadline for some aliens before the February 1 guidance is issued. DHS seems to recognize this issue. It acknowledges that implementing the “pause” for aliens “who have been ordered removed for 90 days or more” presents a problem. Ex. B at 4. That is why it asked for the February 1 guidance on new “disposition[s] for individual who have been ordered removed for 90 days or more.” Id. But DHS nevertheless intends to implement the January 20 Memorandum for 10 days before the February 1 guidance comes out.
48. The January 20 Memorandum is an agency action reviewable under the APA. See 5 U.S.C. § 701(a). Defendants cannot identify any “clear and convincing evidence of legislative intention to preclude review” of the January 20 Memorandum. Japan Whaling Ass’n v. Am. Cetacean Soc’y, 478 U.S. 221, 230 n.4 (1986).
49. A statute precludes courts from hearing certain claims “on behalf of any alien arising from the decision or action . . . to commence proceedings, adjudicate cases, or execute removal orders,” 8 U.S.C. § 1252(g), but it does not apply here. Texas is not suing “on behalf of any alien.” Id.; see also Texas v. United States, 809 F.3d 134, 164 (5th Cir. 2015).
COUNT III Failure to Take Care that the Laws be Faithfully Executed 50. Plaintiff incorporates by reference all preceding paragraphs.
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51. The Constitution requires the President to “take Care that the Laws be faithfully executed.” U.S. Const. art. II, § 3.
52. This constitutional limitation is binding on agencies and officers exercising executive power. See U.S. Const. art. II, § 1, cl. 1 (vesting “[t]he executive Power” in the President).
53. The January 20 Memorandum is unconstitutional because it directs executive officials not to enforce federal law.
54. The January 20 Memorandum is not a proper exercise of “prosecutorial discretion.” It does not address whether DHS should spend resources to seek the removal of a particular illegal alien. Instead, the January 20 Memorandum directs DHS to disregard final orders of removal that DHS has already secured. See Ex. B at 3.
55. Moreover, the January 20 Memorandum applies categorically. It does not allow for individualized consideration of particular illegal aliens. Instead, it suspends removal for the vast majority of illegal aliens without any consideration for individual circumstances. See Ex. B at 3. Indeed, the Memorandum requires individualized consideration for immigration officials to enforce the laws in narrow circumstances, creating a default position of non-enforcement. This blanket presumption against enforcing a law violates the constitutional duty of faithful execution.
56. Unconstitutional agency action or inaction violates the APA. See 5 U.S.C. § 706.
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57. This constitutional violation is also actionable independent of the APA. Federal courts have long exercised the power to enjoin federal officers from violating the Constitution. See Armstrong v. Exceptional Child Center, Inc., 575 U.S. 320, 327– 28 (2015) (discussing “a long history of judicial review of illegal executive action, tracing back to England”).
COUNT IV Arbitrary and Capricious Agency Action 58. Plaintiff incorporates by reference all preceding paragraphs. 59. The APA prohibits agency actions that are “arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law.” 5 U.S.C. § 706(2)(A). 60. DHS has previously recognized the importance of removing illegal aliens subject to a final order of removal. See, e.g., Ex. A § II. Indeed, it committed to “enforcing the immigration laws of the United States to prohibit the entry into, and promote the return or removal from, the United States of inadmissible and removable aliens.” Id. § III.A.1.a. 61. The January 20 Memorandum represents a sharp departure from DHS’s previous policy. Because it does not sufficiently explain that sudden departure, the January 20 Memorandum is arbitrary and capricious. 62. DHS ignored the harms that pausing removals will cause. The January 20 Memorandum did not analyze those costs. Failing to consider important costs of a new policy renders that policy arbitrary and capricious. See Michigan v. EPA, 135 S. Ct. 2699, 2706 (2015) (“[A]gency action is lawful only if it rests ‘on a consideration of the relevant factors.’ ”).
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63. The January 20 Memorandum also failed to consider alternative approaches that would allow at least some additional removals to continue. The Supreme Court recently held that a DHS immigration action was arbitrary and capricious because it was issued “‘without any consideration whatsoever’ of a [more limited] policy.” Dep’t of Homeland Sec. v. Regents of the Univ. of Cal., 140 S. Ct. 1891, 1912 (2020) (quoting Motor Vehicle Mfrs. Ass’n of U.S., Inc. v. State Farm Mut. Auto. Ins. Co., 463 U.S. 29, 51 (1983)).
64. Even if there were some way to explain or justify DHS’s decision, it would be irrelevant because DHS did not provide any such explanation or justification in the January 20 Memorandum. See SEC v. Chenery Corp., 318 U.S. 80, 87 (1943) (“The grounds upon which an administrative order must be judged are those upon which the record discloses that its action was based.”).
COUNT IV Failure to Follow the Requirements of Notice-and-Comment Rulemaking
65. Plaintiff incorporates by reference all preceding paragraphs. 66. The January 20 Memorandum is a substantive or legislative rule that required notice-and-comment rulemaking under the APA. See 5 U.S.C. § 553. It is not exempt from the APA’s notice-and-comment requirements as an interpretive rule, a general statement of policy, or a rule of agency organization, procedure, or practice. See id. § 553(b)(A). 67. Because DHS failed to use notice-and-comment procedures, the January 20 Memorandum is invalid. See 5 U.S.C. § 706.
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COUNT V Failure to Promote the Removal of Illegal Aliens 68. Plaintiff incorporates by reference all preceding paragraphs. 69. The January 20 Memorandum violates the Agreement by preventing DHS from “enforcing the immigration laws of the United States to . . . promote the return or removal from[] the United States of inadmissible and removable aliens.” Ex. A § III.A.1.a. 70. The January 20 Memorandum is “arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law.” 5 U.S.C. § 706(2)(A). 71. The January 20 Memorandum exceeds the authority DHS can delegate to Acting Secretary Pekoske and is therefore ultra vires. 72. As a result of the January 20 Memorandum, Texas “will be irreparably damaged and will not have an adequate remedy at law.” Ex. A § VI. Texas is therefore “entitled . . . to injunctive relief . . . to enforce [DHS’s] obligations” under the Agreement. Ex. A § VI.
V. PRAYER FOR RELIEF Wherefore, Plaintiffs pray the Court:
a. Hold unlawful and set aside the January 20 Memorandum; b. Declare that the January 20 Memorandum is unlawful; c. Issue preliminary and permanent injunctive relief enjoining Defendants
from enforcing or implementing the January 20 Memorandum; d. Postpone the effective date of the January 20 Memorandum; e. Award Texas the costs of this action and reasonable attorney’s fees; and
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Respectfully submitted this the 22nd day of January, 2021, KEN PAXTON Attorney General of Texas BRENT WEBSTER First Assistant Attorney General PATRICK K. SWEETEN Associate Deputy Attorney General for Special Litigation /s/ William T. Thompson WILLIAM T. THOMPSON Special Counsel Special Litigation Unit Attorney-in-Charge Texas Bar No. 24088531 Southern District of Texas Bar No. 3053077 Special Litigation Division P.O. Box 12548 Austin, Texas 78711-2548 Phone: (512) 936-2567 Fax: (512) 936-0545 Will.Thompson@oag.texas.gov Counsel for the State of Texas
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 U.S. District Court SOUTHERN DISTRICT OF TEXAS (Victoria) CIVIL DOCKET FOR CASE #: 6:21-cv-00003

Create an Alert for This Case on RECAP

State of Texas v. United States of America et al Assigned to: Judge Drew B Tipton Cause: 05:551 Administrative Procedure Act

Date Filed: 01/22/2021 Jury Demand: None Nature of Suit: 899 Other Statutes: Administrative Procedures Act/Review or Appeal of Agency Decision Jurisdiction: U.S. Government Defendant

Plaintiff State of Texas

represented by Todd Lawrence Disher Office of the Attorney General of Texas 209 W 14th St 8th Floor Austin, TX 78701 512-936-0677 Email: todd.disher@oag.texas.gov LEAD ATTORNEY ATTORNEY TO BE NOTICED

Patrick K Sweeten Office of the Attorney General PO Box 12548 Austin, TX 78711-2548 512-936-1307 Email: Patrick.Sweeten@oag.texas.gov ATTORNEY TO BE NOTICED

Ryan Daniel Walters Office of the Attorney General of Texas Special Counsel Unit P. O. Box 12548 MC-009 Austin, TX 78711-2548 512-936-2714

V. Defendant United States of America

Fax: 512-457-4410 Email: ryan.walters@oag.texas.gov ATTORNEY TO BE NOTICED
William Thomas Thompson Office of the Attorney General Special Litigation Unit P.O. Box 12548 (MC-076) Austin, TX 78711-2548 512-936-2567 Email: will.thompson@oag.texas.gov ATTORNEY TO BE NOTICED
represented by Adam David Kirschner USDOJ, Civil Division 1100 L St. NW 20 Massachusetts Ave., N.W. Room 7126 Washington, DC 20530 2023539265 Fax: 202-616-8470 Email: adam.kirschner@usdoj.gov PRO HAC VICE ATTORNEY TO BE NOTICED
Brian C Rosen-Shaud US Dept of Justice 1100 L St NW Washington, DC 20530 202-305-7666 Email: brian.c.rosenshaud@usdoj.gov ATTORNEY TO BE NOTICED
Daniel David Hu Office of the US Attorneys Office 1000 Louisiana Ste 2300 Houston, TX 77002 713-567-9518 Fax: 713-718-3303

Defendant David Pekoske Acting Secretary of the United States Department of Homeland Security, in his official capacity
Defendant United States Department of Homeland Security

Email: daniel.hu@usdoj.gov ATTORNEY TO BE NOTICED
Michael F Knapp US Department of Justice Civil Division, Federal Programs Branch 1100 L St. NW Washington, DC 20530 202-514-2071 Email: michael.f.knapp@usdoj.gov ATTORNEY TO BE NOTICED
represented by Adam David Kirschner (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Brian C Rosen-Shaud (See above for address) ATTORNEY TO BE NOTICED
Michael F Knapp (See above for address) ATTORNEY TO BE NOTICED
represented by Michael F Knapp (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Adam David Kirschner (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Brian C Rosen-Shaud (See above for address) ATTORNEY TO BE NOTICED
Daniel David Hu (See above for address) ATTORNEY TO BE NOTICED

Defendant Troy Miller Senior Official Performing the Duties of the Commissioner of U.S. Customs and Border Protection, in his official capacity
Defendant U.S. Customs and Border Protection
Defendant Tae Johnson Acting Director of U.S. Immigration and Customs Enforcement, in his official capacity

represented by Adam David Kirschner (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Brian C Rosen-Shaud (See above for address) ATTORNEY TO BE NOTICED
Michael F Knapp (See above for address) ATTORNEY TO BE NOTICED
represented by Michael F Knapp (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Adam David Kirschner (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Brian C Rosen-Shaud (See above for address) ATTORNEY TO BE NOTICED
Daniel David Hu (See above for address) ATTORNEY TO BE NOTICED
represented by Adam David Kirschner (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Brian C Rosen-Shaud (See above for address) ATTORNEY TO BE NOTICED
Michael F Knapp

Defendant U.S. Immigration and Customs Enforcement
Defendant Tracy Renaud Senior Official Performing the Duties of the Director of the U.S. Citizenship and Immigration Services, in her official capacity
Defendant U.S. Citizenship and Immigration Services

(See above for address) ATTORNEY TO BE NOTICED
represented by Michael F Knapp (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Adam David Kirschner (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Brian C Rosen-Shaud (See above for address) ATTORNEY TO BE NOTICED
Daniel David Hu (See above for address) ATTORNEY TO BE NOTICED
represented by Adam David Kirschner (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Brian C Rosen-Shaud (See above for address) ATTORNEY TO BE NOTICED
Michael F Knapp (See above for address) ATTORNEY TO BE NOTICED
represented by Michael F Knapp (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Adam David Kirschner (See above for address) PRO HAC VICE

Amicus ACLU Foundation of Texas, Inc.
Amicus Immigration Reform Law Institute
Amicus Advocates for Victims of Illegal Alien Crime

ATTORNEY TO BE NOTICED
Brian C Rosen-Shaud (See above for address) ATTORNEY TO BE NOTICED
Daniel David Hu (See above for address) ATTORNEY TO BE NOTICED
represented by Andre Ivan Segura ACLU of Texas 5225 Katy Freeway Suite 350 Houston, TX 77007 713-942-8146 Email: asegura@aclutx.org LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Lawrence John Joseph Law Office of Lawrence J. Joseph 1250 Connecticut Ave NW Ste 700-1A Washington, DC 20036 Email: ljoseph@larryjoseph.com LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Lorraine Woodwark Attorneys United for a Secure America (AUSA) 25 Massachusetts Ave NW Ste. 335 Washington, DC 20001 202-591-0962 Email: ausa@irli.org ATTORNEY TO BE NOTICED
Walter S Zimolong Zimolong, LLC 353 West Lancaster Ave, Ste 300

Amicus State of New York
V. Intervenor FIEL Houston

Wayne, PA 19087 215-665-0842 PRO HAC VICE ATTORNEY TO BE NOTICED
represented by Morenike Fajana New York State Office of the Atty General 28 Liberty St 23rd Floor New York, NY 10005 212-416-6134 PRO HAC VICE ATTORNEY TO BE NOTICED
Steven C Wu New YorkState Office of the Atty General 28 Liberty St 23rd Floor New York, NY 10005 212-416-6312 ATTORNEY TO BE NOTICED
represented by Andre Ivan Segura (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Cody Wofsy American Civil Liberties Union Immigrants' Rights Project 39 Drumm Street San Francisco, CA 94111 415-343-0785 Email: cwofsy@aclu.org ATTORNEY TO BE NOTICED
Kathryn Huddleston ACLU Foundation of Texas Inc 5225 Katy Fwy

Intervenor
Refugee and Immigrant Center for Education and Legal Services

Suite 350 Houston, TX 77007 346-331-7123 Email: khuddleston@aclutx.org PRO HAC VICE ATTORNEY TO BE NOTICED
Michael K.T. Tan American Civil Liberties Union Foundation 125 Broad Street 18th Floor New York, NY 10004 347-714-0740 Email: mtan@aclu.org ATTORNEY TO BE NOTICED
Noor Zafar American Civil Liberties Union Foundation 125 Broad St 18th Floor New York, NY 10004 212-549-2500 Email: nzafar@aclu.org PRO HAC VICE ATTORNEY TO BE NOTICED
Spencer Amdur ACLU Foundation Immigrants' Rights Project 39 Drumm Street San Francisco, CA 94111 415-343-0770 Email: samdur@aclu.org ATTORNEY TO BE NOTICED
represented by Andre Ivan Segura (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Cody Wofsy (See above for address) ATTORNEY TO BE NOTICED

Kathryn Huddleston (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Michael K.T. Tan (See above for address) ATTORNEY TO BE NOTICED
Noor Zafar (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Spencer Amdur (See above for address) ATTORNEY TO BE NOTICED

Date Filed # Docket Text

01/22/2021 1 COMPLAINT against All Defendants (Filing fee $ 402 receipt number

0541-25845607) filed by State of Texas. (Attachments: # 1 Exhibit A,

# 2 Exhibit B, # 3 Exhibit C, # 4 Civil Cover Sheet)(Thompson, William) (Entered: 01/22/2021)

01/22/2021 2 MOTION for Temporary Restraining Order by State of Texas, filed.

Motion Docket Date 2/12/2021. (Attachments: # 1 Exhibit A, # 2

Exhibit B, # 3 Exhibit C, # 4 Exhibit D, # 5 Exhibit E,

# 6 Proposed Order)(Thompson, William) (Entered: 01/22/2021)

01/22/2021

3 NOTICE of Setting. Parties notified. Motion Hearing set for 1/22/2021 at 04:00 PM before Judge Drew B Tipton, filed. All parties to appear by Zoom. Join ZoomGov Meeting (New link for the month of January):https://www.zoomgov.com/j/1610093418?pwd=SWY3VnQ4Nnl kOE1nbkJOQ3M3VWpqQT09 Dial by your location +1 669 254 5252 US (San Jose) +1 646 828 7666 US (New York) Meeting ID: 161 009 3418 Passcode: 714482Per L.R. 83.7 Except by leave of the presiding judge, no photo- or electro-mechanical means of recordation or transmission of court proceedings is permitted. (KelliePapaioannouadi, 2) (Entered: 01/22/2021)

01/22/2021

Minute Entry for proceedings held before Judge Drew B Tipton. MOTION HEARING held on 1/22/2021. Pending Motion for Temporary Restraining

Order 2 discussed. Arguments heard. The Court takes this motion under advisement. Appearances:Patrick Sweeten, Adam Kirschner, Dan Hu, Brian Rosen-Shaud. William Thomas Thompson.(Digital # 4:015:46)(ERO:Annette Martinez), filed.(KelliePapaioannou, 2) (Entered: 01/22/2021)

01/22/2021 4 MOTION for Leave to File Amicus Brief by ACLU Foundation of Texas,

Inc., filed. Motion Docket Date 2/12/2021. (Attachments: # 1 Exhibit

Amicus Brief, # 2 01/22/2021)

Proposed Order)(Segura, Andre) (Entered:

01/23/2021

5 NOTICE of Appearance by Daniel David Hu on behalf of U.S. Citizenship and Immigration Services, U.S. Customs and Border Protection, U.S. Immigration and Customs Enforcement, United States Department of Homeland Security, United States of America, filed. (Hu, Daniel) (Entered: 01/23/2021)

01/24/2021 6 ADVISORY by State of Texas, filed.(Sweeten, Patrick) (Entered: 01/24/2021)

01/24/2021 01/24/2021
01/24/2021

7 NOTICE of Setting. Parties notified. Telephone Conference set for 1/25/2021 at 08:00 AM before Judge Drew B Tipton, filed. Telephonic Conference Instructions will be emailed to all parties. (KelliePapaioannouadi, 2) (Entered: 01/24/2021)
Conference set for 1/25/2021 at 8:00 AM to be held by Zoom.https://www.zoomgov.com/j/1610093418?pwd=SWY3VnQ4NnlkO E1nbkJOQ3M3VWpqQT09 Dial by your location +1 669 254 5252 US (San Jose) +1 646 828 7666 US (New York) Meeting ID: 161 009 3418 Passcode: 714482Per L.R. 83.7 Except by leave of the presiding judge, no photo- or electro-mechanical means of recordation or transmission of court proceedings is permitted. ***, filed. (KelliePapaioannou, 2) (Entered: 01/24/2021)
8 RESPONSE in Opposition to 2 MOTION for Temporary Restraining Order, filed by U.S. Citizenship and Immigration Services, U.S. Customs and Border Protection, U.S. Immigration and Customs Enforcement, United States Department of Homeland Security, United States of

America. (Attachments: # 1 Proposed Order)(Hu, Daniel) (Entered: 01/24/2021)

01/25/2021

9 RESPONSE to 6 Advisory , filed by U.S. Citizenship and Immigration Services, U.S. Customs and Border Protection, U.S. Immigration and Customs Enforcement, United States Department of Homeland Security, United States of America. (Hu, Daniel) (Entered: 01/25/2021)

01/25/2021

10 NOTICE Certificate of Service re: 8 Response in Opposition to Motion, by U.S. Citizenship and Immigration Services, U.S. Customs and Border Protection, U.S. Immigration and Customs Enforcement, United States Department of Homeland Security, United States of America, filed. (Hu, Daniel) (Entered: 01/25/2021)

01/25/2021

Minute Entry for proceedings held before Judge Drew B Tipton. ZOOM

HEARING held on 1/25/2021. Regarding Advisory 6 . The Court instructs Defense Counsel to submit a copy of the email referenced in the Advisory (Dkt. 6) and to preserve any evidence, emails, texts, instant messages or any other communication from January 22, 2021 forward related to the release of individuals in custody that were subject to an Order of Removal. Defense Counsel is further instructed to verify and advise the Court whether the only individuals in custody that were subject to an Order of Removal that have been released since January 22, 2021 were pursuant to the California litigation referenced in (Dkt. #9). Defense Counsel is further instructed to advise the Court of the number of individuals in custody that were subject to an Order of Removal who have been released from custody in the United States since Friday January 22, 2021 and the locations from which they were released. Appearances:Adam Kirschner. William Thomas Thompson, Patrick K Sweeten, Daniel David Hu.(Digital # 8:01-8:35)(ERO:Annette Martinez), filed.(KelliePapaioannou, 2) (Entered: 01/25/2021)

01/25/2021

11 AO 435 TRANSCRIPT REQUEST by USA for Transcript of Motion Hearing on 1/22/21 before Judge Tipton and Hearing on 1/25/21 before Judge Tipton. Daily (24 hours) turnaround requested. Court Reporter/Transcriber: Judicial Transcribers of Texas, filed. (Hu, Daniel)Electronically forwarded to Judicial Transcribers of Texas 1/25/2021. Estimated Transcript Completion Date: 1/26/2021. Entered on 1/25/2021 (amartinez, 2). (Entered: 01/25/2021)

01/25/2021 12 ORDER granting 4 Motion for Leave to File Amicus Brief.(Signed by Judge Drew B Tipton) Parties notified.(KelliePapaioannou, 2) (Entered: 01/25/2021)

01/25/2021 13 AMICUS BRIEF in Support of Defendants by ACLU Foundation of Texas, Inc., filed.(KelliePapaioannou, 2) (Entered: 01/25/2021)

01/25/2021 14 NOTICE of filing exhibit by U.S. Citizenship and Immigration Services, U.S. Customs and Border Protection, U.S. Immigration and Customs Enforcement, United States Department of Homeland Security, United

States of America, filed. (Attachments: # 1 (Entered: 01/25/2021)

Exhibit)(Hu, Daniel)

01/26/2021 15 AO 435 TRANSCRIPT REQUEST by Patrick K. Sweeten for Transcript of Motion hearing on 01/22/21 before Judge Tipton and Miscellaneous hearing on 01/25/21 before Judge Tipton. Daily (24 hours) turnaround requested. Court Reporter/Transcriber: Judicial Transcribers of Texas, filed. (Sweeten, Patrick) Electronically forwarded to Judicial Transcribers of Texas on 1/26/2021 (amartinez, 2). (Entered: 01/26/2021)

01/26/2021

16 ORDER Granting 2 Motion for Temporary Restraining Order. The Court Orders parties to propose a briefing schedule no later than Thursday, January 28, 2021 at 12:00 p.m.(Signed by Judge Drew B Tipton) Parties notified.(KelliePapaioannou, 2) (Entered: 01/26/2021)

01/26/2021 17 TRANSCRIPT re: Motion for Temporary Restraining Order (Via Zoom) held on January 22, 2021 before Judge Drew B Tipton. Court Reporter/Transcriber Judicial Transcribers of Texas, LLC. Ordering Party Daniel Hu Release of Transcript Restriction set for 4/26/2021., filed. (mahenry, ) (Entered: 01/26/2021)

01/26/2021

18 NOTICE re: Miscellaneous Hearing,,,, by U.S. Citizenship and Immigration Services, U.S. Customs and Border Protection, U.S. Immigration and Customs Enforcement, United States Department of Homeland Security, United States of America, filed. (Hu, Daniel) (Entered: 01/26/2021)

01/26/2021 19 TRANSCRIPT re: Motion Hearing (Via Zoom) held on January 25, 2021 before Judge Drew B Tipton. Court Reporter/Transcriber Judicial Transcribers of Texas, LLC. Ordering Party Daniel Hu Release of Transcript Restriction set for 4/26/2021., filed. (mahenry, ) (Entered: 01/26/2021)

01/27/2021 20 Notice of Filing of Official Transcript as to 19 Transcript, 17 Transcript,. Party notified, filed. (BrittanyFoil, 6) (Entered: 01/27/2021)

01/27/2021 21 MOTION for Adam Kirschner to Appear Pro Hac Vice by U.S. Citizenship and Immigration Services, U.S. Customs and Border Protection, U.S. Immigration and Customs Enforcement, United States Department of Homeland Security, United States of America, filed. Motion Docket Date 2/17/2021. (Hu, Daniel) (Entered: 01/27/2021)
01/27/2021 22 MOTION for Brian C. Rosen-Shaud to Appear Pro Hac Vice by U.S. Citizenship and Immigration Services, U.S. Customs and Border Protection, U.S. Immigration and Customs Enforcement, United States Department of Homeland Security, United States of America, filed. Motion Docket Date 2/17/2021. (Hu, Daniel) (Entered: 01/27/2021)
01/27/2021 23 ORDER granting 21 Motion for Adam Kirschner to Appear Pro Hac Vice.(Signed by Judge Drew B Tipton) Parties notified.(fcarbia, 2) (Entered: 01/27/2021)
01/27/2021 24 ORDER granting 22 Motion for Brian C. Rosen-Shaud to Appear Pro Hac Vice.(Signed by Judge Drew B Tipton) Parties notified.(fcarbia, 2) (Entered: 01/27/2021)
01/27/2021 25 MOTION for Lawrence J. Joseph to Appear Pro Hac Vice by Immigration Reform Law Institute, filed. Motion Docket Date 2/17/2021. (Joseph, Lawrence) (Entered: 01/27/2021)
01/27/2021 26 NOTICE of Appearance by Adam Kirschner on behalf of Tae Johnson, Troy Miller, David Pekoske, Tracy Renaud, U.S. Citizenship and Immigration Services, U.S. Customs and Border Protection, U.S. Immigration and Customs Enforcement, United States Department of Homeland Security, United States of America, filed. (Kirschner, Adam) (Entered: 01/27/2021)
01/27/2021 27 ORDER granting 25 MOTION for Lawrence J. Joseph to Appear Pro Hac Vice (Signed by Judge Drew B Tipton) Parties notified.(legarza, 2) (Entered: 01/28/2021)

01/28/2021

28 EMERGENCY MOTION, MOTION to Intervene( Motion Docket Date 2/18/2021.) by FIEL Houston, Refugee and Immigrant Center for Education and Legal Services, filed. (Attachments: # 1 Exhibit Declaration of Cesar Espinosa, # 2 Exhibit Declaration of Michelle Garza, # 3 Exhibit Proposed Answer, # 4 Proposed Order)(Segura, Andre) (Entered: 01/28/2021)

01/28/2021 29 NOTICE of Appearance by Brian C. Rosen-Shaud on behalf of Tae Johnson, Troy Miller, David Pekoske, Tracy Renaud, U.S. Citizenship and Immigration Services, U.S. Customs and Border Protection, U.S. Immigration and Customs Enforcement, United States Department of

Homeland Security, United States of America, filed. (Rosen-Shaud, Brian) (Entered: 01/28/2021)

01/28/2021

30 STATEMENT on Briefing Schedule and Discovery re: 16 Order on Motion for Temporary Restraining Order by Tae Johnson, Troy Miller, David Pekoske, Tracy Renaud, U.S. Citizenship and Immigration Services, U.S. Customs and Border Protection, U.S. Immigration and Customs Enforcement, United States Department of Homeland Security, United States of America, filed.(Kirschner, Adam) (Entered: 01/28/2021)

01/28/2021 31 ADVISORY by State of Texas, filed. (Attachments: # 1
Order)(Sweeten, Patrick) (Entered: 01/28/2021)

Proposed

01/28/2021

32 NOTICE of Setting. Parties notified. Status Conference set for 1/29/2021 at 11:00 AM before Judge Drew B Tipton, filed. All Parties to appear by ZOOM. Zoom link will be emailed to parties. Dial in instructions for the conference can be accessed within the High Profile Hearings with Public Access link at https://www.txs.uscourts.gov/ Per L.R. 83.7 Except by leave of the presiding judge, no photo- or electro-mechanical means of recordation or transmission of court proceedings is permitted. (KelliePapaioannouadi, 2) (Entered: 01/28/2021)

01/28/2021 33 MOTION for Cody Wofsy to Appear Pro Hac Vice by FIEL Houston, Refugee and Immigrant Center for Education and Legal Services, filed. Motion Docket Date 2/18/2021. (Segura, Andre) (Entered: 01/28/2021)

01/28/2021 34 MOTION for Kathryn Huddleston to Appear Pro Hac Vice by FIEL Houston, Refugee and Immigrant Center for Education and Legal Services, filed. Motion Docket Date 2/18/2021. (Segura, Andre) (Entered: 01/28/2021)

01/28/2021 35 MOTION for Spencer Amdur to Appear Pro Hac Vice by FIEL Houston, Refugee and Immigrant Center for Education and Legal Services, filed. Motion Docket Date 2/18/2021. (Segura, Andre) (Entered: 01/28/2021)

01/28/2021 36 MOTION for Omar Jadwat to Appear Pro Hac Vice by FIEL Houston, Refugee and Immigrant Center for Education and Legal Services, filed. Motion Docket Date 2/18/2021. (Segura, Andre) (Entered: 01/28/2021)

01/28/2021 37 MOTION for Noor Zafar to Appear Pro Hac Vice by FIEL Houston, Refugee and Immigrant Center for Education and Legal Services, filed. Motion Docket Date 2/18/2021. (Segura, Andre) (Entered: 01/28/2021)

01/28/2021 38 MOTION for Michael Tan to Appear Pro Hac Vice by FIEL Houston, Refugee and Immigrant Center for Education and Legal Services, filed. Motion Docket Date 2/18/2021. (Segura, Andre) (Entered: 01/28/2021)

01/28/2021 39 NOTICE of Appearance by Todd Lawrence Disher on behalf of State of Texas, filed. (Disher, Todd) (Entered: 01/28/2021)

01/29/2021

40 NOTICE re: Miscellaneous Hearing,,,, by Tae Johnson, Troy Miller, David Pekoske, Tracy Renaud, U.S. Citizenship and Immigration Services, U.S. Customs and Border Protection, U.S. Immigration and Customs Enforcement, United States Department of Homeland Security, United

States of America, filed. (Attachments: # 1 Adam) (Entered: 01/29/2021)

Affidavit)(Kirschner,

01/29/2021 41 AO 435 TRANSCRIPT REQUEST by USA for Transcript of Miscellaneous Hearing, 01/29/21, Judge Tipton. 3-Day turnaround requested. Court Reporter/Transcriber: Judicial Transcribers of Texas, filed. (Hu, Daniel) Audio and Log notes electronically uploaded to Judicial Transcribers on 1/29/21 at 4:34 pm by fc. Estimated completion date is: Feb 1, 2021. (Entered: 01/29/2021)

01/29/2021 42 MOTION for Michael F. Knapp to Appear Pro Hac Vice by Tae Johnson, Troy Miller, David Pekoske, Tracy Renaud, U.S. Citizenship and Immigration Services, U.S. Customs and Border Protection, U.S. Immigration and Customs Enforcement, United States Department of Homeland Security, United States of America, filed. Motion Docket Date 2/19/2021. (Rosen-Shaud, Brian) (Entered: 01/29/2021)

01/29/2021

Minute Entry for proceedings held before Judge Drew B Tipton. STATUS

CONFERENCE held on 1/29/2021. Motion to Intervene 28 discussed. Responses to motion due by Wednesday, February 3, 2021. Discovery issues addressed. The parties agree and the Court limits interrogatories to seven, requests for admissions to five and no requests for production. Parties may attach any evidence to supplemental briefings. Primary briefing is limited to 40 pages. Replies limited to 25 pages. Times New Roman font 12pt to be used for the body and Times New Roman 11pt to be used for footnotes. The Court discourages excessive use of footnotes. The Court orders the United States to produce the Administrative Record by 2/3/2021. Briefing schedule to be entered. Appearances:Cody Wofsy. Andre Ivan Segura, Brian C Rosen-Shaud, Adam David Kirschner, Todd Lawrence Disher, Patrick K Sweeten, Daniel David Hu.(Digital # 11:0312:46)(ERO:Frenchie Carbia), filed.(KelliePapaioannou, 2) (Entered: 01/29/2021)

01/29/2021 43 AO 435 TRANSCRIPT REQUEST by Todd Lawrence Disher for Transcript of Miscellaneous Hearing on 01/29/21 before Judge Drew B. Tipton. 3-Day turnaround requested. Court Reporter/Transcriber: Judicial Transcribers of Texas, filed. (Disher, Todd) (Entered: 01/29/2021)

01/30/2021

44 SCHEDULING ORDER Defendant's production of Administrative Record due by 2/3/2021. Parties responses to proposed intervenors (optional) due by 2/3/2021. Plaintiff's motion for Preliminary Injunction due by 2/5/2021. Discovery due by 2/10/2021. Defendant's Response due by 2/12/2021. Plaintiff's reply due by 2/16/2021 Preliminary Injunction Hearing set for 2/19/2021 before Judge Drew B Tipton(Signed by Judge Drew B Tipton) Parties notified.(KelliePapaioannou, 2) (Entered: 01/30/2021)

02/01/2021 45 ORDER granting 34 Motion for Kathryn Huddleston to Appear Pro Hac Vice.(Signed by Judge Drew B Tipton) Parties notified.(RochelleLimon, 2) (Entered: 02/01/2021)

02/01/2021 46 ORDER granting 42 Motion for Michael F. Knapp to Appear Pro Hac Vice.(Signed by Judge Drew B Tipton) Parties notified.(RochelleLimon, 2) (Entered: 02/01/2021)

02/01/2021 47 ORDER granting 38 Motion for Michael K.T. Tan to Appear Pro Hac Vice.(Signed by Judge Drew B Tipton) Parties notified.(RochelleLimon, 2) (Entered: 02/01/2021)

02/01/2021 48 ORDER granting 37 Motion for Noor Zafar to Appear Pro Hac Vice.(Signed by Judge Drew B Tipton) Parties notified.(RochelleLimon, 2) (Entered: 02/01/2021)

02/01/2021 49 ORDER granting 33 Motion for Cody Wofsy to Appear Pro Hac Vice.(Signed by Judge Drew B Tipton) Parties notified.(RochelleLimon, 2) (Entered: 02/01/2021)

02/01/2021 50 ORDER granting 35 Motion for Spencer Amdur to Appear Pro Hac Vice.(Signed by Judge Drew B Tipton) Parties notified.(RochelleLimon, 2) (Entered: 02/01/2021)

02/01/2021 51 NOTICE TO THE PARTIES, filed. (KelliePapaioannou, 2) (Entered: 02/01/2021)

02/01/2021 52 TRANSCRIPT re: Status Conference / Scheduling Conference (Via Zoom) held on January 29, 2021 before Judge Drew B Tipton. Court Reporter/Transcriber Judicial Transcribers of Texas, LLC. Ordering Party Daniel Hu Release of Transcript Restriction set for 5/3/2021., filed. (mahenry, ) (Entered: 02/01/2021)

02/02/2021 53 Notice of Filing of Official Transcript as to 52 Transcript,. Party notified, filed. (BrittanyFoil, 6) (Entered: 02/02/2021)

02/03/2021 54 MOTION for Lorraine Woodwark to Appear Pro Hac Vice by Advocates for Victims of Illegal Alien Crime, filed. Motion Docket Date 2/24/2021. (CarrieDickie, 6) (Entered: 02/03/2021)

02/03/2021 55 MOTION for Walter S Zimolong to Appear Pro Hac Vice by Advocates for Victims of Illegal Alien Crime, filed. Motion Docket Date 2/24/2021. (CarrieDickie, 6) (Entered: 02/03/2021)

02/03/2021 56 NOTICE of Appearance by Ryan D. Walters on behalf of State of Texas, filed. (Walters, Ryan) (Entered: 02/03/2021)

02/03/2021

57 RESPONSE in Opposition to 28 EMERGENCY MOTION MOTION to Intervene, filed by State of Texas. (Attachments: # 1 Proposed Order)(Disher, Todd) (Entered: 02/03/2021)

02/03/2021 58 AO 435 TRANSCRIPT REQUEST by Andre Segura for Transcript of Motion hearing on 01/22/21 before Judge Tipton and Miscellaneous hearing on 01/25/21 before Judge Tipton. 3-Day turnaround requested. Court Reporter/Transcriber: Judicial Transcribers of Texas, filed. (Segura, Andre) Electronically forwarded to Judicial Transcribers of Texas on 2/4/2021 (amartinez, 2). (Entered: 02/03/2021)

02/03/2021

59 NOTICE of Administrative Record by Tae Johnson, Troy Miller, David Pekoske, Tracy Renaud, U.S. Citizenship and Immigration Services, U.S. Customs and Border Protection, U.S. Immigration and Customs Enforcement, United States Department of Homeland Security, United

States of America, filed. (Attachments: # 1 Administrative Record)(Kirschner, Adam) (Entered: 02/03/2021)

02/03/2021 60 ORDER granting 55 Motion for Walter S. Zimolong to Appear Pro Hac Vice.(Signed by Judge Drew B Tipton) Parties notified.(RochelleLimon, 2) (Entered: 02/04/2021)

02/03/2021 61 ORDER granting 54 Motion for Lorraine Woodwark to Appear Pro Hac Vice.(Signed by Judge Drew B Tipton) Parties notified.(vrios, 2) (Entered: 02/04/2021)

02/05/2021 62 MOTION for Preliminary Injunction by State of Texas, filed. Motion Docket Date 2/26/2021. (Attachments: # 1 Proposed Order)(Disher, Todd) (Entered: 02/05/2021)

02/05/2021 63 APPENDIX re: 62

MOTION for Preliminary Injunction by State of

Texas, filed. (Attachments: # 1 Exhibit 1: January 20, 2020 Pekoske

Memorandum, # 2 Exhibit 2: Memorandum of Understanding Between Texas and DHS, # 3 Exhibit 3: DHS 2019 Yearbook; Table 39, # 4 Exhibit 4: ERO Report FY2019, # 5 Exhibit 5: ERO FY2019 Local

Statistics, # 6 Exhibit 6: Decl. of T. Homan, # 7 Exhibit 7: FY2021 ICE Detention Statistics, # 8 Exhibit 8: ICE.gov Homepage, # 9

Exhibit 9: DHS Alien Incarceration Report, Fiscal Year 2017, # 10

Exhibit 10: Decl. of R. Waltz, # 11 Exhibit 11: Decl. of B.

Waybourn, # 12 Exhibit 12: Decl. of L. Lopez, # 13 Exhibit 13:

Decl. of L. Kalakanis, # 14 Exhibit 14: DPS Texas Criminal Illegal

Alien Data, # 15 Exhibit 15: Decl. of R. Vitiello, # 16 Exhibit

16: 2.2.2021 DHS letter to Texas, # 17 Exhibit 17: Gone to Texas, # 18 Exhibit 18: Texas Foreign Born Immigration)(Disher, Todd) (Entered: 02/05/2021)

02/06/2021

64 REPLY in Support of 28 EMERGENCY MOTION MOTION to Intervene, filed by FIEL Houston, Refugee and Immigrant Center for Education and Legal Services. (Segura, Andre) (Entered: 02/06/2021)

02/06/2021

65 ORDER Granting 28 Emergency Motion to Intervene.(Signed by Judge Drew B Tipton) Parties notified.(KelliePapaioannou, 2) (Entered: 02/06/2021)

02/06/2021

66 ANSWER to 1 Complaint by Intervenors FIEL Houston, Refugee and Immigrant Center for Education and Legal Services, filed.(KelliePapaioannou, 2) (Entered: 02/06/2021)

02/08/2021 67 ORDER EXTENDING TEMPORARY RESTRAINING ORDER (Signed by Judge Drew B Tipton) Parties notified.(KelliePapaioannou, 2) (Entered: 02/09/2021)

02/09/2021 68 MOTION for Morenike Fajana to Appear Pro Hac Vice by State of New York, filed. Motion Docket Date 3/2/2021. (BrittanyFoil, 6) (Entered: 02/09/2021)
02/09/2021 69 MOTION for Steven Wu to Appear Pro Hac Vice by State of New York, filed. Motion Docket Date 3/2/2021. (BrittanyFoil, 6) (Entered: 02/09/2021)
02/09/2021 70 ORDER granting 68 Motion for Morenike Fajana to Appear Pro Hac Vice.(Signed by Judge Drew B Tipton) Parties notified.(vrios, 2) (Entered: 02/09/2021)
02/09/2021 71 ORDER granting 69 Motion for Steven C. Wu to Appear Pro Hac Vice.(Signed by Judge Drew B Tipton) Parties notified.(BrittanyPainschab, 2) (Entered: 02/09/2021)
02/09/2021 72 Unopposed MOTION for Leave to File Amicus Brief in Support of Plaintiff by Immigration Reform Law Institute, filed. Motion Docket Date 3/2/2021. (Attachments: # 1 Exhibit Corp Disclosure, # 2 Proposed Order proposed order, # 3 Exhibit Amicus Brief, # 4 Affidavit Declaration)(Joseph, Lawrence) (Entered: 02/09/2021)

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 Case 6:21-cv-00003 Document 1-1 Filed on 01/22/21 in TXSD Page 1 of 10

IN THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF TEXAS
VICTORIA DIVISION

STATE OF TEXAS,

Plaintiff,

Civ. Action No. ___________

v.

The UNITED STATES OF AMERICA; DAVID PEKOSKE, Acting Secretary of the United States Department of Homeland Security, in his official capacity; UNITED STATES DEPARTMENT OF HOMELAND SECURITY; TROY MILLER, Senior Official Performing the Duties of the Commissioner of U.S. Customs and Border Protection, in his official capacity; U.S. CUSTOMS AND BORDER PROTECTION; TAE JOHNSON, Acting Director of U.S. Immigration and Customs Enforcement, in his official capacity; U.S. 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; U.S. CITIZENSHIP AND IMMIGRATION SERVICES,

Defendants.

EXHIBIT A

Case 6:21-cv-00003 Document 1-1 Filed on 01/22/21 in TXSD Page 2 of 10
AGREEMENT BETWEEN DEPARTMENT OF HOMELAND SECURITY AND THE STATE OF TEXAS
The parties to this Agreement are on the one hand:
(1) the Department of Homeland Security, (2) U.S. Customs and Border Protection (CBP), (3) U.S. Immigration and Customs Enforcement (ICE), and (4) U.S. Citizenship and Immigration Services (USCIS);1
and on the other hand:
(5) the State of Texas, by and through the Office of the Governor (Texas). I. AUTHORITY
The authorities governing this Agreement include, but are not limited to:
(1) the Immigration Reform and Control Act of 1986, Pub. L. No. 99-603, 100 Stat. 3359, as amended;
(2) the Illegal Immigration Reform and Immigrant Responsibility Act of 1996, Pub. L. No. 104-208, 110 Stat. 3009, as amended;
(3) the Privacy Act, 5 U.S.C. Section 552a, as amended; (4) the Inter-Governmental Cooperation Act, 31 U.S.C. Section 6501, et. seq. as
amended; (5) the Homeland Security Act of 2002, 116 Stat. 2135, 6 U.S.C. Section 101, et seq. as
amended; and (6) the Immigration and Nationality Act, 8 U.S.C. Section 1101, et seq. as amended.
II. PURPOSE AND COMMITMENT
DHS recognizes that Texas, like other States, is directly and concretely affected by changes to DHS rules and policies that have the effect of easing, relaxing, or limiting immigration enforcement. Such changes can impact Texas’s law enforcement, housing, education, employment, commerce, and healthcare needs and budgets. The harm to Texas is particularly acute where its budget has been set months or years in advance and it has no time to adjust its budget to respond to DHS policy changes. Specifically, DHS recognizes that the following actions result in concrete injuries to Texas:
(1) a decrease of any immigration enforcement priorities; (2) a reduction in the number of DHS agents performing immigration enforcement
functions;
1 The Department of Homeland Security, CBP, ICE, and USCIS are collectively referred to in this Agreement as “DHS.” The Department of Homeland Security, CBP, ICE, and USCIS enter into this Agreement individually and collectively, such that termination or removal of one or more of those parties (whether by law or contract) does not terminate this Agreement as to any other parties.

Case 6:21-cv-00003 Document 1-1 Filed on 01/22/21 in TXSD Page 3 of 10
(3) a decrease or pause on returns or removals of removable or inadmissible aliens; (4) a decrease or pause on apprehensions or administrative arrests; (5) relaxation of the standards for granting relief from return or removal, such as
asylum; (6) an increase in releases from detention; (7) a relaxation of the standards for granting release from detention; (8) changes to immigration benefits or eligibility, including work authorization,
discretionary actions, or discretionary decisions; and (9) rules, policies, procedures, and decisions that could result in significant increases
to the number of people residing in a community. At the same time, Texas recognizes that DHS relies on cooperation with Texas and information shared by Texas to carry out DHS’s immigration enforcement functions. Any decrease in a State’s cooperation or information sharing with DHS may result in a decrease in immigration enforcement.
To that end, this Agreement establishes a binding and enforceable commitment between DHS and Texas, in which Texas will provide information and assistance to help DHS perform its border security, legal immigration, immigration enforcement, and national security missions in exchange for DHS’s commitment to consult Texas and consider its views before taking any action, adopting or modifying a policy or procedure, or making any decision that could:
(1) reduce, redirect, reprioritize, relax, or in any way modify immigration enforcement; (2) decrease the number of ICE agents performing immigration enforcement duties; (3) pause or decrease the number of returns or removals of removable or inadmissible
aliens from the country; (4) increase or decline to decrease the number of lawful, removable, or inadmissible
aliens; (5) increase or decline to decrease the number of releases from detention; (6) relax the standards for granting relief from return or removal, such as asylum; (7) relax the standards for granting release from detention; (8) relax the standards for, or otherwise decrease the number of, apprehensions or
administrative arrests; (9) increase, expand, extend, or in any other way change the quantity and quality of
immigration benefits or eligibility for other discretionary actions for aliens; or (10) otherwise negatively impact Texas. In case of doubt, DHS will err on the side of consulting with Texas.
III. RESPONSIBILITIES
A. DHS agrees to:
(1) Utilize its immigration authorities, to the maximum extent possible, to prioritize the protection of the United States and its existing communities. This includes:
Page 2 of 9

Case 6:21-cv-00003 Document 1-1 Filed on 01/22/21 in TXSD Page 4 of 10
a. enforcing the immigration laws of the United States to prohibit the entry into, and promote the return or removal from, the United States of inadmissible and removable aliens;
b. enforcing the immigration laws of the United States to prioritize detention over release of inadmissible and removable aliens;
c. enforcing the immigration laws of the United States to apprehend and administratively arrest inadmissible and removable aliens;
d. eliminating incentives and so-called “pull factors” for illegal immigration; e. limiting eligibility for asylum and other relief from detention, return, or
removal to the statutory criteria; and f. refusing asylum and other relief from detention, return, or removal for those
aliens who pose a danger to the United States, whether due to prior criminal history, the security of the United States, health, or some other bar.
(2) Consult with Texas before taking any action or making any decision that could reduce immigration enforcement, increase the number of removable or inadmissible aliens in the United States, or increase immigration benefits or eligibility for benefits for removable or inadmissible aliens. This includes policies, practices, or procedures which have as their purpose or effect:
a. reducing, redirecting, reprioritizing, relaxing, lessening, eliminating, or in any way modifying immigration enforcement;
b. decreasing the number of ICE agents within Texas’s territorial jurisdiction performing immigration enforcement duties;
c. pausing or decreasing the number of returns or removals of removable or inadmissible aliens from the country;
d. decreasing the number of or criteria for detention of removable or inadmissible aliens from the country;
e. decreasing or pausing apprehensions or administrative arrests; f. increasing or declining to decrease the number of lawful, removable, or
inadmissible aliens residing in the United States; g. increasing, expanding, extending, or in any way changing the quantity or
quality of immigration benefits or eligibility for these benefits or other discretionary actions for aliens; or h. otherwise negatively impacting Texas.
(3) Provide Texas with 180 days’ written notice (in the manner provided for in Section IV of this Agreement) of any proposed action listed in Section III.A.2 and an opportunity to consult and comment on the proposed action. DHS will in good faith consider Texas’s input and provide a detailed written explanation of the reasoning behind any decision to reject Texas’s input before taking any action listed in Section III.A.2. In case of doubt as to whether DHS’s action is implicated by this provision,
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DHS will err on the side of consulting with Texas before taking any such action listed above.
B. Texas agrees to:
Support DHS’s immigration enforcement by honoring “detainer requests” or “requests to hold” issued to Texas by ICE or CBP, and honoring DHS requests for records or information from the Texas Department of Motor Vehicles.
IV. NOTICES
All notices required hereunder shall be given by certified United States mail, postage prepaid return receipt requested, and addressed to the respective parties at their addresses set forth below, or at such other address as any party shall hereafter inform the other party by written notice. All written notices so given shall be deemed effective upon receipt.
Department of Homeland Security Secretary of Homeland Security Washington, D.C. 20528

U.S. Customs and Border Protection Office of the Commissioner 1300 Pennsylvania Ave. NW Washington, D.C. 20229

U.S. Immigration and Customs Enforcement Office of the Director 500 12th Street SW Washington, D.C. 20536

U.S. Citizenship and Immigration Services Office of the Director 5900 Capital Gateway Drive Suitland, Maryland 20746

Texas c/o Greg Abbott, Governor of Texas 1100 San Jacinto Boulevard, 4th Floor Austin, Texas 78701

c/o Ken Paxton, Attorney General 300 West 15th Street Austin, Texas 78711

V. PENALTIES
Texas acknowledges that the information it receives from DHS is governed by the Privacy Act, 5 U.S.C. section 552a(i)(1), and that any person who obtains this information under false pretenses or uses it for any purpose other than as provided for in this Agreement may be subject to civil or criminal penalties.
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VI. INJUNCTIVE RELIEF It is hereby agreed and acknowledged that it will be impossible to measure in money the damage that would be suffered if the parties fail to comply with any of the obligations herein imposed on them and that in the event of any such failure, an aggrieved party will be irreparably damaged and will not have an adequate remedy at law. Any such party shall, therefore, be entitled (in addition to any other remedy to which it may be entitled in law or in equity) to injunctive relief, including specific performance, to enforce such obligations, and if any action should be brought in equity to enforce any of the provisions of this Agreement, none of the parties hereto shall raise the defense that there is an adequate remedy at law. VII. THIRD PARTY LIABILITY Each party to this Agreement shall be solely responsible for its own defense against any claim or action by third parties arising out of or related to the execution or performance of this Agreement, whether civil or criminal, and retains responsibility for the payment of any corresponding liability. Nothing in this Agreement is intended, or should be construed, to create any right or benefit, substantive or procedural, enforceable at law by any non-party to this Agreement against any party, its agencies, officers, or employees. VIII. DISPUTE RESOLUTION DHS and Texas will endeavor to the best of their ability to resolve their disputes informally and through consultation and communication. Disagreements on the interpretation of the provisions of this Agreement that cannot be resolved between the parties should be provided in writing to the authorized officials at both agencies for resolution. If settlement cannot be reached at this level, the disagreement may be adjudicated in a United States District Court located in Texas. IX. CONFLICTS This Agreement constitutes the full agreement on this subject between DHS and Texas. Any inconsistency or conflict between or among the provisions of this Agreement, will be resolved in the following order of precedence: (1) this Agreement and (2) other documents incorporated by reference in this Agreement. Provided, however, that this Agreement shall not void, abrogate, or modify any other agreement between DHS and Texas unless and to such extent as such agreement conflicts with this Agreement.
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Case 6:21-cv-00003 Document 1-1 Filed on 01/22/21 in TXSD Page 7 of 10
X. SEVERABILITY The Parties agree that if a binding determination is made that any term of this Agreement is unenforceable, such unenforceability shall not affect any other provision of this Agreement, and the remaining terms of this Agreement shall, unless prohibited by law, remain effective as if such unenforceable provision was never contained in this Agreement. The parties additionally agree that if this Agreement is found to be unenforceable as to one or more of the parties comprising DHS, including the Department of Homeland Security, such unenforceability shall not affect the validity of this Agreement as to the remaining parties and this Agreement shall remain effective as if such party was never a party to this Agreement. XI. ASSIGNMENT Texas may not assign this Agreement, nor may it assign any of its rights or obligations under this Agreement. To the greatest extent possible, this Agreement shall inure to the benefit of, and be binding upon, any successors to DHS and Texas without restriction. XII. WAIVER No waiver by any party of any breach of any provision of this Agreement shall constitute a waiver of any other breach. Failure of any party to enforce at any time, or from time to time, any provision of this Agreement shall not be construed to be a waiver thereof. XIII. EFFECTIVE DATE This Agreement shall be effective immediately when all parties have signed this Agreement. This Agreement shall continue in effect unless modified or terminated in accordance with the provisions of this Agreement. XIV. MODIFICATION This Agreement is subject to periodic review by DHS, its authorized agents or designees, and, if necessary, periodic modification or renewal, consistent with this Agreement’s terms, to assure compliance with current law, policy, and standard operating procedures. This Agreement constitutes the complete Agreement between the parties for its stated purpose, and no modification or addition will be valid unless entered into by mutual consent of all parties evidenced in writing and signed by all parties. Any party may accomplish a unilateral administrative modification to change point-of-contact information. A written bilateral modification (i.e., agreed to and signed by authorized officials of all parties) is required to change any other term of this Agreement.
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XV. TERMINATION Any party may terminate its involvement in this Agreement by submitting a request in writing to the other parties and providing 180 days’ notice of intent to terminate its involvement in this Agreement. The termination will be effective 180 days after the written termination request was submitted or upon a date agreed upon by all parties, whichever is earlier. Termination by one party of its involvement in this Agreement shall not terminate this Agreement as to the remaining parties. XVI. STATUS The foregoing constitutes the full agreement on this subject between DHS and Texas. Nothing in this Agreement may be construed to (1) negate any right of action for a State, local government, other person, or entity affected by this Agreement; or (2) alter the laws of the United States. XVII. KNOWING AND VOLUNTARY ACKNOWLEDGMENT The parties enter into this Agreement voluntarily, without coercion or duress, and fully understand its terms. The parties acknowledge they had an opportunity to review and reflect on this Agreement and have discussed its provisions with their respective counsel, if any. The parties attest they understand the effect of each of the provisions in this Agreement and that it is binding on all parties. XVIII. COUNTERPARTS This Agreement may be executed in counterparts, each of which shall be deemed to be an original, but all of which together shall constitute one agreement. XIX. FORMALIZATION The undersigned represent that they are authorized to execute this Agreement on behalf of CBP, ICE, USCIS, and Texas, respectively. Furthermore, the undersigned execute this Agreement on behalf of CBP, ICE, USCIS, Texas, respectively. [Signatures on the following pages]
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Signature for the Department of Homeland Security DEPARTMENT OF HOMELAND SECURITY

1/8/2021

Kenneth T. Cuccinelli II

Date

Senior Official Performing the Duties of the Deputy Secretary

Signed individually and collectively2

2 “Signed individually and collectively” as used here indicates that the agency is entering into this Agreement both (1) for itself, independently, and (2) along with the other entities that comprise DHS, collectively. Should one agency, for whatever reason, cease to be a party to this Agreement, this Agreement shall still survive for all other parties and be read and interpreted as if the removed party had never been a party to this Agreement.
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Signature for the Office of the Governor of Texas OFFICE OF THE GOVERNOR OF TEXAS

Greg Abbott Governor

December 31, 2020 Date

Signature for the Office of the Attorney General of Texas OFFICE OF THE ATTORNEY GENERAL OF TEXAS

Ken Paxton Attorney General

12/31/2020 Date

Page 9 of 9

 
 Case 6:21-cv-00003 Document 1-2 Filed on 01/22/21 in TXSD Page 1 of 6

IN THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF TEXAS
VICTORIA DIVISION

STATE OF TEXAS,

Plaintiff,

Civ. Action No. ___________

v.

The UNITED STATES OF AMERICA; DAVID PEKOSKE, Acting Secretary of the United States Department of Homeland Security, in his official capacity; UNITED STATES DEPARTMENT OF HOMELAND SECURITY; TROY MILLER, Senior Official Performing the Duties of the Commissioner of U.S. Customs and Border Protection, in his official capacity; U.S. CUSTOMS AND BORDER PROTECTION; TAE JOHNSON, Acting Director of U.S. Immigration and Customs Enforcement, in his official capacity; U.S. 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; U.S. CITIZENSHIP AND IMMIGRATION SERVICES,

Defendants.

EXHIBIT B

Case 6:21-cv-00003 Document 1-2 Filed on 01/22/21 in TXSD Page 2 of 6
Secretary U.S. Department of Homeland Security Washington, DC 20528

January 20, 2021

MEMORANDUM FOR:

Troy Miller Senior Official Performing the Duties of the Commissioner U.S. Customs and Border Protection

Tae Johnson Acting Director U.S. Immigration and Customs Enforcement

Tracey Renaud Senior Official Performing the Duties of the Director U.S. Citizenship and Immigration Services

CC:

Karen Olick

Chief of Staff

FROM:

David Pekoske Acting Secretary

SUBJECT:

Review of and Interim Revision to Civil Immigration

Enforcement and Removal Policies and Priorities

______________________________________________________________________________

This memorandum directs Department of Homeland Security components to conduct a review of policies and practices concerning immigration enforcement. It also sets interim policies during the course of that review, including a 100-day pause on certain removals to enable focusing the Department’s resources where they are most needed. The United States faces significant operational challenges at the southwest border as it is confronting the most serious global public health crisis in a century. In light of those unique circumstances, the Department must surge resources to the border in order to ensure safe, legal and orderly processing, to rebuild fair and effective asylum procedures that respect human rights and due process, to adopt appropriate public health guidelines and protocols, and to prioritize responding to threats to national security, public safety, and border security.

This memorandum should be considered Department-wide guidance, applicable to the activities of U.S. Immigration and Customs Enforcement (ICE), U.S. Customs and Border Protection (CBP), and U.S. Citizenship and Immigration Services (USCIS).

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A. Comprehensive Review of Enforcement Policies and Priorities
The Chief of Staff shall coordinate a Department-wide review of policies and practices concerning immigration enforcement. Pursuant to the review, each component shall develop recommendations to address aspects of immigration enforcement, including policies for prioritizing the use of enforcement personnel, detention space, and removal assets; policies governing the exercise of prosecutorial discretion; policies governing detention; and policies regarding interaction with state and local law enforcement. These recommendations shall ensure that the Department carries out our duties to enforce the law and serve the Department’s mission in line with our values. The Chief of Staff shall provide recommendations for the issuance of revised policies at any point during this review and no later than 100 days from the date of this memo.
The memoranda in the attached appendix are hereby rescinded and superseded.
B. Interim Civil Enforcement Guidelines
Due to limited resources, DHS cannot respond to all immigration violations or remove all persons unlawfully in the United States. Rather, DHS must implement civil immigration enforcement based on sensible priorities and changing circumstances. DHS’s civil immigration enforcement priorities are protecting national security, border security, and public safety. The review directed in section A will enable the development, issuance, and implementation of detailed revised enforcement priorities. In the interim and pending completion of that review, the Department’s priorities shall be:
1. National security. Individuals who have engaged in or are suspected of terrorism or espionage, or whose apprehension, arrest and/or custody is otherwise necessary to protect the national security 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 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 local prisons and jails released on or after the issuance of this memorandum who have been convicted of an “aggravated felony,” as that term is defined in section 101(a) (43) of the Immigration and Nationality Act at the time of conviction, and are determined to pose a threat to public safety.
These priorities shall apply not only to 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 or release; whether to settle, dismiss, appeal, or join in a motion on a case; and whether to grant deferred action or parole. In
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addition, all enforcement and detention decisions shall be guided by DHS’s ability to conduct operations and maintain custody consistent with applicable COVID-19 protocols.
While resources should be allocated to the priorities enumerated above, nothing in this memorandum prohibits the apprehension or detention of individuals unlawfully in the United States who are not identified as priorities herein. In order to ensure appropriate allocation of resources and exercise of prosecutorial discretion, the Acting Director of ICE shall issue operational guidance on the implementation of these priorities. This guidance shall contain a protocol for the Acting Secretary to conduct a periodic review of enforcement actions to ensure consistency with the priorities set forth in this memorandum. This guidance shall also include a process for the Director of ICE to review and approve of any civil immigration enforcement actions against individuals outside of federal, state or local prisons or jails.
These interim enforcement priorities shall go into effect on February 1, 2021 and remain in effect until superseded by revised priorities developed in connection with the review directed in section A.
C. Immediate 100-Day Pause on Removals
In light of the unique circumstances described above, DHS’s limited resources must be prioritized to: (1) provide sufficient staff and resources to enhance border security and conduct immigration and asylum processing at the southwest border fairly and efficiently; and (2) comply with COVID-19 protocols to protect the health and safety of DHS personnel and those members of the public with whom DHS personnel interact. In addition, we must ensure that our removal resources are directed to the Department’s highest enforcement priorities. Accordingly, and pending the completion of the review set forth in section A, I am directing an immediate pause on removals of any noncitizen1 with a final order of removal (except as noted below) for 100 days to go into effect as soon as practical and no later than January 22, 2021.
The pause on removals applies to any noncitizen present in the United States when this directive takes effect with a final order of removal except one who:
1. According to a written finding by the Director of ICE, has engaged in or is suspected of terrorism or espionage, or otherwise poses a danger to the national security of the United States; or
2. Was not physically present in the United States before November 1, 2020; or 3. Has voluntarily agreed to waive any rights to remain in the United States,
provided that he or she has been made fully aware of the consequences of waiver
1 “Noncitizen” as used in this memorandum does not include noncitizen nationals of the United States.
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and has been given a meaningful opportunity to access counsel prior to signing the waiver;2 or 4. For whom the Acting Director of ICE, following consultation with the General Counsel, makes an individualized determination that removal is required by law. No later than February 1, 2021, the Acting Director of ICE shall issue written instructions with additional operational guidance on the further implementation of this removal pause. The guidance shall include a process for individualized review and consideration of the appropriate disposition for individuals who have been ordered removed for 90 days or more, to the extent necessary to implement this pause. The process shall provide for assessments of alternatives to removal including, but not limited to, staying or reopening cases, alternative forms of detention, custodial detention, whether to grant temporary deferred action, or other appropriate action. D. No Private Right Statement These guidelines and priorities are not intended to, do not, and may not be relied upon to create any right or benefit, substantive or procedural, enforceable at law by any party in any administrative, civil, or criminal matter.
2 A voluntary waiver encompasses noncitizens who stipulate to removal as part of a criminal disposition.
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APPENDIX
Department of Homeland Security, Enforcement of the Immigration Laws to Serve the National Interest, Memorandum of February 20, 2017.
U.S. Immigration and Customs Enforcement, Implementing the President’s Border Security and Interior Immigration Enforcement Policies, Memorandum of February 20, 2017.
U.S. Immigration and Customs Enforcement, Guidance to OPLA Attorneys Regarding the Implementation of the President’s Executive Orders and the Secretary’s Directives on Immigration Enforcement, Memorandum of August 15, 2017.
US Citizenship and Immigration Services, Updated Guidance for the Referral of Cases and Issuance of Notices to Appear (NTAs) in Cases Involving Inadmissible and Deportable Aliens, Policy Memorandum of June 28, 2018. (US Citizenship and Immigration Services should revert to the preexisting guidance in Policy Memorandum 602-0050, US Citizenship and Immigration Services, Revised Guidance for the Referral of Cases and Issuance of Notices to Appear (NTAs) in Cases Involving Inadmissible and Removable Aliens, Policy Memorandum of Nov. 7, 2011.)
US Citizenship and Immigration Services, Guidance for the Referral of Cases and Issuance of Notices to Appear (NTAs) When Processing a Case Involving Information Submitted by a Deferred Action for Childhood Arrivals (DACA) Requestor in Connection with a DACA Request or a DACA-Related Benefit Request (Past or Pending) or Pursuing Termination of DACA, Policy Memorandum of June 28, 2018.
U.S. Customs and Border Protection, Executive Orders 13767 and 13768 and the Secretary’s Implementation Directions of February 17, 2017, Memorandum of February 21, 2017.

 
 Case 6:21-cv-00003 Document 1-3 Filed on 01/22/21 in TXSD Page 1 of 4

IN THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF TEXAS
VICTORIA DIVISION

STATE OF TEXAS,

Plaintiff,

Civ. Action No. ___________

v.

The UNITED STATES OF AMERICA; DAVID PEKOSKE, Acting Secretary of the United States Department of Homeland Security, in his official capacity; UNITED STATES DEPARTMENT OF HOMELAND SECURITY; TROY MILLER, Senior Official Performing the Duties of the Commissioner of U.S. Customs and Border Protection, in his official capacity; U.S. CUSTOMS AND BORDER PROTECTION; TAE JOHNSON, Acting Director of U.S. Immigration and Customs Enforcement, in his official capacity; U.S. 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; U.S. CITIZENSHIP AND IMMIGRATION SERVICES,

Defendants.

EXHIBIT C

Case 6:21-cv-00003 Document 1-3 Filed on 01/22/21 in TXSD Page 2 of 4
January 21, 2021
David Pekoske Acting Secretary, Department of Homeland Security Washington, D.C. 20528 ogc@hq.dhs.gov ogcexecsec@hq.dhs.gov david.palmer@hq.dhs.gov stephen.mccleary@hq.dhs.gov sharmistha.das@hq.dhs.gov via email and certified mail, return receipt requested
Re: DHS’s Unlawful “Pause on Removals”
Dear Mr. Pekoske:
Yesterday you ordered a blanket halt on nearly all deportations of illegal aliens. This complete abdication of the Department of Homeland Security’s (“DHS”) obligation to enforce federal immigration law is unlawful and will seriously and irreparably harm the State of Texas and its citizens.
Specifically, your memorandum directed DHS to impose “an immediate pause on removals of any noncitizen with a final order of removal [subject to limited exceptions] for 100 days to go into effect as soon as practical and no later than January 22, 2021.”1 Should such a directive be legal or left unchallenged, DHS could attempt to renew that directive indefinitely or issue a similar directive for an even longer period of time. That would allow the Biden Administration to grant blanket amnesty to the vast majority of the illegal aliens in this country with the stroke of a pen and without congressional approval.
1 Memo. from David Pekoske, Review of and Interim Revision to Civil Immigration Enforcement and Removal Policies and Priorities (Jan. 20, 2021), https://www.dhs.gov/sites/default/files/publications/21_0120_enforcementmemo_signed.pdf (footnote omitted).
P os t Ofﬁc e B ox 12548 , Au stin , Texa s 78711-2548 • (512) 463-2100 • www. t exa sa tt orn eygen era l. gov

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Letter to Acting Secretary Pekoske January 21, 2021 Page 2
Border states like Texas pay a particularly high price when the federal government fails to faithfully execute our country’s immigration laws. Your attempted halt on almost all deportations would increase the cost to Texas caused by illegal immigration. DHS itself has previously acknowledged that such a “pause on . . . removals” will cause “concrete injuries to Texas.” See Agreement between Department of Homeland Security and the State of Texas (“Agreement”) § 2.
As a result of that particularized interest in the effective operation of our immigration system, Texas has agreed to cooperate with the federal government in its execution of immigration enforcement. See Agreement. Your attempt to halt deportations violates our Agreement in multiple ways.
First, DHS is obligated to consult with Texas before reducing immigration enforcement, pausing removals, or declining to decrease the number of removable aliens residing in the United States. See Agreement §§ 2, 3.A. Prior to issuing yesterday’s memorandum, however, DHS did not contact Texas at all, much less comply with the notice and consultation requirements of our Agreement. See Agreement § 3.A.2–3.
Second, DHS agreed “to prioritize the protection of the United States and its existing communities,” including by “promot[ing] the return or removal from[] the United States of inadmissible and removable aliens.” Agreement § 3.A.1. Needless to say, a broad “pause” on the removal of illegal aliens does not “promote . . . removal.”
This letter serves as notice that Texas believes DHS has violated the Agreement; it is not a comprehensive list of the many legal defects in your memorandum. See Agreement § 8. Texas would like to resolve this dispute, but you must immediately rescind the January 20 Memorandum. DHS’s failure to provide Texas with preimplementation notice of the memorandum—combined with its quick implementation of the memorandum—makes waiting impracticable. We require an immediate response or we will seek relief to enjoin your order, as contemplated by the Agreement. Agreement § 6.
2

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Letter to Acting Secretary Pekoske January 21, 2021 Page 3

Best regards,

Ken Paxton Attorney General of Texas
Office of the Attorney General P.O. Box 12548 (MC-009) Austin, Texas 78711-2548
cc: The Honorable Greg Abbott, Governor of Texas
1100 San Jacinto Boulevard, 4th Floor Austin, Texas 78701
U.S. Customs and Border Protection Office of the Commissioner 1300 Pennsylvania Ave. NW Washington, D.C. 20229
U.S. Immigration and Customs Enforcement Office of the Director 500 12th Street SW Washington, D.C. 20536
U.S. Citizenship and Immigration Services Office of the Director 5900 Capital Gateway Drive Suitland, Maryland 20746

3

 
 Case 6:21-cv-00003 Document 6 Filed on 01/24/21 in TXSD Page 1 of 4

IN THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF TEXAS
VICTORIA DIVISION

STATE OF TEXAS,

Civ. Action No. 6:21-cv-00003

Plaintiff,

v.

The UNITED STATES OF AMERICA; DAVID PEKOSKE, Acting Secretary of the United States Department of Homeland Security, in his official capacity; UNITED STATES DEPARTMENT OF HOMELAND SECURITY; TROY MILLER, Senior Official Performing the Duties of the Commissioner of U.S. Customs and Border Protection, in his official capacity; U.S. CUSTOMS AND BORDER PROTECTION; TAE JOHNSON, Acting Director of U.S. Immigration and Customs Enforcement, in his official capacity; U.S. 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; U.S. CITIZENSHIP AND IMMIGRATION SERVICES,

ADVISORY REGARDING COURT’S QUESTION

Defendants.

At the hearing on Texas’s emergency motion for a temporary restraining order, the Court asked whether Defendants are releasing the illegal aliens who they refuse to remove. The answer is yes.

Case 6:21-cv-00003 Document 6 Filed on 01/24/21 in TXSD Page 2 of 4
Since the hearing, the press has reported that ICE officials in Texas have been instructed to not only “stop all removals” but also “[r]elease them all, immediately.”1 As far as Plaintiff can tell, Defendants have not denied the accuracy of the press report or the authenticity of the email on which it is based.
This development highlights the urgent need for relief. Defendants’ refusal to remove illegal aliens is directly leading to the immediate release of additional illegal aliens in Texas. That will force the State to spend additional money on Emergency Medicaid, the Family Violence Program, the Children’s Health Insurance Program, and public schools. See TRO Mot. at 16–17; Exs. D–E. Texas’s financial injury is irreparable because “there is no source of recompense.” Texas v. United States, 328 F. Supp. 3d 662, 737 (S.D. Tex. 2018).
The State of Texas respectfully requests that the Court either enter a TRO preventing Defendants from implementing the January 20 Memorandum or postpone the memorandum’s effective date. As the internal ICE official email illustrates, each day Defendants are allowed to proceed, they will refuse to remove illegal aliens, release those aliens, and irreparably injure Texas.
1 Tucker Carlson, ‘Release them all, immediately’: Email to ICE officers reveals chaos after Biden halted deportations, FOX NEWS (Jan. 22, 2020), https://www.foxnews.com/ opinion/release-them-all-immediately-email-to-ice-officers-reveals-chaos-after-biden-halteddeportations.
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Respectfully submitted this the 24th day of January, 2021, KEN PAXTON Attorney General of Texas BRENT WEBSTER First Assistant Attorney General PATRICK K. SWEETEN Associate Deputy Attorney General for Special Litigation /s/ William T. Thompson WILLIAM T. THOMPSON Special Counsel Special Litigation Unit Attorney-in-Charge Texas Bar No. 24088531 Southern District of Texas Bar No. 3053077 Special Litigation Division P.O. Box 12548 Austin, Texas 78711-2548 Phone: (512) 936-2567 Fax: (512) 936-0545 Patrick.Sweeten@oag.texas.gov Will.Thompson@oag.texas.gov Kathleen.Hunker@oag.texas.gov Joseph.Shaneyfelt@oag.texas.gov Counsel for the State of Texas
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CERTIFICATE OF SERVICE

I certify that a true and accurate copy of the foregoing document was filed

electronically (via CM/ECF) on January 24, 2021. A true and accurate copy of the

foregoing document will also be sent to the following addresses:

Adam.Kirschner@usdoj.gov Brian.C.Rosen-Shaud@usdoj.gov Brigham.Bowen@usdoj.gov Daniel.Hu@usdoj.gov

/s/ William T. Thompson WILLIAM T. THOMPSON

4

 
 Case 6:21-cv-00003 Document 9 Filed on 01/25/21 in TXSD Page 1 of 4

UNITED STATES DISTRICT COURT

FOR THE SOUTHERN DISTRICT OF TEXAS

VICTORIA DIVISION

__________________________________________

)

STATE OF TEXAS,

)

)

Plaintiff,

)

v.

)

No. 6:21-cv-00003

)

UNITED STATES OF AMERICA, et al.

)

)

Defendants.

)

__________________________________________)

DEFENDANTS’ RESPONSE TO PLAINTIFF’S ADVISORY

On January 24, 2021, Texas submitted an Advisory informing the Court of an “opinion” piece from a news network that claimed ICE was releasing noncitizens from detention in Texas. Undersigned counsel has conferred with officials at DHS, who advise that ICE has released a group of noncitizens with removal orders who did not meet any of the exceptions to the 100-day pause. ICE reports that the released individuals are part of a certified class in separate litigation, in which an injunction requires class members with specified COVID risk factors to be released.1 See generally Fraihat v. U.S. Immigration & Customs Enf’t, 445 F. Supp. 3d 709 (C.D. Cal. 2020), order clarified, No. EDCV191546JGBSHKX, 2020 WL 6541994 (C.D. Cal. Oct. 7, 2020).
These releases of noncitizens do not cause Texas irreparable harm; the releases were consistent with the authority DHS had prior to the issuance of the challenged Memorandum and any claim of injury by Texas remains speculative. Texas’s argument is based on their implicit suggestion that the Immigration and Nationality Act mandates the detention of aliens subject to final orders of removal that have not yet been executed. See Advisory at 1–2 (ECF No. 6). Texas’s understanding of

1 Undersigned counsel have not been advised of any additional groups of noncitizens released by ICE or whether CBP has released any non-citizens.
-1-

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immigration law is incorrect. Title 8 U.S.C. § 1231 governs the detention of aliens who are subject to final orders of removal. Section 1231(a) makes detention mandatory only for the initial 90-day removal period, see 8 U.S.C. § 1231(a)(2); after that period, the government “may”—not must—detain the alien. 8 U.S.C. § 1231(a)(6). Even within the 90-day removal period, moreover, the statute makes detention mandatory only for certain criminal and terrorist aliens, not for aliens in general. The relevant provision contains two sentences: “During the removal period, the [Secretary of Homeland Security] shall detain the alien. Under no circumstance during the removal period shall the [Secretary] release [certain terrorist and criminal aliens].” 8 U.S.C. § 1231(a)(2) (providing that “release” is unavailable for aliens “who ha[ve] been found inadmissible under section 1182(a)(2) or 1182(a)(3)(B) of this title or deportable under section 1227(a)(2) or 1227(a)(4)(B) of this title” only).
As explained in Defendant’s opposition to Plaintiff’s emergency application for a temporary restraining order, the word “shall” does not alter an agency’s unreviewable prosecutorial discretion. Opp’n at x (ECF No. x) (citing Town of Castle Rock, Colo. v. Gonzales, 545 U.S. 748, 764–65 (2005); Heckler v. Chaney, 470 U.S. 821, 835 (1985)). Reading “shall” to impose a mandate in the first sentence of § 1231(a)(2) would make the second sentence superfluous. DHS has thus long read the second sentence to require the detention of terrorist and criminal aliens, and the first sentence to authorize but not require the detention of other aliens. See Continued Detention of Aliens Subject to Final Orders of Removal, 66 Fed. Reg. 56,967, 56,969 (Nov. 14, 2001); cf. Town of Castle Rock, 545 U.S. at 760–761 (2005). Consistent with that understanding, the Supreme Court has explained that Section 1231(a) only “mandates detention of certain criminal aliens” during the removal period. Zadvydas v. Davis, 533 U.S. 678, 698 (2001) (emphasis added).
Whether or not an alien is to be removed, nothing in section 1231(a) mandates their detention unless they are within a narrow class of certain terrorist and criminal aliens. 8 U.S.C. § 1231(a)(2). Texas’s advisory does not advance its cause in seeking an unwarranted TRO.
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Case 6:21-cv-00003 Document 9 Filed on 01/25/21 in TXSD Page 3 of 4

Dated: January 25, 2021

Respectfully submitted,
BRIAN BOYNTON Acting Assistant Attorney General
AUGUST FLENTJE Special Counsel
BRIGHAM J. BOWEN Assistant Branch Director
/s/ Adam D. Kirschner ADAM D. KIRSCHNER IL Bar. No. 6286601 Senior Trial Counsel BRIAN C. ROSEN-SHAUD ME Bar No. 006018 Trial Attorney United States Department of Justice Civil Division, Federal Programs Branch Tel: (202) 353-9265 Fax: (202) 616-8460 Email: Adam.Kirschner@usdoj.gov
Brian.C.Rosen-Shaud@usdoj.gov
Mailing Address: Post Office Box 883 Washington, D.C. 20044
Courier Address 1100 L Street NW, Room 11020 Washington, D.C. 20005 Attorneys for Defendants
DANIEL DAVID HU Assistant United States Attorney Chief, Civil Division State Bar No. 10131415 S.D. I.D. 7959 Southern District of Texas 1000 Louisiana, Suite 2300 Houston, TX 77002 Tel: (713) 567-9000 Fax: (713) 718-3300 Daniel.Hu@usdoj.gov Local Counsel
-3-

Case 6:21-cv-00003 Document 9 Filed on 01/25/21 in TXSD Page 4 of 4 CERTIFICATE OF SERVICE
I certify that a true and accurate copy of the foregoing document was filed electronically (via CM/ECF) on January 25, 2021.
/s/ Adam D. Kirschner ADAM D. KIRSCHNER
-4-

 
 CCaassee 66::2211--ccvv--0000000033 DDooccuummeenntt 41-31 FFiilleedd oonn 0011//2252//2211 iinn TTXXSSDD PPaaggee 11 ooff 88

IN THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF TEXAS
VICTORIA DIVISION _______________________________________
STATE OF TEXAS

Plaintiff,

v.

Case No. 6:21-cv-00003

UNITED STATES OF AMERICA, et al.,

Defendants. _______________________________________

AMICUS BRIEF IN SUPPORT OF DEFENDANTS

CCaassee 66::2211--ccvv--0000000033 DDooccuummeenntt 41-31 FFiilleedd oonn 0011//2252//2211 iinn TTXXSSDD PPaaggee 22 ooff 88
I. THE “SAFE” AGREEMENT IS UNENFORCEABLE. After the last election, and days before the new Administration was inaugurated, the prior
Administration signed an agreement with Texas purporting to bind the federal government to make no changes to immigration enforcement for six months unless Texas agreed to such changes. Texas asserts that injunctive relief (and only injunctive relief) is appropriate under the agreement. But the agreement is not enforceable in this Court or any other, because the doctrine of Sovereign Immunity categorically bars any such injunction.
“In order to hale the federal government into a court proceeding, a plaintiff must show that there has been a valid waiver of sovereign immunity.” Lewis v. Hunt, 492 F.3d 565, 570 (5th Cir. 2007). “The absence of such a waiver is a jurisdictional defect.” Id. “A waiver of the Federal Government’s sovereign immunity must be unequivocally expressed in statutory text . . . and will not be implied.” Id. (emphasis added) (quoting Lane v. Pena, 518 U.S. 187, 192 (1996)). “[A]greement . . . between parties and their counsel is not sufficient to constitute a waiver of sovereign immunity.” Id.
There is no waiver of sovereign immunity for equitable enforcement of a contract with the United States, so this Court cannot entertain Texas’s claims relating to the SAFE agreement. See Robbins v. U.S. Bureau of Land Mgmt., 438 F.3d 1074, 1082 (10th Cir. 2006). As many circuits have held, “the Tucker and Little Tucker Acts ‘impliedly forbid’ federal courts from ordering declaratory or injunctive relief, at least in the form of specific performance, for contract claims against the government.” Id. (collecting cases from the First, Second, Third, Ninth, and D.C. Circuits); see also Larson v. Domestic & Foreign Commerce Corp., 337 U.S. 682, 704 (1949) (“There are the strongest reasons of public policy for the rule that such relief cannot be had against the sovereign. The Government as representative of the community as a whole,
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cannot be stopped in its tracks by any plaintiff who presents a disputed question of property or contract right.”).
Most critically here, the Fifth Circuit has expressly so held. See Alabama Rural Fire Ins. Co. v. Naylor, 530 F.2d 1221, 1229–30 (5th Cir. 1976). As the Circuit explained: “The gravamen of Alabama Rural’s complaint is a claim for breach of contract . . . . Congress specifically waived sovereign immunity when it established the Court of Claims and vested in that court jurisdiction over actions ex contractu against the United States, but limited that waiver by giving that court jurisdiction only to award damages, deliberately withholding equitable powers from it.” Id. (citation omitted). Thus, the Circuit refused to hold “that the district court had jurisdiction under the [Administrative Procedure Act] to exercise its equitable powers so as in effect to compel the United States to perform the disputed contract.” Id. at 1230. That is precisely what Texas seeks.
There are numerous other reasons that the SAFE agreements are invalid and unenforceable. See generally United States v. Winstar Corp., 518 U.S. 839 (1996) (addressing various doctrines that limit contracts which purport to constraint the future sovereign power of the government). Indeed, approving this agreement would set a deeply problematic precedent. If an outgoing DHS official can sign away the next administration’s policymaking authority for six months, why not for four years? Or eight? If DHS can do so, why not the Environmental Protection Agency, the Department of Energy, and every other federal agency? And if they can contract with Texas, why not with an individual—or the ACLU? Our Constitution directs that presidential elections occur every four years, with the Executive authority transferring shortly thereafter. But on Texas’s view, an outgoing administration need never yield power so long as it finds a willing contractor to lock in its policy preferences.
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But the Court need not reach such weighty issues, or any of the other problems with the validity of the contract at issue here. As a matter of black letter law, the federal government has not waived sovereign immunity over Texas’s effort to obtain injunctive relief based on a contract, and this Court therefore lacks subject matter jurisdiction.
II. TEXAS LACKS STANDING AND CANNOT SHOW THE IRREPARABLE HARM REQUIRED FOR A TRO.
Without the invalid agreement, Texas’s standing and irreparable harm arguments fall apart.
Texas has failed to demonstrate any cognizable injury, much less the kind of extraordinary and immediate harm required for a TRO. To have standing, a “plaintiff must establish a ‘personal stake’ in the dispute and that the injury is particularized to him. The injury cannot be one suffered by the citizens at large.” Donelon v. Louisiana Div. of Admin. Law ex rel. Wise, 522 F.3d 564, 566 (5th Cir. 2008) (internal citations omitted). Moreover, a plaintiff’s alleged future injuries cannot be “too speculative to satisfy the well-established requirement that threatened injury must be ‘certainly impending.’” Clapper v. Amnesty Intern. USA, 568 U.S. 398, 401 (2013).
Texas fails by every measure. It has not shown that it will face any harm because certain people with orders of removal that became final by November 1, 2020, will remain in the United States during the 100-day pause. Instead, it offers only generalized evidence totally divorced from the particular DHS order and timeframe at issue here, and asks the court to simply assume that some unknown number of people who would be removed but for the pause will instead impose costs on Texas. But assumptions, speculation, and generalized statistics do not establish standing.
3

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Crane v. Johnson, 783 F.3d 244, 252 (5th Cir. 2015), in which the Fifth Circuit held that the State of Mississippi lacked standing to challenge the Department of Homeland Security’s deferred action program, is instructive here. In that case, Mississippi asserted that it would be monetarily injured by the deferred action program because a 2006 study showed that undocumented people cost the state of Mississippi more than $25 million per year, and the deferred action program authorized some undocumented individuals to remain in the state. Id. The Fifth Circuit rejected this argument, holding that Mississippi had failed to “demonstrate that the state will incur costs because of the DACA program.” Id. (emphasis added). Mississippi did not provide any evidence, in that case, as to costs regarding DACA applicants in particular. As a result, its “claim of injury [wa]s not supported by any facts” and was “purely speculative.” Id.
The exact same is true here. The State of Texas cites only general statistics regarding the purported cost to the state of certain services—emergency medical care, the Family Violence program, perinatal care, and education—for undocumented individuals generally. See Motion for TRO at 16-17. This is precisely the type of evidence the Fifth Circuit rejected in Crane. It is not particularized in any way to the people affected by the January 20 memorandum. Indeed, as the State conceded at argument, its declarations are from a prior lawsuit—from 2018—which was filed long before the current policy was established. Standing is never dispensed as a matter of assumption and speculation; it certainly should not be here, where Texas seeks to halt a national initiative of a days-old Administration.
Finally, even if Texas’s generalized statistics were enough for standing, they come nowhere near the showing of immediate, irreparable harm required for the extraordinary relief of a TRO without full briefing from the federal government. See California Ass'n of Private Postsecondary Sch. v. DeVos, 344 F. Supp. 3d 158, 170 (D.D.C. 2018) (“A prospective injury
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that is sufficient to establish standing, however, does not necessarily satisfy the more demanding burden of demonstrating irreparable injury.”); Hodgers-Durgin v. de la Vina, 199 F.3d 1037, 1042 (9th Cir. 1999) (en banc) (similar).
III. DHS HAS BROAD DISCRETION TO DEFER REMOVAL EVEN WHERE A FINAL REMOVAL ORDER HAS BEEN ISSUED.
Texas primarily bases its merits and harm arguments on the Agreement, which is straightforwardly unenforceable as explained. Nevertheless, its other claims also fail. While Amicus will not address each claim in this brief, given the constraints of time, we wish to briefly correct certain misstatements regarding immigration law expressed during the temporary restraining order argument that are particularly relevant to Texas’s 8 U.S.C. § 1231(a) claim.
A removal order is not (like a court order) a directive to DHS to removal an individual. Rather, it is an administrative order which permits removal; a noncitizen cannot be removed until a final removal order is in place. But DHS has broad discretion regarding the decision whether to execute a final removal order at any given time. Indeed, a “principal feature of the removal system is the broad discretion exercised by immigration officials.” Arizona v. United States, 567 U.S. 387, 396 (2012).
In fact, while Texas makes much of a provision establishing a 90-day “removal period” during which the government “shall detain the alien,” 8 U.S.C. § 1231(a)(1), (2), longstanding regulations make perfectly clear that DHS “may grant a stay of removal or deportation” to “an alien under a final order of deportation or removal” “for such time and under such conditions as [the agency] may deem appropriate.” 8 C.F.R. § 241.6; see also 8 C.F.R. § 1241.6(a) (“An alien under a final order of deportation or removal may seek a stay of deportation or removal from the Department of Homeland Security as provided in 8 CFR 241.6.”); ICE Form 246, https://www.ice.gov/doclib/forms/i246.pdf (“A decision in a stay of deportation or removal
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application is within the sole discretion of the Secretary of Homeland Security or his or her designee, including the Field Office director. You may not appeal his or her decision.”). And in fact, DHS has previously provided, on a categorical basis, stays of removal for applicants for U visas (visas available to victims of qualifying crimes)—pursuant to its own discretionary authority to stay removals. See, e.g., United States v. Cisneros-Rodriguez, 813 F.3d 748, 761 (9th Cir. 2015) (describing DHS’s categorical exercise of discretion in staying removals for U visa applicants with final orders of removal).
In other words, “[o]nce an order of removal has become final, it may be executed at any time”—but it is still possible for “the Executive Branch to stay its own hand.” Nken v. Holder, 556 U.S. 418, 439-40 (2009) (Alito, J., dissenting). The executive branch—including the Department of Homeland Security—has long exercised discretion in pausing or staying removal, including on a categorical basis. Section 1231 has never been understood to limit this longstanding feature of immigration law. See 8 U.S.C. § 1231(a)(3) (acknowledging that some aliens will “not [be] removed within the removal period”); id. § 1231(a)(6) (same); see also Sierra Club v. Whitman, 268 F.3d 898, 906 (9th Cir. 2001) (relying on Escoe v. Zerbst, 295 U.S. 490, 493-94 (1935) and holding that statutory language requiring that the EPA Administrator “shall issue an order requiring” compliance or “shall bring a civil action” “does not create mandatory enforcement duties”). Texas’s TRO motion provides no basis to upend these features of our immigration system that have been in place for decades. //
6

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Respectfully submitted,

Omar C. Jadwat Michael Tan AMERICAN CIVIL LIBERTIES UNION FOUNDATION, IMMIGRANTS’ RIGHTS PROJECT 125 Broad Street, 18th Floor New York, NY 10004 (212) 549-2600 ojadwat@aclu.org mtan@aclu.org
Cody Wofsy Spencer E. Amdur AMERICAN CIVIL LIBERTIES UNION 39 Drumm Street San Francisco, CA 94111 Telephone: (415) 343-1198 cwofsy@aclu.org samdur@aclu.org

/s/ Andre Segura Andre Segura (Attorney-In-Charge) (Tex. 24107112; S.D. Tex. 3123385) Kathryn Huddleston AMERICAN CIVIL LIBERTIES UNION FOUNDATION OF TEXAS, INC. 5225 Katy Fwy., Suite 350 Houston, Texas 77007 (713) 942-8146 asegura@aclutx.org khuddleston@aclutx.org

CERTIFICATE OF COMPLIANCE The undersigned counsel certifies that the total number of words in the Amicus Brief, exclusive of the matters designated for omission, is 1,834 words as counted by Microsoft Word Software.

/s/ Andre Segura Andre Segura

7

 
 Case 6:21-cv-00003 Document 14 Filed on 01/25/21 in TXSD Page 1 of 3

UNITED STATES DISTRICT COURT

FOR THE SOUTHERN DISTRICT OF TEXAS

VICTORIA DIVISION

__________________________________________

)

STATE OF TEXAS,

)

)

Plaintiff,

)

v.

)

No. 6:21-cv-00003

)

UNITED STATES OF AMERICA, et al.

)

)

Defendants.

)

__________________________________________)

NOTICE In response to the Court’s minute order and instruction at this morning’s hearing, please find attached the email discussed in Plaintiff’s Advisory (ECF No. 6). Personal identifying information, including names of DHS employees, is redacted. Defendants are continuing to seek information related to the other requests in the Court’s minute order and will provide responses as soon as possible.

Dated: January 25, 2021

Respectfully submitted,
BRIAN M. BOYNTON Acting Assistant Attorney General
AUGUST FLENTJE Special Counsel
BRIGHAM J. BOWEN Assistant Branch Director
/s/ Adam D. Kirschner ADAM D. KIRSCHNER IL Bar. No. 6286601 Senior Trial Counsel BRIAN C. ROSEN-SHAUD ME Bar No. 006018 Trial Attorney United States Department of Justice Civil Division, Federal Programs Branch Tel: (202) 353-9265
-1-

Case 6:21-cv-00003 Document 14 Filed on 01/25/21 in TXSD Page 2 of 3
Fax: (202) 616-8460 Email: Adam.Kirschner@usdoj.gov
Brian.C.Rosen-Shaud@usdoj.gov Mailing Address: Post Office Box 883 Washington, D.C. 20044 Courier Address 1100 L Street NW, Room 11020 Washington, D.C. 20005 Attorneys for Defendants
DANIEL DAVID HU Assistant United States Attorney Chief, Civil Division State Bar No. 10131415 S.D. I.D. 7959 Southern District of Texas 1000 Louisiana, Suite 2300 Houston, TX 77002 Tel: (713) 567-9000 Fax: (713) 718-3300 Daniel.Hu@usdoj.gov Local Counsel
-2-

Case 6:21-cv-00003 Document 14 Filed on 01/25/21 in TXSD Page 3 of 3 CERTIFICATE OF SERVICE
I certify that a true and accurate copy of the foregoing document was filed electronically (via CM/ECF) on January 25, 2021.
/s/ Adam D. Kirschner ADAM D. KIRSCHNER
-3-

From: Sent: To: Subject:

Friday, January 22, 2021 6:33 PM RE: EFFECTIVE IMMIEDIATELY

Just spoke to HRD means High risk detainees. These detainees are Fraihat cases. They were holding some Fraihat as their removal was imminent. With the pause, their custody will have to be redetermined. Sadly that’s not the way it reads.

(A) Assistant Director Field Operations Enforcement and Removal Operations US Immigration and Customs Enforcement

From: Date: Friday, Jan 22, 2021, 6:20 PM To: Subject: RE: EFFECTIVE IMMIEDIATELY What does this mean?
Check the HRD at 1300hrs for new review decisions. Release them all, immediately. No sponsor available is not acceptable any longer.
Sent with BlackBerry Work (www.blackberry.com)
From: Date: Friday, Jan 22, 2021, 5:17 PM To: Subject: FW: EFFECTIVE IMMIEDIATELY
, as discussed, email is below. Thanks
(A) Assistant Director
1

Field Operations Enforcement and Removal Operations US Immigration and Customs Enforcement
From: Date: Friday, Jan 22, 2021, 6:16 PM To: Cc: Subject: FW: EFFECTIVE IMMIEDIATELY
From: Date: Friday, Jan 22, 2021, 5:05 PM To: Subject: FW: EFFECTIVE IMMIEDIATELY
As discussed, PAO brought the email below mine to my attention after Tucker Carlson (media) made inquiries as he has a copy of the memorandum. I am working with my local PAO as DHS will likely have to respond to the questions.
From: Date: Friday, Jan 22, 2021, 4:51 PM To: Cc: Subject: FW: EFFECTIVE IMMIEDIATELY Retract this directive immediately. Please direct your supervisors to follow the memorandum issued. Operational guidance is being developed and will be issued in the coming days. At this point we are going to be following the directive as closely to the letter as possible. Any questions on removals, releases, and/or arrests that we cannot determine fit squarely into the directive will be forwarded up through me to HQ for further discussion and decisions.
FOD
From: Sent: Thursday, January 21, 2021 11:29 AM To:
2

Subject: EFFECTIVE IMMIEDIATELY All, I am just the messenger… As of midnight tonight, stop all removals. This includes Mexican bus runs, charter flights and commercial removals (until further notice). If cases are staged somewhere else, IAO will make further determinations. Per the DFOD, all cases are to be considered NO SLRFF. Check the HRD at 1300hrs for new review decisions. Release them all, immediately. No sponsor available is not acceptable any longer. If you have specific case that you want to discuss, call me.
Assistant Officer in Charge/MPC Houston Field Office Enforcement and Removal Operations U.S. Immigration and Customs Enforcement
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 Case 6:21-cv-00003 Document 16 Filed on 01/26/21 in TXSD Page 1 of 18

UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF TEXAS
VICTORIA DIVISION

STATE OF TEXAS,

§

§

Plaintiff,

§

§

v.

§

§

The UNITED STATES OF AMERICA; §

DAVID PEKOSKE, Acting Secretary of §

The United States Department of Homeland §

Security, in his official capacity;

§

UNITED STATES DEPARTMENT OF §

HOMELAND SECURITY; TROY

§

MILLER, Senior Official Performing the §

Duties of the Commissioner of U.S. Customs §

and Border Protection, in his official

§

capacity; U.S. CUSTOMS AND BORDER §

PROTECTION; TAE JOHNSON, Acting §

Director of U.S. Immigration and

§

Customs Enforcement, in his official

§

capacity; U.S. 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; and U.S. CITIZENSHIP

§

AND IMMIGRATION SERVICES,

§

§

Defendants.

§

Civil Action No. 6:21-cv-00003

ORDER GRANTING PLAINTIFF’S EMERGENCY APPLICATION FOR A TEMPORARY RESTRAINING ORDER
The State of Texas requests a Temporary Restraining Order (“TRO”) to enjoin Defendants
from executing a 100-day pause on the removal of aliens already subject to a final Order of Removal.1 The 100-day pause was set into motion through a recent Memorandum of the

1 “[I]n the deportation context, a ‘final order of removal’ is a final order concluding that the alien is deportable or ordering deportation.” Nasrallah v. Barr, 140 S.Ct. 1683, 1690, 207 L.Ed.2d 111 (2020).

Case 6:21-cv-00003 Document 16 Filed on 01/26/21 in TXSD Page 2 of 18
Department of Homeland Security on January 20, 2021 (the “January 20 Memorandum”). (Dkt. No. 2-2). In relevant part, the January 20 Memorandum directs “an immediate pause on removals of any noncitizen with a final order of removal . . . for 100 days.”2 (Dkt. No. 2-2 at 4–5). After reviewing Texas’s Emergency Application, the arguments of Texas’s and Defendants’ counsel on January 22, 2021, the Defendants’ Response filed on January 24, 2021, the brief of Amicus, the record, and the applicable law, the Court finds that Texas has satisfied the requirements for a TRO. Accordingly, Texas’s Emergency Application for a TRO is GRANTED. In so doing, the Court makes clear that this Order is not based on the “Agreement Between Department of Homeland Security and the State of Texas” attached as Exhibit “A” to Plaintiff’s Complaint. The issues implicated by that Agreement are of such gravity and constitutional import that they require further development of the record and briefing prior to addressing the merits. Rather, the Court finds that a TRO maintaining the status quo as it existed prior to the implementation of the January 20 Memorandum’s 100-day pause is appropriate under the Administrative Procedures Act (the “APA”). Accordingly, and pursuant to Rule 65 of the Federal Rules of Civil Procedure, Defendants are enjoined from executing the 100-day pause on removals for 14 days for the reasons and in the manner described below.
2 The January 20 Memorandum excludes from the 100-day pause any alien with a final removal order who:
1. According to a written finding by the Director of ICE, has engaged in or is suspected of terrorism or espionage, or otherwise poses a danger to the national security of the United States; or
2. Was not physically present in the United States before November 1, 2020; or 3. Has voluntarily agreed to waive any rights to remain in the United States, provided that he or
she has been made fully aware of the consequences of waiver and has been given a meaningful opportunity to access counsel prior to signing the waiver; or 4. For whom the Acting Director of ICE, following consultation with the General Counsel, makes an individualized determination that removal is required by law. (Dkt. No. 2-2 at 4–5 (footnote omitted)).
2

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I. LEGAL STANDARD FOR A TEMPORARY RESTRAINING ORDER The standard for issuing a TRO is the same as the standard for issuing a preliminary
injunction. See Clark v. Prichard, 812 F.2d 991, 993 (5th Cir. 1987). Injunctive relief is “an extraordinary remedy” that may be awarded only upon “a clear showing that the plaintiff is entitled to such relief.” Winter v. Nat. Res. Def. Council, Inc., 555 U.S. 7, 22, 129 S.Ct. 365, 376, 172 L.Ed.2d 249 (2008). “[S]uch extraordinary relief would issue only where (1) there is a substantial likelihood that the movant will prevail on the merits; (2) there is a substantial threat that irreparable harm will result if the injunction is not granted; (3) the threatened injury outweighs the threatened harm to the defendant; and (4) the granting of the preliminary injunction will not disserve the public interest.” Clark, 812 F.2d at 993. “The party seeking such relief must satisfy a cumulative burden of proving each of the four elements enumerated before a temporary restraining order or preliminary injunction can be granted.” Id. But “none of the four prerequisites has a fixed quantitative value.” State of Tex. v. Seatrain Int'l, S. A., 518 F.2d 175, 180 (5th Cir. 1975). “Rather, a sliding scale is utilized, which takes into account the intensity of each in a given calculus.” Id. (citing Siff v. State Democratic Exec. Comm., 500 F.2d 1307 (5th Cir. 1974)). II. APPLICATION
In its Emergency Application, Texas argues it will likely succeed on the merits of its challenges to the January 20 Memorandum, there is a significant risk it would suffer imminent and irreparable harm if a TRO is not granted, and a TRO would not harm Defendants or the public. (Dkt. No. 2 at 7–19). The Court agrees.
Before addressing those elements, the Court pauses to note a temporary restraining order is meant only to “preserve, for a very brief time, the status quo, so as to avoid irreparable injury pending a hearing on the issuance of a preliminary injunction.” Norman Bridge Drug Co. v. Banner, 529 F.2d 822, 829 (5th Cir. 1976). Importantly, “[i]f the currently existing status quo
3

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itself is causing one of the parties irreparable injury, it is necessary to alter the situation so as to prevent the injury, . . . by, [inter alia,] returning to the last uncontested status quo between the parties.” Canal Auth. of State of Fla. v. Callaway, 489 F.2d 567, 576 (5th Cir. 1974) (emphasis, ellipsis, and alteration added) (citation omitted); see also United States v. FDIC, 881 F.2d 207, 210 (5th Cir. 1989) (“[T]he district court has the equitable power to return the parties to their last uncontested status.”). The Court finds that the “last uncontested status quo” here is the status of Defendants’ removal policy prior to issuance of the January 20 Memorandum’s 100-day pause on removals. See Callaway, 489 F.2d at 576.
A. SUBSTANTIAL LIKELIHOOD THAT TEXAS WILL PREVAIL ON THE MERITS A TRO is appropriate only where the plaintiff shows that there is a substantial likelihood it will prevail on the merits. Clark, 812 F.2d at 993. Indeed, the Fifth Circuit has cautioned that “it is inequitable to temporarily enjoin a party from undertaking activity which he has a clear right to pursue.” Seatrain, 518 F.2d at 180. Texas has asserted six claims against Defendants in its Complaint. (Dkt. No. 1 at ¶¶ 38– 72). At this early stage, the Court finds Texas has a substantial likelihood of success on at least two: (Count II) Texas’s claim that the January 20 Memorandum’s 100-day pause should be set aside pursuant to Section 706 of the APA because it violates 8 U.S.C. § 1231(a)(1)(A),3 and (Count IV) Texas’s claim that Defendants arbitrarily and capriciously departed from its previous policy without sufficient explanation. To succeed on its Application for a TRO, Texas need only demonstrate a likelihood of success on “at least one” claim. See Texas v. United States, 86 F. Supp. 3d 591, 672 (S.D. Tex.), aff'd, 809 F.3d 134 (5th Cir. 2015), as revised (Nov. 25, 2015).
3 Section 1231 states: “Except as otherwise provided in this section, when an alien is ordered removed, the Attorney General shall remove the alien from the United States within a period of 90 days.” 8 U.S.C. § 1231(a)(1)(A).
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The Court defers ruling on the remaining Counts, which should not be construed as an indication of the Court’s view of their merits.
Before addressing Counts II and IV, the Court must briefly address an issue concerning its jurisdiction under Article III. Defendants contend Texas cannot establish standing for these claims since Texas has asserted only “fiscal harm.” (Dkt. No. 8 at 17–18). The Court disagrees. The panel in Texas v. United States, addressing similar claims, held that the plaintiff-states had pleaded a sufficiently concrete injury by demonstrating the harm to “the states’ fisc,” such as “millions of dollars of losses in Texas alone.” 809 F.3d 134, 150–61, 162–63 (5th Cir. 2015), aff'd by an equally divided Court, 136 S.Ct. 2271 (2016) (mem.). Thus, the Fifth Circuit distinguished its holding from its previous ruling in Crane v. Johnson, where the plaintiff-state had “waived” the harm-to-public-fisc theory the plaintiff-states advanced in Texas. 809 F.3d at 150 n.24. Here, Texas asserts and has provided evidence that the 100-day pause will result in millions of dollars of damage to its public fisc by causing it to increase its spending on public services to illegal aliens. (Dkt. No. 2 at 18; Dkt. Nos. 2-4, 2-5). The Court is therefore satisfied for now that Texas has established an injury-in-fact. The Court also finds, for now, that Texas’s alleged injury is fairly traceable and redressable. See Bennett v. Spear, 520 U.S. 154, 167–71, 117 S.Ct. 1154, 1163–65, 137 L.Ed.2d 281 (1997).
1. Count II: Failure to Remove Illegal Aliens in Violation of 8 U.S.C. § 1231
Texas claims that the 100-day pause violates 8 U.S.C. § 1231(a)(1)(A). (Dkt. No. 1 at ¶¶ 43–49). That section provides, “when an alien is ordered removed, the Attorney General shall remove the alien from the United States within a period of 90 days.” 8 U.S.C. § 1231(a)(1)(A) (emphasis added). Texas contends that Defendants’ alleged violation of § 1231(a)(1)(A) gives rise to a claim under the APA. (Dkt. No. 1 at ¶ 45). In relevant part, § 706 of the APA provides
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that “a reviewing court shall hold unlawful and set aside agency action . . . found to be (A) . . . not in accordance with law” and “(C) in excess of statutory . . . authority.” 5 U.S.C. § 706(2)(A), (C). Texas argues the 100-day pause on removals is not in accordance with law and in excess of the government’s statutory authority under § 1231(a)(1)(A). (Dkt. No. 1 at ¶ 45). Further, Texas avers that Defendants’ alleged violation of § 1231(a)(1)(A) causes Texas irreparable harm. (Dkt. No. 1 at ¶ 47).
Defendants respond that the 100-day pause does not violate § 1231(a)(1)(A) because that provision “does not mandate removal within the 90-day removal period.” (Dkt. No. 8 at 15). Defendants also assert that Texas’s claims are not subject to judicial review, that the January 20 Memorandum is not a “final agency action” as provided by 5 U.S.C. § 704, and Texas’s claims are barred by 8 U.S.C. § 1231(h). (Id. at 13–16).
The Court finds that, by ordering a 100-day pause on all removals of aliens already subject to a final order of removal, it appears that the January 20 Memorandum is clearly not in accordance with, or is in excess of, the authority accorded to the Attorney General pursuant to 8 U.S.C. § 1231(a)(1)(A). In other words, the Court disagrees with Defendants’ argument that the 100-day pause does not violate § 1231(a)(1)(A). Defendants’ argument rests upon an interpretation of § 1231(a)(1)(A) that contravenes the unambiguous text. Section 1231(a)(1)(A) provides that, “when an alien is ordered removed, the Attorney General shall remove the alien from the United States within a period of 90 days.” 8 U.S.C. § 1231(a)(1)(A) (emphasis added). “[T]he word ‘shall’ usually connotes a requirement.” Me. Cmty. Health Options v. United States, ___ U.S. ___, 140 S.Ct. 1308, 1320, 206 L.Ed.2d 764 (2020) (internal quotation omitted). Here, “shall” means must. Tran v. Mukasey, 515 F.3d 478, 481–82 (5th Cir. 2008) (“[W]hen a final order of removal has been entered against an alien, the government must facilitate that alien’s removal from the
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United States within ninety days, a period generally referred to as the removal period.” (emphasis added) (citing 8 U.S.C. § 1231(a)(1)(A)). This mandatory language of § 1231(a)(1)(A) is not neutered by the federal government’s broad discretion in operating “the removal system” as a general matter, see, e.g. Arizona v. United States, 567 U.S. 387, 396–97, 132 S.Ct. 2492, 2499, 183 L.Ed.2d 351 (2012), the existence of statutes and caselaw outlining procedure in the event that practical circumstances prevent removal within 90 days, see, e.g. 8 U.S.C. § 1231(a)(1)(C); Zadvydas v. Davis, 533 U.S. 678, 701, 121 S.Ct. 2491, 2505, 150 L.Ed.2d 653 (2001), or regulations providing aliens an avenue to request a stay of deportation or removal, 8 C.F.R. § 241.6. Where Congress uses specific language within its immigration statutes to direct the Attorney General toward a specific result, courts are not free to assume based on a matrix of principles, statutes, and regulations that the Attorney General’s authority is simply “a matter of discretion.” Zadvydas, 533 U.S. at 688, 121 S.Ct. at 2497–98.
Defendants’ arguments that judicial review of the January 20 Memorandum is improper also fail. To this end, Defendants advance two arguments. First, Defendants contend that 5 U.S.C. § 701(a)(1), which bars judicial review where a “statute[] preclude[s] judicial review,” applies here in light of 8 U.S.C § 1252(g). (Dkt. No. 8 at 13). The Court disagrees. In relevant part, § 1252(g) prevents courts from exercising jurisdiction over claims arising from the government’s decision or action to execute removal orders brought “by or on behalf of any alien.” 8 U.S.C § 1252(g). Texas is not an alien. Nor does Texas bring this action “on behalf of” any alien. Therefore, § 1252(g) does not apply to this Court’s review. See Texas, 809 F.3d at 164. Second, Defendants contend that 5 U.S.C. § 701(a)(2), which precludes judicial review where “agency action is committed to agency discretion by law,” applies here in light of Defendants’ prosecutorial discretion in matters of immigration law generally and executing removal orders in particular. (Dkt. No. 8 at 13–14).
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Here again, the Court disagrees. As explained above, § 1231(a)(1)(A) clearly accords no discretion to the Attorney General to blatantly disregard the 90-day removal rule without finding that an enumerated exception applies. See, e.g., Tran, 515 F.3d at 481–82 (discussing narrow and explicitly defined exceptions to the mandatory 90-day removal rule in 8 U.S.C.§ 1231(a)(6)); Heckler v. Chaney, 470 U.S. 821, 832–34, 105 S.Ct. 1649, 1656–57, 84 L.Ed.2d 714 (1985) (finding that the normal presumption that the Executive’s nonenforcement of a statute is unreviewable is rebuttable where “the substantive statute has provided guidelines for the agency to follow in exercising its enforcement powers”). Cf. Brief for the Petitioners at *26–28, Reno v. Ma (Zadvydas v. Davis), 533 U.S. 678, 121 S.Ct. 2491 (No. 00-38) (2000 WL 1784982) (arguing on behalf of the Attorney General that the language of 8 U.S.C. § 1231(a)(2) is mandatory and that § 1231(a)(6)’s provision of discretionary authority is exceptional). Thus, Defendants do not have discretion to completely disregard § 1231(a)(1)(A) and their January 20 Memorandum appearing to do so is reviewable.
Defendants’ argument that the January 20 Memorandum is not a “final agency action” subject to review under 5 U.S.C. § 704 also fails. In Bennett v. Spear, the Supreme Court explained that an agency’s actions are sufficiently “final” to satisfy § 704 where (1) the action marks the “consummation” of the agency’s decision-making process and (2) the action is one by which “rights or obligations have been determined.” 520 U.S. 154, 177–78, 117 S.Ct. 1154, 1168, 137 L.Ed.2d 281 (1997). Here, the January 20 Memorandum’s order “directing an immediate pause on removals of any noncitizen with a final order of removal” is sufficiently final and immediate to denote the consummation of the agency’s decision as it relates to a pause in removals. (Dkt. No. 2-2 at 4). As well, it seems clear that Defendants, through the January 20 Memorandum’s 100day pause, have disregarded their previous legal “obligations” and adjudication of the aliens’
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“rights” by inexplicably ordering a reassessment of all previous orders for removal and plainly ignoring the statutory mandate of § 1231(a)(1)(A) to remove aliens within 90 days. (Dkt. No. 2-2 at 4-5).
Finally, Defendants contend Texas is barred from suing by 8 U.S.C. § 1231(h). That section states that “nothing” in all of § 1231 “shall be construed to create any substantive or procedural right or benefit that is legally enforceable by any party against” the government. 8 U.S.C. § 1231(h). Defendants’ reliance on 8 U.S.C. § 1231(h) overstates the scope of that subsection’s limitations. The Supreme Court in Zadvydas explained that, although § 1231(h) “forbids courts to construe that section ‘to create any . . . procedural right or benefit that is legally enforceable,” it in no way “deprive[s] an alien of the right to rely on 28 U.S.C. § 2241 to challenge detention that is without statutory authority.” 533 U.S. at 678–88, 121 S.Ct. at 2497. Similarly, here, § 1231(h) does not preclude Texas from challenging § 1231(a)(1)(A) under 5 U.S.C. § 706.
The Court therefore finds Texas has demonstrated a substantial likelihood of success on its claim that the January 20 Memorandum’s 100-day pause on removals violates 8 U.S.C. § 1231(a)(1)(A).
2. Count IV: Arbitrary and Capricious Texas argues that the January 20 Memorandum is arbitrary and capricious because it was issued “without any consideration whatsoever of a [more limited] policy.” (Dkt. No. 2 at 12 (quoting Dep’t of Homeland Sec. v. Regents of the Univ. of Cal., 140 S.Ct. 1891, 1912, 207 L.Ed.2d 353 (2020)). Defendants disagree, contending DHS “not only considered but enacted a specifically limited interim policy,” the January 20 Memorandum’s terms are “limited in both scope and time, and [they exempt] four classes of aliens from the pause on removal.” (Dkt. No. 8 at 16). The Court agrees with Texas and finds Defendants’ assertions unpersuasive.
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The APA prohibits agency actions that are “arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law.” 5 U.S.C. § 706(2)(A). Federal administrative agencies are required to engage in “reasoned decision-making.” Allentown Mack Sales & Serv., Inc. v. NLRB, 522 U.S. 359, 374, 118 S.Ct. 818, 826, 139 L.Ed.2d 797 (1998) (internal quotation omitted). “Not only must an agency’s decreed result be within the scope of its lawful authority, but the process by which it reaches that result must be logical and rational.” Id. Put differently, “agency action is lawful only if it rests ‘on a consideration of the relevant factors.’” Michigan v. EPA, 576 U.S. 743, 750, 135 S.Ct. 2699, 2706, 192 L.Ed.2d 674 (2015) (quoting Motor Vehicle Mfrs. Assn. of United States, Inc. v. State Farm Mut. Auto. Ins. Co., 463 U.S. 29, 43, 103 S.Ct. 2856, 2866–67, 77 L.Ed.2d 443 (1983)).
Here, the January 20 Memorandum not only fails to consider potential policies more limited in scope and time, but it also fails to provide any concrete, reasonable justification for a 100-day pause on deportations. The January 20 Memorandum states that the 100-day pause is required to assess immigration policies because of the “unique circumstances” present with respect to immigration, including “significant operational challenges at the southwest border as [the United States] is confronting the most serious global public health crisis in a century.” (Dkt. No. 2-2 at 2). DHS specifically cites to its apparent (1) need for a comprehensive review of enforcement policies, (2) need for interim civil enforcement guidelines, and (3) “limited resources” that would necessitate a pause in executing removal orders. (Id. at 2–5). Additionally, the January 20 Memorandum states that the 100-day pause in deportations is necessary to “(1) provide sufficient staff and resources to enhance border security and conduct immigration and asylum processing at the southwest border fairly and efficiently; and (2) comply with COVID-19 protocols to protect the health and safety of DHS personnel and those members of the public with whom
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DHS personnel interact.” (Id. at 3). The January 20 Memorandum also provides that DHS “must ensure that [the agency’s] removal resources are directed to the Department’s highest enforcement priorities.” (Id.). DHS, however, never explains how the pause in removals helps accomplish these goals. It remains unknown why a 100-day pause is needed given the allegedly “unique circumstances” to which the January 20 Memorandum alludes. Indeed, despite such unique circumstances, DHS did not state or explain why 100 days specifically is needed to accomplish these goals. The silence of the January 20 Memorandum on these questions indicates that the terms provided for in the Memorandum were not a result of “reasoned decision-making.” Allentown Mack Sales, 522 U.S. at 374, 118 S.Ct. at 826.
The Court recognizes that the TRO process is expedited, and the record and briefing are abbreviated at this point. With an eye towards the preliminary injunction stage, Defendants will have an opportunity to supplement the record.4
Accordingly, the Court finds that Texas has established a substantial likelihood that it will prevail on the merits of at least these two claims.
B. SUBSTANTIAL THREAT OF IRREPARABLE HARM In addition to showing a likelihood of success on the merits of a claim, Texas is required to demonstrate “a substantial threat of irreparable injury if the injunction is not issued.” Texas, 809 F.3d at 150. To meet this requirement, Texas’s injury “need not have already been inflicted or be certain to occur; a strong threat of irreparable injury before a trial on the merits is adequate.” Texas v. United States, 328 F. Supp. 3d 662, 736 (S.D. Tex. 2018) (Hanen, J.).
4 The Court notes, however, that “the grounds upon which an administrative order must be judged are those upon which the record discloses that its action was based.” SEC v. Chenery Corp., 318 U.S. 80, 87, 63 S.Ct. 454, 459, 87 L.Ed. 626 (1943).
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In this case, Texas has presented evidence it would suffer injuries for various reasons if an injunction is not entered. First, Texas demonstrates that it pays millions of dollars annually to provide social services and uncompensated healthcare expenses and other state-provided benefits to illegal aliens such as the Emergency Medicaid program, the Family Violence Program, and the Texas Children’s Health Insurance Program. (Dkt. No. 2 at 16–17). Additionally, Texas has presented evidence that it would incur increased educational costs. (Dkt. No. 2 at 17). Texas asserts that these expenses will grow because of the January 20 Memorandum. (Dkt. No. 2 at 16). The January 20 Memorandum expressly states that the Acting Director of ICE “shall provide for alternatives to removal” for those who have already been ordered to be removed, including but not limited to “whether to grant temporary deferred action.” (Dkt. No. 2-2). In light of this mandatory reassessment for “alternatives to removal,” Texas anticipates suffering financial harm from which it cannot recover by suing the federal government. See Texas, 328 F. Supp. 3d at 737 (citing Texas v. United States, 106 F.3d 661, 662 (5th Cir. 1997)).
Further, Texas argues that “the categorical refusal to remove aliens ordered removable will encourage additional illegal immigration into Texas,” thereby exacerbating its public service costs. (Dkt. No. 2 at 17). During the January 22, 2021 hearing, Texas argued that the January 20 Memorandum’s pause on removals increases its fiscal burden not only because of those aliens illegally present in Texas, but also because of those who may find their way to Texas from other states in the near future. Such injury is not, as a legal matter, purely speculative. The Fifth Circuit has expressly found that injuries to one state can flow from the fact that illegal aliens are “free to move among states.” Texas, 809 F.3d at 188.
The Court finds that the foregoing establishes a substantial risk of imminent and irreparable harm to Texas. As a result, Texas has satisfied this element for a TRO as well.
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C. SUBSTANTIAL INJURY TO TEXAS OUTWEIGHS HARM TO DEFENDANTS AND WILL NOT UNDERMINE THE PUBLIC INTEREST
Texas is next required to establish that that the threatened injury outweighs any harm that may result from the injunction to the non-movant and will not undermine the public interest. Valley v. Rapides Parish Sch. Bd., 118 F.3d 1047, 1051 (5th Cir. 1997).
Texas argues that Defendants cannot be harmed by the TRO because “[t]hey have no legitimate interest in the implementation of an unlawful memorandum.” (Dkt. No. 2 at 19). Defendants disagree and assert that there is a public interest in “measured and considered assessments of immigration policies by an incoming Administration.” (Dkt. No. 8 at 13). Defendants further argue that “an injunction here would disrupt the Administration’s careful calibration of how to conduct a necessary review.” (Id.).
The Court finds Defendants’ arguments unpersuasive. Defendants are free to conduct a “measured and considered assessment” of immigration policies regardless of the existence of the January 20 Memorandum’s 100-day pause. Furthermore, the Fifth Circuit explained in Texas that “any inefficiency” suffered by federal immigration authorities caused by an immediate injunction is outweighed by the losses a plaintiff State would face. 809 F.3d at 187 (emphasis added).
Indeed, courts have recognized that the public interest is served by the execution of removal orders. See Nken v. Holder, 556 U.S. 418, 436, 129 S.Ct. 1749, 1762, 173 L.Ed.2d 550 (2009) (“There is always a public interest in prompt execution of removal orders.” (emphasis added)); see also Blackie’s House of Beef, Inc. v. Castillo, 659 F.2d. 1211, 1221 (D.C. Cir. 1981) (collecting cases to support the proposition that “the public interest in enforcement of the immigration laws is significant” (emphasis added)). To this end, one of Texas’s claims involves an allegation that the January 20 Memorandum’s 100-day pause contravenes § 1231(a)(1)(A)’s mandate that aliens
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subject to an order of removal be removed within 90 days. (Dkt. No. 2 at 10). The public’s interest is not disserved by temporarily enjoining this policy.
In light of the foregoing, the Court finds that the threat of injury to Texas outweighs any potential harm to Defendants and the public interest is served and protected by the issuance of this TRO. The Court therefore finds that Texas has met its burden to satisfy these elements for a TRO.
* * * In summary, Texas has thus far satisfactorily demonstrated it is entitled to immediate and temporary relief from the January 20 Memorandum’s 100-day pause on removals. The scope of this relief warrants additional attention. D. SCOPE OF RELIEF Nationwide injunctions5 of executive action are a topic of fierce and ongoing debate in both the courts and the legal academy. Compare, e.g., DHS v. New York, 140 S.Ct. 599, 599–601, 206 L.Ed.2d 115 (2020) (mem.) (Gorsuch, J., concurring) (articulating a common flaw in “injunctions of ‘nationwide,’ ‘universal,” or ‘cosmic’ scope’); Trump v. Hawaii, 138 S.Ct. 2392, 2424–2429, 201 L.Ed.2d 775 (2018) (Thomas, J., concurring) (calling the practice of nationwide or “universal” injunctions “legally and historically dubious”); Samuel Bray, Multiple Chancellors: Reforming the National Injunction, 131 HARV. L. REV. 417, 461 (2017) (arguing “[n]ational injunctions interfere with good decisionmaking by the federal judiciary”); with East Bay Sanctuary Covenant v. Barr, 964 F.3d 832, 857 (9th Cir. 2020) (calling nationwide injunctions “uniquely appropriate in immigration cases”); Alan M. Trammell, The Constitutionality of Nationwide Injunctions, 91 U.
5 The term “nationwide injunction” is infamously wrought with imprecision. See Alan M. Trammel, Demystifying Nationwide Injunctions, 98 TEX. L. REV. 67, 72 n.23 (2019) (collecting sources and listing alternatives commonly used, such as “national injunction,” “defendant-oriented injunction,” and “universal injunction”). One scholar employs the term “nationwide injunctions,” despite it being a “deeply imperfect term,” because it appears to be the “most familiar.” Id. at 72. With the same qualification and rationale, the Court does so here.
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COLO. L. REV. 977, 980–89 (2020) (arguing nationwide injunctions do not transgress Article III); Amanda Frost, In Defense of Nationwide Injunctions, 93 N.Y.U. L. REV. 1065, 1080–1103 (2018) (arguing nationwide injunctions are appropriate as a constitutional and prudential matter); see also Alan M. Trammel, Demystifying Nationwide Injunctions, 98 TEX. L. REV. 67, 103–116 (2019) (proposing a “preclusion-based theory of nationwide injunctions”); Jonathan Remy Nash, State Standing for Nationwide Injunctions Against the Federal Government, 94 NOTRE DAME L. REV. 1985, 2012 (2019) (discussing at length the interplay between standing doctrine and nationwide injunctions where states seek relief against the federal government and concluding narrowly that “special solicitude should make nationwide injunctions potentially available in cases where plaintiff states can allege standing but other (nonstate) plaintiffs cannot”).
This Court is likewise concerned about the issuance of nationwide injunctions by a district court. Notwithstanding its concerns, as a district court, this Court is duty bound to faithfully apply the precedents of its Circuit. The Fifth Circuit has addressed the propriety of a nationwide injunction in the immigration context. In Texas, the Fifth Circuit held that “[i]t is not beyond the power of a court, in appropriate circumstances, to issue a nationwide injunction.” 809 F.3d. at 188. The “appropriate circumstances” warranting a nationwide injunction in Texas itself included a need for “uniformity” in immigration policies as prescribed by the Constitution, federal statutes, and Supreme Court precedent. Id. at 187–88 (citing U.S. CONST. art. I, § 8, cl. 4; Immigration Reform and Control Act of 1986, Pub. L. No. 99–603, § 115(1), 100 Stat. 3359, 3384; Arizona, 567 U.S. at 401, 132 S.Ct. at 2502). The Fifth Circuit in Texas also reasoned that “partial implementation” of the agency action being enjoined would detract from the “integrated scheme of regulation created by Congress.” Id. at 188 (internal quotation omitted). And lastly, the panel
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found there was “a substantial likelihood that a geographically-limited injunction would be
ineffective because [illegal aliens] would be free to move among states.” Id.
The Fifth Circuit’s rationale in affirming a nationwide injunction in Texas applies with
equal force here. The January 20 Memorandum’s 100-day pause plainly affects national
immigration policy, which demands “uniformity.” Id. at 187–88; see also East Bay Sanctuary
Covenant, 964 F.3d at 857 (citing Texas, 809 F.3d at 187–88). Because the January 20
Memorandum’s 100-day pause impacts numerous statutes and agency regulations concerning
removals and detention periods, its partial implementation would inevitably detract from Congress’s “integrated scheme of regulation.”6 Id. at 188. Lastly, a geographically limited
injunction of the January 20 Memorandum’s 100-day pause on removals would not effectively
protect Texas’s interests because of the free flow of movement among the states. In other words,
many individuals who are subject to an order of removal in other states whose removal is delayed
or ultimately deferred may migrate to Texas. As described above, Texas has persuasively
6 In addition, nationwide injunctions have been found to be appropriate when plaintiffs present claims alleging that defendant federal agencies have violated the APA. See, e.g., Nat'l Mining Ass'n v. U.S. Army Corps of Eng'rs, 145 F.3d 1399, 1407–08 (D.C. Cir. 1998) (invalidating an agency rule and affirming the nationwide injunction); Harmon v. Thornburgh, 878 F.2d 484, 495 n.21 (D.C. Cir. 1989) (“When a reviewing court determines that agency regulations are unlawful, the ordinary result is that the rules are vacated—not that their application to the individual petitioners is proscribed.”). Indeed, other district courts have noted that a geographically restricted injunction issued to remedy “likely unlawful agency actions” meant to be “appl[ied] universally” would, among other things, “invite[] arbitrary enforcement” on the part of the federal agency “and create[] more questions than it answers.” Make the Rd. New York v. Pompeo, 475 F. Supp. 3d 232, 271 (S.D.N.Y. 2020); see also New York v. United States Dep't of Homeland Sec., 408 F. Supp. 3d 334, 352 (S.D.N.Y. 2019), aff'd as modified, 969 F.3d 42 (2d Cir. 2020). (“A geographically limited injunction that would result in inconsistent applications of [immigration policy in the context of public charge determinations] . . . is inimical to [the] need for uniformity in immigration enforcement.”). By contrast, a sister Circuit, presiding over a challenge to certain rules stemming from the implementation of the Affordable Care Act, vacated the scope of a nationwide injunction “when an injunction that applies only to the plaintiff states would provide complete relief” to the plaintiffs. California v. Azar, 911 F.3d 558, 584 (9th Cir. 2018) (emphasis added). As explained in this section, the Court’s injunction is consistent with Azar’s aim of providing “complete relief” to the plaintiff.
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demonstrated a substantial risk of irreparable harm in part because of the potential increased flow
of illegal aliens from other states.
Accordingly, the Court finds that, under the circumstances here, Defendants must be
enjoined from executing the January 20 Memorandum’s 100-day pause on the removal of aliens
in every place Defendants would have jurisdiction to implement it.
That said, the Court notes that the scope of this injunction is something it is willing to
revisit after the parties fully brief and argue the issue for purposes of the upcoming motion for
preliminary injunction. Though the scope of this TRO is broad, it is not necessarily permanent.
III. CONCLUSION For the foregoing reasons, the Court GRANTS Texas’s Emergency Application. (Dkt. No.
2). Therefore, it is hereby ORDERED that:
1. Defendants and all their respective officers, agents, servants, employees, attorneys, and other persons who are in active concert or participation with them are hereby ENJOINED and RESTRAINED from enforcing and implementing the policies described in the January 20 Memorandum in Section C entitled “Immediate 100Day Pause on Removals.”7 (Dkt. No. 2-2 at 4–5).
2. This TRO is granted on a nationwide basis and prohibits enforcement and implementation of the policies described in the January 20 Memorandum in Section C entitled “Immediate100-Day Pause on Removals” in every place Defendants have jurisdiction to enforce and implement the January 20 Memorandum.
3. No security bond is required under Federal Rule of Civil Procedure 65(c). 4. Finally, the Court ORDERS the parties to propose a briefing schedule no later than
Thursday, January 28, 2021 at 12:00 p.m. with respect Texas’s Request for Preliminary Injunction in its Complaint. The parties should also address whether expedited discovery is necessary and the contours and scheduling for same. The
7 This Order does not in any way limit Defendants’ efforts to carry out or adhere to the January 20 Memorandum’s other sections, entitled “A. Comprehensive Review of Enforcement Policies and Priorities,” (Dkt. No. 2-2 at 3), “B. Interim Civil Enforcement Guidelines,” (id.), or “D. No Private Right Statement,” (id. at 5). This injunction is effective for 14 days as prescribed by Rule 65 of the Federal Rules of Civil Procedure.
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Case 6:21-cv-00003 Document 16 Filed on 01/26/21 in TXSD Page 18 of 18 Court will promptly schedule a hearing on the Motion for Preliminary Injunction, if requested and necessary.
It is SO ORDERED. SIGNED this January 26, 2021.
_____________________________________
DREW B. TIPTON UNITED STATES DISTRICT JUDGE
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 Case 6:21-cv-00003 Document 59 Filed on 02/03/21 in TXSD Page 1 of 3

UNITED STATES DISTRICT COURT

FOR THE SOUTHERN DISTRICT OF TEXAS

VICTORIA DIVISION

__________________________________________

)

STATE OF TEXAS,

)

)

Plaintiff,

)

v.

)

No. 6:21-cv-00003

)

UNITED STATES OF AMERICA, et al.

)

)

Defendants.

)

__________________________________________)

NOTICE Please find attached the certified Administrative Record. Defendants will supplement if necessary.

Dated: February 3, 2021

Respectfully submitted,
BRIAN M. BOYNTON Acting Assistant Attorney General
AUGUST FLENTJE Special Counsel
BRIGHAM J. BOWEN Assistant Branch Director
/s/ Adam D. Kirschner ADAM D. KIRSCHNER Attorney-in-charge IL Bar. No. 6286601 Senior Trial Counsel BRIAN C. ROSEN-SHAUD ME Bar No. 006018 MICHAEL F. KNAPP CA Bar No. 314104 Trial Attorneys United States Department of Justice Civil Division, Federal Programs Branch Tel: (202) 353-9265 Fax: (202) 616-8460 Email: Adam.Kirschner@usdoj.gov
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Case 6:21-cv-00003 Document 59 Filed on 02/03/21 in TXSD Page 2 of 3
Brian.C.Rosen-Shaud@usdoj.gov Michael.F.Knapp@usdoj.gov Mailing Address: Post Office Box 883 Washington, D.C. 20044 Courier Address 1100 L Street NW, Room 11020 Washington, D.C. 20005 Attorneys for Defendants
DANIEL DAVID HU Assistant United States Attorney Chief, Civil Division State Bar No. 10131415 S.D. I.D. 7959 Southern District of Texas 1000 Louisiana, Suite 2300 Houston, TX 77002 Tel: (713) 567-9000 Fax: (713) 718-3300 Daniel.Hu@usdoj.gov Local Counsel
-2-

Case 6:21-cv-00003 Document 59 Filed on 02/03/21 in TXSD Page 3 of 3 CERTIFICATE OF SERVICE
I certify that a true and accurate copy of the foregoing document was filed electronically (via CM/ECF) on February 3, 2021.
/s/ Adam D. Kirschner ADAM D. KIRSCHNER
-3-

Case 6:21-cv-00003 Document 59-1 Filed on 02/03/21 in TXSD Page 1 of 10

UNITED STATES DISTRICT COURT

FOR THE SOUTHERN DISTRICT OF TEXAS

VICTORIA DIVISION

__________________________________________

)

STATE OF TEXAS,

)

)

Plaintiff,

)

v.

)

No. 6:21-cv-00003

)

UNITED STATES OF AMERICA, et al.

)

)

Defendants.

)

__________________________________________)

CERTIFICATION
My name is Juliana Blackwell. I am employed with the U.S. Department of Homeland Security, as the Deputy Executive Secretary. I am responsible for the oversight and management of the Office of the Executive Secretary, which oversees the management of written communication intended for, and originated by, the Secretary and Deputy Secretary of Homeland Security and maintains official Department records. I have held this position since August 2019.
I am the custodian of the Review of and Interim Revision to Civil Immigration Enforcement and Removal Policies and Priorities memorandum and the administrative record for those decisions for DHS. I certify that, to the best of my knowledge, information, and belief, the attached index contains the non-privileged documents considered by DHS, and that these documents constitute the administrative record the agency considered. I hereby certify that the Administrative Record contains all materials indirectly or directly considered that were identified

-1-

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as of February 2, 2021. The Department will supplement to the extent additional records are discovered.

Executed this 3rd day of February, 2021 in Washington, D.C.

JULIANA J

Digitally signed by JULIANA J BLACKWELL

_B_L_A_C_K_W_E_L_L____D-0a5_t'e0:0_2' 02_1.0_2.0_3 _12:_31:_17__

Juliana Blackwell Deputy Executive Secretary

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UNITED STATES DISTRICT COURT

FOR THE SOUTHERN DISTRICT OF TEXAS

VICTORIA DIVISION

__________________________________________

)

STATE OF TEXAS,

)

)

Plaintiff,

)

v.

)

No. 6:21-cv-00003

)

UNITED STATES OF AMERICA, et al.

)

)

Defendants.

)

__________________________________________)

CERTIFIED INDEX

DOCUMENT

PAGE

1. Executive Order 13993, Revision of Civil Immigration Enforcement Policies and Priorities, 86 Fed. Reg. 7051, January 20, 2021. .........................................................1

2. Review of and Interim Revision to Civil Immigration Enforcement and Removal Policies and Priorities, signed by David P. Pekoske, January 20, 2021. ............................3

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IN THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF TEXAS
VICTORIA DIVISION

STATE OF TEXAS,

Plaintiff,
v.
The UNITED STATES OF AMERICA; DAVID PEKOSKE, Acting Secretary of the United States Department of Homeland Security, in his official capacity; UNITED STATES DEPARTMENT OF HOMELAND SECURITY; TROY MILLER, Senior Official Performing the Duties of the Commissioner of U.S. Customs and Border Protection, in his official capacity; U.S. CUSTOMS AND BORDER PROTECTION; TAE JOHNSON, Acting Director of U.S. Immigration and Customs Enforcement, in his official capacity; U.S. 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; U.S. CITIZENSHIP AND IMMIGRATION SERVICES,
Defendants.

Civ. Action No. 6:21-cv-00003

TEXAS’S MOTION FOR PRELIMINARY INJUNCTION

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TABLE OF CONTENTS
TABLE OF CONTENTS ........................................................................................................................ i TABLE OF AUTHORITIES................................................................................................................... ii INTRODUCTION ................................................................................................................................ 1 STATEMENT OF FACTS ..................................................................................................................... 2 SUMMARY OF THE ARGUMENT ........................................................................................................ 5 ARGUMENT ...................................................................................................................................... 6
I. No procedural issue prevents this Court’s review. ......................................................... 6 A. The January 20 Memorandum is subject to judicial review. ...................................... 6 B. The January 20 Memorandum is a final agency action. ............................................. 9 C. Texas has standing to bring these claims. ................................................................. 10
II. The January 20 Memorandum violates the Administrative Procedure Act. ................. 11 A. The January 20 Memorandum exceeds Defendants’ statutory jurisdiction, authority, or limitation....................................................................................................................... 11 B. The January 20 Memorandum is arbitrary and capricious........................................ 13 C. The January 20 Memorandum was required to go through notice-and-comment rulemaking. ....................................................................................................................... 16
III. Abdicating responsibility for removing illegal aliens is unconstitutional. ................... 17 IV. Defendant DHS violated the Agreement. ..................................................................... 19 V. The APA requires a final judgment setting aside the January 20 Memorandum. ........ 20 VI. Texas will suffer irreparable harm if an injunction is not granted................................ 22
A. DHS admits Texas faces irreparable injury .............................................................. 23 B. Texas Is Forced to Spend Money on Various Services for Illegal Aliens ................ 23 C. This Court has previously found this evidence sufficient to show irreparable injury
25 VII. An injunction would not harm defendants or the public............................................... 26 VIII. The Court should postpone the January 20 Memorandum’s Effective Date. ............... 26 CONCLUSION ................................................................................................................................. 27
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TABLE OF AUTHORITIES

Page(s)

Cases

Am. Stewards of Liberty v. Dep’t of Interior, 370 F. Supp. 3d 711 (W.D. Tex. 2019)....................................................................................21

AquAlliance v. U.S. Bureau of Reclamation, 312 F. Supp. 3d 878 (E.D. Cal. 2018)......................................................................................21

Arizona v. United States 567 U.S. 387 (2012).................................................................................................................10

Armstrong v. Exceptional Child Center, Inc., 575 U.S. 320 (2015).............................................................................................................1, 18

Batalla Vidal v. Nielsen, 279 F. Supp. 3d 401 (E.D.N.Y. 2018) .....................................................................................22

Bennett v. Spear, 520 U.S. 154 (1997)...................................................................................................................9

Clark v. Martinez, 543 U.S. 371 (2005).................................................................................................................11

Dart v. United States, 848 F.2d 217 (D.C. Cir. 1988) .................................................................................................18

Dep’t of Homeland Sec. v. Regents of the Univ. of Cal., 140 S. Ct. 1891 (2020) ...................................................................................................8, 14, 15

Dept. of Commerce v. New York, 139 S. Ct. 2551 (2019) .............................................................................................................23

Green Valley Special Util. Dist. v. City of Schertz, 969 F.3d 460 (5th Cir. 2020) (en banc) ...................................................................................18

Heckler v. Chaney, 470 U.S. 821 (1985)...........................................................................................................5, 7, 8

Humana, Inc. v. Avram A. Jacobson, M.D., P.A., 804 F.2d 1390 (5th Cir. 1986) .................................................................................................22

IHG Healthcare, Inc. v. Sebelius, 4:09-cv-3233, 2010 WL 11680368 (S.D. Tex. Apr. 1, 2010)..................................................27

Lexecon Inc. v. Milberg Weiss Bershad Hynes & Lerach, 523 U.S. 26 (1998)...................................................................................................................12

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Lincoln v. Vigil, 508 U.S. 182 (1993)...................................................................................................................9
Maine Cmty. Health Options v. United States, 140 S. Ct. 1308 (2020) .............................................................................................................12
Massachusetts v. EPA, 549 U.S. 497 (2007).................................................................................................................10
Michigan v. EPA, 135 S. Ct. 2699 (2015) .............................................................................................................14
Motor Vehicle Mfrs. Ass’n of U.S., Inc. v. State Farm Mut. Auto. Ins. Co., 463 U.S. 29 (1983)...................................................................................................................15
N.D. Family All. v. Bader, 361 F. Supp. 2d 1021 (D.N.D. 2005).......................................................................................20
N.Y. Progress & Prot. PAC v. Walsh, 733 F.3d 483 (2d Cir. 2013).....................................................................................................26
Nat’l Mining Ass’n v. U.S. Army Corps of Eng’rs, 145 F.3d 1399 (D.C. Cir. 1998) ...............................................................................................21
Nio v. U.S. Dep’t of Homeland Sec., 385 F. Supp. 3d 44 (D.D.C. 2019) ...........................................................................................21
Nken v. Holder, 556 U.S. 418 (2009).................................................................................................................26
PDK Labs Inc. v. Ashcroft, 338 F. Supp. 2d 1 (D.D.C. 2004) .............................................................................................20
Plyler v. Doe, 457 U.S. 202 (1982)...........................................................................................................10, 25
Prof’ls & Patients for Customized Care v. Shalala, 56 F.3d 592 (5th Cir. 1995) .................................................................................................6, 16
Reno v. Am.-Arab Anti-Discrimination Comm., 525 U.S. 471 (1999).................................................................................................................26
Safety Nat’l Cas. Corp. v. U.S. Dep’t of Homeland Sec., 4:05-cv-2159, 2005 WL 8168878 (S.D. Tex. Dec. 9, 2005) ...................................................27
SEC v. Chenery Corp., 318 U.S. 80 (1943)...................................................................................................................16
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Simmat v. U.S. Bureau of Prisons, 413 F.3d 1225 (10th Cir. 2005) (McConnell, J.) .....................................................................18
Sw. Elec. Power Co. v. EPA, 920 F.3d 999 (5th Cir. 2019) ...................................................................................................21
Texas v. EPA, 829 F.3d 405 (5th Cir. 2016) ...................................................................................................26
Texas v. United States, 106 F.3d 661 (5th Cir. 1997) ........................................................................................... passim
Texas v. United States, 106 F.3d 661 (5th Cir. 1997)) ....................................................................................................8
Texas v. United States, 328 F. Supp. 3d 662 (S.D. Tex. 2018) ............................................................................. passim
Texas v. United States, 340 F. Supp. 3d 579 (N.D. Tex. 2018) ....................................................................................20
Texas v. United States, 945 F.3d 355 (5th Cir. 2019) ...................................................................................................20
Texas v. United States, 95 F. Supp. 3d 965 (N.D. Tex. 2015) ......................................................................................27
Ulysse v. Dep’t of Homeland Sec., 291 F. Supp. 2d 1318 (M.D. Fla. 2003) .............................................................................11, 12
United States v. Juarez-Escobar, 25 F. Supp. 3d 774 (W.D. Pa. 2014)........................................................................................18
Zadvydas v. Davis, 533 U.S. 678 (2001).............................................................................................................4, 12
Statutes 5 U.S.C. § 551(4) ...........................................................................................................................16
5 U.S.C. § 553................................................................................................................................16
5 U.S.C. § 701........................................................................................................................8, 9, 18
5 U.S.C. § 701(a)(1).........................................................................................................................6
5 U.S.C. § 701(a)(2).........................................................................................................................7
5 U.S.C. § 705................................................................................................................................26
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5 U.S.C. § 706......................................................................................................................6, 17, 21 5 U.S.C. § 706(2)(A)................................................................................................................13, 21 5 U.S.C. § 706(2)(A), (D) ..............................................................................................................20 8 U.S.C. §§ 1221–1232....................................................................................................................7 8 U.S.C. § 1231...................................................................................................................... passim 8 U.S.C. § 1231(a)(1)(A) .................................................................................................5, 7, 11, 12 8 U.S.C. § 1231(a)(1)(C) ...............................................................................................................12 8 U.S.C. § 1231(a)(2).................................................................................................................3, 10 8 U.S.C. § 1231(h) ...................................................................................................................12, 13 42 U.S.C. § 1395dd........................................................................................................................10 Administrative Procedure Act (“APA”), 5 U.S.C. § 551, et seq. .......................................... passim Immigration and Nationality Act. 8 U.S.C. § 1101, et seq. .................................................5, 6, 7, 8 National Environmental Policy Act, 14 U.S.C. § 4321, et seq. .....................................................21 Other Authorities 42 C.F.R. § 440.225(c)...................................................................................................................24 42 C.F.R. § 440.255 .......................................................................................................................10 Fed. R. Civ. P. 56(f) .......................................................................................................................20 Fed. R. Civ. P. 65(a)(2)..................................................................................................................20 Memorandum from David Pekoske, Acting Director, U.S. Department of
Homeland Security, Jan. 20. 2021 .............................................................................................1 Memorandum of Understanding between Texas and the U.S. Department of
Homeland Security, Dec. 30, 2020 ............................................................................................1 U.S. Const. art. II, § 3 ..........................................................................................................6, 17, 19 11A Wright & Miller, Fed. Prac. & Proc. Civ. § 2950 (3d ed.) ....................................................20
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INTRODUCTION With the stroke of a pen, the Biden Administration granted at least temporary amnesty to tens of millions of illegal aliens. Ex. 1 (Memorandum from David Pekoske, Acting Director, U.S. Department of Homeland Security; hereinafter, the “January 20 Memorandum” or the “Memorandum”). In doing so, Defendants violated an express statutory command and their constitutional obligation to faithfully execute our Nation’s laws. The rest of the country is due, at the very minimum, consideration of less-extreme policies as well as notice and the opportunity to comment before such a sweeping change can occur. Indeed, Defendants expressly agreed to give Texas (and other States) the right to provide input on something that so directly affects its citizens and time to adjust for such a change. See Ex. 2 (Memorandum of Understanding between Texas and the U.S. Department of Homeland Security, Dec. 30, 2020; hereinafter the “Agreement”). The Biden Administration met none of these requirements. Having provided nothing in an administrative record suggesting any consideration of the January 20 Memorandum whatsoever— let alone consideration of alternative possible policies—Defendants’ actions are arbitrary and capricious as a matter of law. In an attempt to evade this self-evident result, Defendants now tell this Court that it lacks the power to even review those actions. But the law does not insulate Defendants’ total abdication of their responsibility to enforce clear directives by Congress from this Court’s review. Quite the opposite: this Court retains the historical power to review illegal executive actions by the federal government, including this one. Armstrong v. Exceptional Child Center, Inc., 575 U.S. 320, 327–28 (2015). This Court should set aside the January 20 Memorandum and enjoin Defendants from implementing it in any way.
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STATEMENT OF FACTS Defendants removed nearly 1,000,000 illegal aliens from the United States during the last three years for which total statistics are available. Ex. 3 (2019 Yearbook of Immigration Statistics, Table 39). In FY2019, just one of Defendants—U.S. Immigration and Customs Enforcement (“ICE”)—removed another 267,258 unlawfully present aliens. Ex. 4 at 19 fig. 13 (ICE FY2019 ERO Report). More than 150,000 of those individuals had prior criminal convictions, and another 23,000 had pending criminal charges. Id. at 22 fig. 16. That includes more than 67,000 convicted criminals from the four ICE areas of operation in Texas, Ex. 5 at 5 (ERO FY2019 Local Statistics), and over 5,000 known or suspected gang members, Ex. 4 at 23 fig. 18. Over 91% of the removals of individuals arrested by ICE away from the border were of convicted criminals or had pending criminal charges (nearly 80,000 individuals in one year alone). Id. at 22 fig. 17.
Under the terms of the January 20 Memorandum, none of those tens of thousands of criminals would have been removed, except for the 58 known or suspected terrorists. Id. at 23 fig. 19; see also Ex. 6 ¶ 30 (Decl. of T. Homan).
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In just the first four months of FY2021, ICE removed nearly 24,000 aliens, more than double the number that it released pursuant to some type of alternative to removal. Ex. 7, table “ICE Removals: FY2021 YTD” (FY2021 ICE Detention Statistics).1 Based on these numbers, the 100-day pause called for in the January 20 Memorandum would result in tens of thousands of additional aliens remaining in the United States, many of whom would remain or move to Texas. See also Ex. 8 (ICE.gov Homepage) (showing 509 removals on average per day in FY2020).
Of those still in the United States, an average of approximately 15,000 illegal aliens were in ICE’s custody each day of January 2021. Ex. 7, table “ICE Facilities Data, FY21 YTD.” Over 8,000 of those who were in custody had prior convictions for criminal offenses and another 2,700 had criminal charges pending. Id. ICE housed over half of those unlawfully present aliens in its 26 facilities located in Texas, over 1,600 of whom had some level of prior criminality. Id.
During the 90-day period after entry of a final order of deportation, the Department of Homeland Security (“DHS”) “shall detain the alien” unless the alien is removed. See 8 U.S.C. § 1231(a)(2). But that mandate loses its force after the removal period ends, to address the question the Court posed to the parties in ECF 51. See also RAICES Em. Mot. to Intervene at 5, ECF 28 (“After that period, [Section 1231] generally contemplates release of persons with final removal orders.”). Under Section 1231(a)(3) and (a)(6), DHS must release an alien after the removal period ends unless the alien is “determined by the Attorney General to be a risk to the community or unlikely to comply with the order of removal.” And even in light of such a determination, the statute leaves detention to Defendants’ discretion. Id. (such an alien “may be detained beyond the removal period”). As such, the 100-day pause would run the clock out on any illegal alien’s 90-
1 A native Excel version of this exhibit can be found here: https://www.ice.gov/doclib/detention/FY21detentionstats.xlsx
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day removal period, meaning that ICE would, generally speaking, be forced to release illegal aliens both during and following the 100-day pause.
But even if such an alien is detained, the detention cannot go on indefinitely. An alien must be released if there is not a “significant likelihood of removal in the foreseeable future,” commonly referred to as “SLRFF.” See Zadvydas v. Davis, 533 U.S. 678, at 699–700 (2001). The 100-day deportation pause would not only illegally delay removals for the vast majority of illegal aliens, it would make removals for many more difficult or impossible—including for the thousands of convicted criminals currently in ICE’s custody. The ICE officer in charge of the Houston Field Office understood the significance of that pause: “Per the [Deputy Field Office Director], all cases are to be considered NO SLRFF.” ECF 14.1. While the Field Office Director ordered that directive rescinded, he or she did not provide any other meaningful guidance—and did not say that the Deputy was incorrect. Thus, should the blanket pause on removals in the January 20 Memorandum take effect, ICE could lose control of criminals who are in this country illegally and who have already been located, apprehended, and convicted. See Ex. 6 ¶ 32–34. These convicted criminals are particularly unlikely to comply with future removal orders and further present a heightened risk to Texas and Texans.
Additionally, the ICE-specific custody statistics do not account for illegal aliens who are in the custody of state and local law enforcement. According to Defendants’ own estimate, 90 percent of incarcerated aliens are subject to state or local detentions. Ex. 9 at 2 (DHS Alien Incarceration Report, Fiscal Year 2017). In one fiscal year alone, the Texas Department of Criminal Justice housed nearly 9,000 illegal alien criminals. Ex. 10 ¶ 6 (Decl. of R. Waltz). Should ICE no longer be able to remove those unlawfully present criminals, they would be released into
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Texas’s communities, where they are likely to commit additional crimes. Ex. 11 (Decl. of B. Waybourn).
Without considering costs like these, the Biden Administration issued the January 20 Memorandum on its very first day in office. Federal law requires that Defendants’ action be set aside and further enjoined pending the Court’s final consideration.
SUMMARY OF THE ARGUMENT No procedural hurdle prevented this Court from ruling on Texas’s application for a temporary restraining order, and none forecloses its consideration of the merits of this case. The 100-day pause on almost all removals is “so extreme as to amount to an abdication of [Defendants’] statutory responsibilities,” Heckler v. Chaney, 470 U.S. 821, 833 n.4 (1985), so it cannot be committed to agency discretion by law. The 100-day pause is “sufficiently final and immediate” to constitute final agency action, and Defendants “have disregarded their previous legal ‘obligations’ and adjudication of the aliens’ ‘rights’” in violation of Section 1231’s mandate. ECF 16 at 8–9. Additionally, Texas has already “provided evidence that the 100-day pause will result in millions of dollars of damage to its public fisc,” id. at 12, and that evidence is expanded upon in this motion and the attached exhibits. On the merits, Texas agrees with this Court’s preliminary analysis that the 100-day pause “is clearly not in accordance with, or is in excess of, the authority accorded to” Defendants under 8 U.S.C. § 1231(a)(1)(A). ECF 16 at 6. Likewise, the “January 20 Memorandum not only fails to consider potential policies more limited in scope and time, but it also fails to provide any concrete, reasonable justification for a 100-day pause on deportations.” Id. at 10. The non-existent administrative record confirms the Court’s suspicions: Defendants plainly failed to consider any alternative policy to the one they announced, including one which would not violate section
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1231(a)(1)(A). Indeed, Defendants failed to consider their obligations under the INA in the first place. Additionally, such a change that imposes “rights and obligations” is required to first go through notice-and-comment rulemaking. Prof’ls & Patients for Customized Care v. Shalala, 56 F.3d 592, 595 (5th Cir. 1995). Finally, not only did the January 20 Memorandum violate the Administrative Procedure Act (“APA”), it violated Defendants’ obligations to Texas as well as their duty to “take Care that the Laws be faithfully executed.” U.S. Const. art. II, § 3.
In their most recent filing with the Court, Defendants twice say that “Texas’s claims represent pure legal issues.” ECF 30 at 6; see also id. (“[T]hey present purely legal issues.”). They do not appear to dispute any of the facts Texas has presented above. And nothing in the administrative record provides a basis to justify Defendants’ radical departure from their statutory obligations. As a result, Texas respectfully requests that this Court enjoin the implementation or enforcement of the January 20 Memorandum and set it aside pursuant to 5 U.S.C. § 706.
ARGUMENT I. No procedural issue prevents this Court’s review.
The Biden Administration cannot hide its complete refusal to enforce this Nation’s immigration laws behind any procedural bars to this Court’s review.
A. The January 20 Memorandum is subject to judicial review. Defendants argue that the January 20 Memorandum is not reviewable, see ECF 8 at 7–8 (citing 5 U.S.C. § 701), but this Court properly rejected that argument, see ECF 16 at 7–8. First, no “statutes preclude judicial review.” 5 U.S.C. § 701(a)(1). Defendants rely on Section 1252(g) and Section 1252(f), see ECF 8 at 7, but neither provision applies here. Section 1252(g) prevents courts from hearing aliens’ challenges to final orders of removal, not Texas’s challenge to the January 20 Memorandum. It provides that “no court shall have jurisdiction to hear any cause or claim by or on behalf of any alien arising from the decision or action by the Attorney
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General to commence proceedings, adjudicate cases, or execute removal orders against any alien under” the Immigration and Nationality Act. 8 U.S.C. § 1252(g). As this Court has already held, “Texas is not an alien. Nor does Texas bring this action ‘on behalf of’ any alien.” ECF 16 at 7. As a result, “§ 1252(g) does not apply to this Court’s review.” Id. (citing Texas, 809 F.3d at 164). Moreover, Texas’s claim does not “aris[e] from the decision or action by the Attorney General to commence proceedings, adjudicate cases, or execute removal orders against any alien.” 8 U.S.C. § 1252(g). On the contrary, Texas’s claim arises from Defendants’ announcement that they would not execute removal orders. See Texas, 809 F.3d at 164 (holding that DAPA was reviewable).
Section 1252(f) is likewise irrelevant. According to Defendants, “§ 1252(f) provides that only the Supreme Court has authority to enjoin operation of 8 U.S.C. §§ 1221–1232, other than cases brought by individuals,” ECF 8 at 7, but Texas is not seeking to enjoin operation of those statutory sections. Far from it; Texas seeks an injunction against a memorandum functionally suspending Section 1231.
Second, granting blanket amnesty to millions of illegal aliens is not “committed to agency discretion by law.” 5 U.S.C. § 701(a)(2). As this Court found, “§ 1231(a)(1)(A) clearly accords no discretion to the Attorney General to blatantly disregard the 90-day removal rule without finding that an enumerated exception applies.” ECF 16 at 8.
The case cited by Defendants for the “classic exercise of prosecutorial discretion,” ECF 8 at 7, shows why the class-wide grant of amnesty is not committed to agency discretion by law. See Heckler, 470 U.S. 821. That case dealt with individual instances of prosecutorial discretion, which the Supreme Court ruled were not reviewable. But the Court expressly distinguished “a situation where it could justifiably be found that the agency has ‘consciously and expressly adopted a general policy’ that is so extreme as to amount to an abdication of its statutory responsibilities.”
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Id. at 833 n.4 (citing Adams v. Richardson, 480 F.2d 1159 (D.C. Cir. 1973) (en banc)). That is exactly what the January 20 Memorandum did.
Additionally, Heckler v. Chaney recognized that any presumption of unreviewability for individualized enforcement decisions “may be rebutted where the substantive statute has provided guidelines for the agency to follow in exercising its enforcement powers.” Id. at 833. “Congress did not set agencies free to disregard legislative direction in the statutory scheme that the agency administers. Congress may limit an agency’s exercise of enforcement power if it wishes, either by setting substantive priorities, or by otherwise circumscribing an agency’s power to discriminate among issues or cases it will pursue.” Id. That is exactly what Congress did in Section 1231.
Defendants also point to the Fifth Circuit’s note that “section 1103 places no substantive limits on the Attorney General and commits enforcement of the INA to her discretion.” ECF 8 at 7–8 (quoting Texas v. United States, 106 F.3d 661, 667 (5th Cir. 1997)). But in this case, Texas’s claim is not based on Section 1103. That one provision may not set an enforceable limit on Defendants’ discretion says nothing about whether another does. See Dep’t of Homeland Sec. v. Regents of the Univ. of Cal., 140 S. Ct. 1891, 1914 (2020) (Thomas, J., concurring in the judgment in part and dissenting in part) (noting that Section 1103 “must be read alongside the express limits contained within the statute”). Moreover, that case turned on the lack of a “workable standard against which to judge the agency’s exercise of discretion.” Texas, 106 F.3d at 667. Here, there is a workable standard: A 100-day “pause” in removals will necessarily cause Defendants to violate Section 1231’s 90-day deadline.
Defendants’ reviewability argument fails for the reasons explained above. But even if Defendants were right about reviewability under Section 701, it would not preclude the Court from considering Counts I and V (based on the Agreement), Count III (based on the Take Care Clause),
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or Count IV (based on the lack of notice-and-comment rulemaking). Texas’s claims based on the Agreement and the Constitution are properly before the Court even without the APA, so Section 701 is not an obstacle. And Texas’s arguments that Defendants were obligated to consider lessrestrictive policies before implementing the Memorandum and that Defendants were “required to abide by the familiar notice-and-comment rulemaking provisions of the APA” presents a procedural claim “quite apart from the matter of substantive reviewability.” Lincoln v. Vigil, 508 U.S. 182, 195 (1993) (considering whether the agency should have used notice-and-comment rulemaking after holding that the substance of the agency’s decision was discretionary and unreviewable).
B. The January 20 Memorandum is a final agency action. An agency’s action is “final” for the purposes of judicial review if two conditions are met: “First, the action must mark the ‘consummation’ of the agency’s decision making process—it must not be of a merely tentative or interlocutory nature. And second, the action must be one by which ‘rights or obligations have been determined,’ or from which ‘legal consequences will flow.’” Bennett v. Spear, 520 U.S. 154, 177–78 (1997). The January 20 Memorandum “direct[s] an immediate pause on removals of any noncitizen with a final order of removal.” Ex. 1 at 3. That is not tentative. It would have the immediate effect of determining rights and obligations: federal officials are obliged not to remove almost all illegal aliens. RAICES Em. Mot. to Intervene Ex. 2 ¶ 15, ECF 28-2 (“The memo’s temporary relief from the possibility or being removed thus provides a significant benefit for our clients with final orders . . . .”). And Texas will be obliged to provide social services to those aliens. See Texas v. United States, 328 F. Supp. 3d 662, 737 (S.D. Tex. 2018). In addition, the January 20 Memorandum causes “legal consequences” like increasing Defendants’ ability to release illegal aliens from custody. “During the removal period, the Attorney
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General shall detain the alien.” 8 U.S.C. § 1231(a)(2). But once Defendants’ 100-day pause extends an alien’s custody beyond the removal period, the alien can be “subject to supervision” (i.e., released from custody). Id. § 1231(a)(3); see also ECF 51. And again, the release into, and continued illegal presence of, illegal aliens in Texas will require the State to provide those aliens with social services—another legal consequence flowing from the Memorandum.
C. Texas has standing to bring these claims. States, such as Texas, “bear[] many of the consequences of unlawful immigration.” Arizona v. United States 567 U.S. 387, 397 (2012). Texas will suffer a concrete injury should the 100-day pause take effect. Once a concrete injury is shown, the magnitude of that injury is irrelevant to the standing inquiry. See, e.g., Massachusetts v. EPA, 549 U.S. 497, 525–26 (2007). Texas, as a State, also receives “special solicitude” in the standing analysis. Id. at 520; see also Texas, 809 F.3d at 151. Although Plaintiff does not need special solicitude to establish standing on any of the grounds covered above, special solicitude under Massachusetts makes standing an especially easy question here. Texas has already been harmed and faces additional immediate injury by the rushed implementation of the January 20 Memorandum. The Memorandum has already deprived Texas of the option of adjusting its policies in light of the federal shift. As DHS itself has acknowledged, “[t]he harm to Texas is particularly acute where its budget has been set months or years in advance and it has no time to adjust its budget to respond to DHS policy changes.” Ex. 2 § II. Indeed, Texas is required by federal law to incur some of these costs. For example, the Supreme Court has held that States are constitutionally obligated to provide free education to unlawfully present aliens. Plyler v. Doe, 457 U.S. 202 (1982). Similarly, Medicaid requires provision of emergency services, regardless of immigration status, as a condition of participation. See 42 U.S.C. § 1395dd; 42 C.F.R. § 440.255. Texas expends funds to provide these services to
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illegal immigrants each year and must account for those anticipated expendituresin its budget. Ex. 7 (Decl. of L. Lopez) & Ex. 8 (Decl. of L. Kalakanis). Additionally, in one year alone, Texas housed 8,951 undocumented criminal aliens for a total of 2,439,110 days. Ex. 10 ¶ 6. Texas’s estimated cost to do so was $152,054,117, of which only $14,657,739 was reimbursed by the federal government. Id. ¶¶ 6 & 7; see also Ex. 14 (DPS Texas Criminal Illegal Alien Data) (detailing the tens of thousands of illegal aliens arrested by Texas law enforcement over the past decade). Those amounts will increase should DHS halt nearly all removals from Texas. As the Court has already found, “the 100-day pause will result in millions of dollars of damage to its public fisc by causing it to increase its spending on public services to illegal aliens.” ECF 16 at 5. II. The January 20 Memorandum violates the Administrative Procedure Act.
The January 20 Memorandum violates the Administrative Procedure Act in multiple ways, any one of which is sufficient to set aside the unlawful agency action.
A. The January 20 Memorandum exceeds Defendants’ statutory jurisdiction, authority, or limitation.
Federal immigration law requires that “when an alien is ordered removed, the Attorney General shall remove the alien from the United States within a period of 90 days.” 8 U.S.C. § 1231(a)(1)(A). That obligation has been transferred to the Secretary of Homeland Security. See Clark v. Martinez, 543 U.S. 371, 375 n.1 (2005). Now, “DHS has a statutory duty to effect removal within the 90-day period, if possible.” Ulysse v. Dep’t of Homeland Sec., 291 F. Supp. 2d 1318, 1325 (M.D. Fla. 2003).
The 90-day limit is important to Congress. “Congress intended for inadmissible, excludable, or removable aliens to be deported within 90 days, if possible.” Id. “This is evidenced not only by the clear language of the statute, but also by the change in statutory language in 1996.” Id. In 1996, Congress “reduced the amount of time that the Attorney General has to deport an alien
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from six months to 90 days.” Id. Of course, aliens may thwart DHS’s efforts to remove them, so Congress “extended the removal period if the alien does not cooperate.” Id.; see 8 U.S.C. § 1231(a)(1)(C).
Congress did not give DHS the option of disregarding the 90-day removal deadline. The statute uses mandatory language. DHS “shall”—not may—“remove the alien from the United States within a period of 90 days.” 8 U.S.C. § 1231(a)(1)(A). Courts routinely interpret “shall” as creating a mandatory duty. See, e.g., Maine Cmty. Health Options v. United States, 140 S. Ct. 1308, 1320 (2020) (“Unlike the word ‘may,’ which implies discretion, the word ‘shall’ usually connotes a requirement.”); Lexecon Inc. v. Milberg Weiss Bershad Hynes & Lerach, 523 U.S. 26, 35 (1998) (“[T]he mandatory ‘shall’ . . . normally creates an obligation impervious to judicial discretion.”). This Court has done the same. “Here, ‘shall’ means must.” ECF 16 at 6.
The exceptions cited by Defendants do not apply. First, they point to 8 U.S.C. § 1231(a)(1)(C) as providing “extensions beyond 90 days,” but as Texas explained in its Application for a Temporary Restraining Order, that provision is about “extend[ing] the removal period if the alien does not cooperate.” ECF 2 at 10 (quoting Ulysse, 291 F. Supp. 2d at 1325). That case specifically held that “DHS has a statutory duty to effect removal within the 90-day period, if possible.” Id. Likewise, Section 1231(a)(3) provides for supervision after the 90-day removal period, but that is not surprising as Congress expressly recognized that aliens might delay their own removals. That is no excuse for Defendants to delay those removals themselves. And Defendants “overstate[] the scope of [8 U.S.C. § 1231(h)’s] limitations.” ECF 16 at 9. That subsection simply means that Section 1231 does not create a substantive right that would be enforceable through an implied cause of action. It does not matter here, where the APA allows suits to challenge agency action that violates a statute. See Zadvydas v. Davis, 533 U.S. 678, 687–
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88 (2001) (holding that Section 1231(h) “does not deprive an alien of the right to rely on [a different statute] to challenge detention that is without statutory authority”).
Finally, Defendants suggest that one of the January 20 Memorandum’s exceptions forecloses any claim that the Memorandum violates the law. The fourth exception applies when “the Acting Director of ICE, following consultation with the General Counsel, makes an individualized determination that removal is required by law.” But as their briefing demonstrates, Defendants do not agree with Texas that Section 1231 requires removals to occur within 90 days. If they did, then the fourth exception would swallow the rule, and there would have been no reason to issue the Memorandum in the first place.
B. The January 20 Memorandum is arbitrary and capricious. The APA prohibits agency actions that are “arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law.” 5 U.S.C. § 706(2)(A). The January 20 Memorandum is arbitrary and capricious because it “not only fails to consider potential policies more limited in scope and time, but it also fails to provide any concrete, reasonable justification for a 100-day pause on deportations.” ECF 16 at 10. Defendants have now filed the administrative record. See ECF 59. There is nothing in it to change the Court’s analysis. Indeed, there is nothing in the six pages that constitute the whole of the record at all except for the January 20 Memorandum and a contemporaneous executive order from President Biden, which does not speak to any of the Court’s concerns. ECF 59.1. Defendants claim the Biden Administration needs time to reevaluate immigration policies and procedures. But they never say why that evaluation cannot occur while they proceed with removals as Congress directed. There is no explanation for what resources Defendants are diverting from the removals, why diverting those resources is sensible, or why diverting resources from some other aspect of their activities would not be better. Former directors of ICE (who were
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career federal immigration employees) were not consulted about the potential implications with such a shift in immigration enforcement, as prior administrations had. Ex. 6; Ex. 15 ¶ 22–23 (Decl. of R. Vitiello). And Defendants cannot plausibly argue that figuring out which removals to prioritize requires stopping all removals.
Failing to consider important costs of a new policy renders that policy arbitrary and capricious. “[A]gency action is lawful only if it rests ‘on a consideration of the relevant factors.’” Michigan v. EPA, 135 S. Ct. 2699, 2706 (2015). But DHS ignored the harms that pausing removals will cause. The January 20 Memorandum does not mention those costs at all. Considering such policy concerns “was the agency’s job, but the agency failed to do it.” Regents of the Univ. of Cal., 140 S. Ct. at 1914. DHS’s failure is particularly conspicuous because DHS has previously recognized the importance of removing illegal aliens subject to a final order of removal. See, e.g., Ex. 2 § II.
DHS based its decision to “pause” removal for 100 days on “enhanc[ing] border security,” “conduct[ing] immigration and asylum processing at the southwest border fairly and efficiently,” and “comply[ing] with COVID-19 protocols.” Ex. 1 at 3. But those are not new considerations, and DHS did not claim otherwise. Nor did DHS explain how formally stopping the vast majority of removals would address these needs. DHS also alluded to its “highest enforcement priorities” without explaining what those priorities are, how they had changed, or how pausing removals will help DHS achieve them. Ex. 1 at 3. And this Court has already seen evidence of the confusion that the Biden Administration caused on its very first day in office. See ECF 14.1.
The Supreme Court recently held that a DHS immigration action was arbitrary and capricious because it was issued “‘without any consideration whatsoever’ of a [more limited] policy.” Regents of the Univ. of Cal., 140 S. Ct. at 1912 (quoting Motor Vehicle Mfrs. Ass’n of
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U.S., Inc. v. State Farm Mut. Auto. Ins. Co., 463 U.S. 29. 51 (1983)). The January 20 Memorandum also fails this requirement. It creates a default rule against removal, despite federal immigration law requiring removal. It does not explain how the several narrow exceptions to this sweeping change advance the stated interests that precipitated the Memorandum, nor does it explain why other exceptions—that is, additional enforcement of duly enacted immigration laws—would harm those interests. The Memorandum is wholly devoid of explanation as to why DHS has deemed enforcement categorically inappropriate, let alone why highly restricted enforcement is preferable to more limited restrictions. This, too, is arbitrary.
Additionally, the Supreme Court has held that “an agency changing its course by rescinding a rule is obligated to supply a reasoned analysis for the change beyond that which may be required when an agency does not act in the first instance.” State Farm, 463 U.S. at 42. In this case, DHS did not even terminate the Agreement. See Ex. 2 § XV. Instead, it simply violated the Agreement without providing any “reasoned analysis for” doing so. Id. Nor did DHS explain why it was abandoning its previous policy of “enforcing the immigration laws of the United States to prohibit the entry into, and promote the return or removal from, the United States of inadmissible and removable aliens.” Ex. 2 § III.A.1.a.
To be sure, after litigation began, DHS purported to terminate the Agreement (albeit without following the Agreement’s termination provision), see Ex. 16 (2.2.2021 DHS letter to Texas), but that simply highlights the problem. DHS is supposed to consider factors like the Agreement before making decisions. Any new defenses of the January 20 Memorandum based on DHS’s later attempt to terminate the Agreement are “impermissible post hoc rationalizations.” Regents of the Univ. of Cal., 140 S. Ct. at 1909. Indeed, because the administrative record lacks any evidence of any pre-Memorandum considerations, by definition any justification Defendants
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could give is necessarily a post hoc rationalization for a decision they have already illegally made. Because the January 20 Memorandum is not sufficiently justified, DHS acted arbitrarily and capriciously. Any new explanations that may be provided to this Court by DHS’s counsel are irrelevant. “The grounds upon which an administrative order must be judged are those upon which the record discloses that its action was based.” SEC v. Chenery Corp., 318 U.S. 80, 87 (1943). As the record provides no such grounds, the Memorandum is arbitrary and capricious as a matter of law.
C. The January 20 Memorandum was required to go through notice-and-comment rulemaking.
The January 20 Memorandum is a substantive or legislative rule2 that required notice-andcomment rulemaking under the APA. See 5 U.S.C. § 553. Neither of the two narrow exceptions in Section 553 apply, so the notice-and-comment procedures must be adhered to “scrupulously.” Prof’ls & Patients for Customized Care, 56 F.3d 592 at 595.
As opposed to general statements of policy, substantive rules are those that (1) impose rights and obligations; and (2) do not leave the agency and its decisionmakers free to exercise discretion. Texas, 809 F.3d at 171. As Judge Hanen held in ruling that DACA was a substantive rule that required notice-and-comment rulemaking: “These factors are not treated like different elements of a cause of action, both of which must be proved; but instead a ‘matter of judgment is involved in distinguishing between rules however discretionary in form, that effectively
2 5 U.S.C. § 551(4) (“‘[R]ule’ means the whole or a part of an agency statement of general or particular applicability and future effect designed to implement, interpret, or prescribe law or policy or describing the organization, procedure, or practice requirements of an agency and includes the approval or prescription for the future of rates, wages, corporate or financial structures or reorganizations thereof, prices, facilities, appliances, services or allowances therefor or of valuations, costs, or accounting, or practices bearing on any of the foregoing[.]”).
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circumscribe administrative choice.’” Texas, 328 F. Supp. 3d at 731 (citing Am. Bus Ass’n v. United States, 627 F.2d 525, 530 (D.C. Cir. 1980)).
On its face, the January 20 Memorandum would immediately “circumscribe administrative choice” by halting all but a tiny fraction of removals. No discretion would be left to the individual immigration officers, as an alien could be removed only by approval from the acting director of ICE. And in ruling that the January 20 Memorandum is a final agency action, this Court has already determined that “rights or obligations have been determined.” ECF 16 at 8; see also RAICES Em. Mot. to Intervene Ex. 2 ¶ 15, ECF 28-2 (“The memo’s temporary relief from the possibility or being removed thus provides a significant benefit for our clients with final orders . . . .”). As such, the APA affords Texas and the rest of the country the bare minimum of the notice-and-comment rulemaking procedure before DHS can affect such a sweeping change to the Nation’s immigration policy. III. Abdicating responsibility for removing illegal aliens is unconstitutional.
The President and those who work for him in the Executive Branch are obligated to “take Care that the Laws be faithfully executed.” U.S. Const. art. II, § 3. The January 20 Memorandum violates that constitutional obligation.
First, the January 20 Memorandum contradicts 8 U.S.C. § 1231. Systematically violating a statute across millions of cases is the opposite of ensuring that such statute is faithfully executed. Of course, the Court can address Defendants’ violation of Section 1231 under the APA, as discussed above. And a violation of the Constitution is also a violation of the APA—indeed, the Take Care Clause provides an independent basis that the Memorandum is contrary to law. See 5 U.S.C. § 706. But if the Court were to conclude that the APA did not provide a proper cause of action in this case, Texas’s constitutional claim would present the same merits question on its own.
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Federal courts have long exercised the power to enjoin federal officers from violating the Constitution. See Armstrong, 575 U.S. at 327–28 (discussing “a long history of judicial review of illegal executive action, tracing back to England”). Texas has a cause of action “at equity.” Green Valley Special Util. Dist. v. City of Schertz, 969 F.3d 460, 475 (5th Cir. 2020) (en banc). “Equity thus provides the basis for relief—the cause of action, so to speak”—when a plaintiff seeks prospective relief for a constitutional violation committed by a federal official. Simmat v. U.S. Bureau of Prisons, 413 F.3d 1225, 1232 (10th Cir. 2005) (McConnell, J.). As a result, even if the Court disagreed with Texas’s arguments above, see supra Part I.A–B, it would not affect Texas’s right to relief on its constitutional claim. See Dart v. United States, 848 F.2d 217, 224 (D.C. Cir. 1988) (explaining that the APA’s reviewability limitation in Section 701 “serves only to take away what the APA has otherwise given—namely, the APA’s own guarantee of judicial review”—, “not repeal the review of ultra vires actions that was recognized long before” the APA); Simmat, 413 F.3d at 1233 n.9 (allowing the plaintiff’s constitutional claim to proceed even though he “appear[ed] to concede that his claim does not satisfy the APA’s requirement of ‘final agency action’”).
Second, the January 20 Memorandum does not provide for individualized consideration typical of prosecutorial discretion. Indeed, it provides precisely the opposite: rather than an exercise of prosecutorial discretion, where an executive actor acknowledges the obligation to enforce a law generally but elects not to do so in a specific case, the Memorandum abdicates the responsibility to enforce federal immigration laws and authorizes specific officials to make individualized determinations to enforce those laws against specific illegal aliens. The Memorandum does not prevent the initiation of removal proceedings—instead, it creates sweeping categorical rules preventing implementation of final orders of removal. See United States v.
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Juarez-Escobar, 25 F. Supp. 3d 774, 787 (W.D. Pa. 2014) (holding that “Executive Action goes beyond prosecutorial discretion because . . . it provides for a systematic and rigid process by which a broad group of individuals will be treated differently than others based upon arbitrary classifications, rather than case-by-case examination”). No executive has the discretion to categorically refuse to enforce a duly enacted law; the Constitution does not provide the President or his subordinates with that discretion. See U.S. Const. art. II, § 3.
Third, DHS cannot justify stopping removals as an example of prosecutorial discretion based on a new set of priorities. True, the January 20 Memorandum elsewhere directs DHS employees to allocate resources to three enumerated priorities that will go into effect on February 1, 2021. Ex. 1 at 2-3. But it clarifies that “nothing in this memorandum prohibits the apprehension or detention of individuals unlawfully in the United States who are not identified as priorities herein.” Id. at 3. When it addresses the removal of illegal aliens, by contrast, the January 20 Memorandum creates categorical prohibitions. Rather than discuss the relative importance of different enforcement priorities, it simply stops removals. And rather than tie that decision to new enforcement priorities, the Memorandum orders the ceasing of removals before DHS’s new priorities even take effect. IV. Defendant DHS violated the Agreement.
The Agreement requires DHS to notify and consult with Texas before “pausing or decreasing the number of returns or removals of removable or inadmissible aliens from the country.” Ex. 2 § III.A.2.c. But DHS did not notify or consult with Texas before “directing an immediate pause on removals” in the January 20 Memorandum. Ex. 1 at 3. As a result, the January 20 Memorandum is invalid, and Texas is entitled to injunctive relief. See Ex. 2 § VI.
The January 20 Memorandum provides no explanation for its failure to follow the Agreement, nor any acknowledgement of it. (As discussed above, that is an independent problem
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under the APA. See supra Part II.B.) DHS’s flagrant disregard of the Agreement in the January 20 Memorandum is inconsistent with its earlier acknowledgement that the Agreement is “a binding and enforceable commitment between DHS and Texas.” Ex. 2 § II.3 V. The APA requires a final judgment setting aside the January 20 Memorandum.
Based on the clear unlawfulness of the January 20 Memorandum, this case is ready for a final judgment. The Court may do so after notice and an opportunity to respond. See Fed. R. Civ. P. 56(f). And the Court may do so based on solely the record developed in its consideration of Texas’s motion for a preliminary injunction. Id. 65(a)(2) (district courts may consolidate a preliminary injunction hearing with a trial on the merits); 11A Wright & Miller, Fed. Prac. & Proc. Civ. § 2950 (3d ed.); see, e.g., Texas v. United States, 340 F. Supp. 3d 579, 592 (N.D. Tex. 2018) (O’Connor, J.), aff’d in part, vacated in part, remanded, 945 F.3d 355 (5th Cir. 2019), cert. granted sub nom Texas v. California, No. 19-1019 (argued Nov. 10, 2020); N.D. Family All. v. Bader, 361 F. Supp. 2d 1021, 1030 (D.N.D. 2005) (converting a preliminary-injunction into a summary-judgment motion); PDK Labs Inc. v. Ashcroft, 338 F. Supp. 2d 1, 6 (D.D.C. 2004) (granting summary judgment based on a preliminary-injunction motion).
In their most recent filing with the Court, Defendants twice say that “Texas’s claims represent pure legal issues.” ECF 30 at 6; see also id. (“[T]hey present purely legal issues.”). Defendants have produced a six-page administrative record with absolutely no documents indicating any consideration whatsoever of the costs of the Memorandum or other, narrower policies prior to the Memorandum’s issuance. No additional discovery is needed. There are no
3 This defect also renders the January 20 Memorandum “arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law” and “without observance of procedure required by law.” 5 U.S.C. § 706(2)(A), (D). For this reason, the APA requires the Court to “hold unlawful and set aside” the January 20 Memorandum. Id. § 706(2). The Court should also enjoin the individual defendants from enforcing the January 20 Memorandum because such enforcement would be ultra vires and beyond the authority the agency defendants could delegate.
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genuine disputes as to any material facts because the administrative record provides no basis for upholding the Memorandum. This case is ripe for final resolution on the merits.
The remedy for Defendants’ unlawful action is clear—it must be set aside. Under Section 706 of the APA, 5 U.S.C. § 706, when a reviewing court finds that an agency rule violates the APA, it “‘shall’—not may—‘hold unlawful and set aside’ the agency action.” Sw. Elec. Power Co. v. EPA, 920 F.3d 999, 1022 (5th Cir. 2019) (citing Checkosky v. SEC, 23 F.3d 452, 491 (D.C. Cir. 1994)). When a court “hold[s] unlawful and set[s] aside” agency rules that are “arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law,” 5 U.S.C. § 706(2)(A), “the ordinary result is that the rules are vacated.” Nat’l Mining Ass’n v. U.S. Army Corps of Eng’rs, 145 F.3d 1399, 1409 (D.C. Cir. 1998) (citation omitted).
Section 706 is not limited to appellate courts; district courts have a duty to vacate unlawful agency actions as well. See Nio v. U.S. Dep’t of Homeland Sec., 385 F. Supp. 3d 44, 68–69 (D.D.C. 2019) (vacating arbitrary and capricious Department of Defense requirements rather than issuing a permanent injunction, and stating that “[g]enerally, when a court finds that a challenged action is arbitrary and capricious, the remedy is vacatur”); Am. Stewards of Liberty v. Dep't of Interior, 370 F. Supp. 3d 711, 728 (W.D. Tex. 2019) (vacating a Department of the Interior conclusion that did not follow Congress’s set standard, and noting that “courts retain a role, and an important one, in ensuring that agencies have engaged in reasoned decisionmaking”) (quoting Judulang v. Holder, 565 U.S. 42, 53 (2011)); AquAlliance v. U.S. Bureau of Reclamation, 312 F. Supp. 3d 878, 880 (E.D. Cal. 2018) (vacating an agency report that violated the National Environmental Policy Act and stating that vacatur is the “presumptive remedy” for unlawful agency action).
And Defendants must be permanently enjoined nationwide from implementing or enforcing this unlawful Memorandum. As this Court has already stated, the “January 20 Memorandum’s 100-day pause plainly affects national immigration policy, which demands
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‘uniformity.’” ECF 16 at 16; see also Texas, 328 F. Supp. 3d at 682 (holding that the “requirement that immigration policy be uniform” must inform the remedial analysis). Setting aside the January 20 Memorandum is consistent with “strong federal interest in the uniformity of federal immigration law.” Batalla Vidal v. Nielsen, 279 F. Supp. 3d 401, 438 (E.D.N.Y. 2018) (citing U.S. Const. art. I, § 8, cl. 4). And because the January 20 Memorandum “impacts numerous statutes and agency regulations concerning removals and detention periods, its partial implementation would inevitably detract from Congress’s “integrated scheme of regulation.” ECF 16 at 16 (quoting Texas, 809 F.3d at 188). Finally, “a geographically limited injunction of the January 20 Memorandum’s 100-day pause on removals would not effectively protect Texas’s interests because of the free flow of movement among the states.” Id.; see also Texas, 809 F.3d at 188; Ex. 17 (Gone to Texas); Ex. 18 (Texas Foreign Born Immigration). VI. Texas will suffer irreparable harm if an injunction is not granted.
“To show irreparable injury if threatened action is not enjoined, it is not necessary to demonstrate that harm is inevitable and irreparable.” Humana, Inc. v. Avram A. Jacobson, M.D., P.A., 804 F.2d 1390, 1394 (5th Cir. 1986). Instead, “[t]he plaintiff need show only a significant threat of injury from the impending action, that the injury is imminent, and that money damages would not fully repair the harm.” Id. (footnote omitted).
Texas makes that showing in two ways. First, DHS admitted that Texas policies like the January 20 Memorandum irreparably injure Texas. Second, Texas submits declarations quantifying some of the unrecoverable financial costs of providing federally mandated welfare benefits the tens of thousands of unlawfully present aliens who would otherwise be removed during the 100-day “pause.” By increasing those costs, the January 20 Memorandum will irreparably harm Texas.
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A. DHS admits Texas faces irreparable injury. DHS has already acknowledged that policies like the January 20 Memorandum cause Texas significant harm. “Texas, like other States, is directly and concretely affected by changes to DHS rules and policies that have the effect of easing, relaxing, or limiting immigration enforcement. Such changes can impact Texas’s law enforcement, housing, education, employment, commerce, and healthcare needs and budgets.” Ex. 2 § II. Indeed, DHS has specifically admitted that “a decrease or pause on returns or removals of removable or inadmissible aliens” would “result in concrete injuries to Texas.” Ex. 2 § II, II(3). Texas faces particular harm because the rushed implementation of the January 20 Memorandum deprived Texas of the option of adjusting its policies in light of the federal shift. As DHS itself has acknowledged, “[t]he harm to Texas is particularly acute where its budget has been set months or years in advance and it has no time to adjust its budget to respond to DHS policy changes.” Ex. 2 § II. B. Texas Is Forced to Spend Money on Various Services for Illegal Aliens. “Texas has presented evidence it would suffer injuries for various reasons if an injunction is not entered.” ECF 16 at 12. Texas spends hundreds of millions of dollars per year providing services to illegal aliens, including social services, education, healthcare, and other services broadly available in Texas. By increasing the number of illegal aliens present in Texas, the January 20 Memorandum will necessarily increase these costs. Likewise, the categorical refusal to remove aliens ordered removable will encourage additional illegal immigration into Texas, which will further exacerbate these costs. The United States Supreme Court has already concluded that the predictable acts of illegal aliens in response to governmental enforcement efforts can injure a State. Dept. of Commerce v. New York, 139 S. Ct. 2551, 2565–66 (2019). Just so here. And these increased financial expenditures will irreparably harm the State because it cannot recover those
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costs from the federal government. See Texas v. United States, 328 F. Supp. 3d 662, 737 (S.D. Tex. 2018) (explaining that the State’s financial injury was irreparable because “there is no source of recompense”).
In one year alone, Texas housed 8,951 undocumented criminal aliens for a total of 2,439,110 days. Ex. 10 ¶ 6. Texas’s estimated cost to do so was $152,054,117, of which only $14,657,739 was reimbursed by the federal government. Id. ¶¶ 6 & 7. Those amounts will increase should DHS halt nearly all of the removals from Texas.
Additionally, the State funds three healthcare programs that cover illegal aliens. First, federal law requires Texas to include illegal aliens in its Emergency Medicaid program. See 42 C.F.R. § 440.225(c). That costs the State tens of millions of dollars annually. See Ex. 13 ¶ 9 (estimating costs between $62 million and $90 million for various years). Second, the Family Violence Program spends more than a million dollars per year providing services to illegal aliens. Id. ¶ 10 (estimating costs between $1 million and $1.4 million for various years). Third, Texas’s Children’s Health Insurance Program spends tens of millions of dollars each year on perinatal coverage for illegal aliens. Id. ¶ 11 (estimating costs between $30 million and $38 million for various years).
In addition to the cost of these social services, Texas faces the costs of uncompensated care provided by state public hospital districts to illegal aliens. Between 2006 and 2008, these costs ranged from $597 million to $717 million. Id. ¶ 11. In light of the increasing cost of medical care, these numbers are likely higher now.
The Chief Data and Analytics Officer at Texas’s Health and Human Services Commission “believe[s] that the total costs to the State of providing such services and benefits to undocumented
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immigrants will continue to reflect trends to the extent that the number of undocumented immigrants residing in Texas increases or decreases each year.” Id. ¶ 13.
The State also provides public education to illegal aliens, as the Supreme Court required in Plyler v. Doe, 457 U.S. 202, 230 (1982). The cost of educating unaccompanied alien children, which is only a subset of illegal aliens eligible for public education, is tens of millions of dollars per year. See Ex. 12 ¶ 4 (estimating costs between $31 million and $63 million for various years).
The Chief School Finance Officer at the Texas Education Agency “anticipate[s] that the total costs to the State of providing public education to [unaccompanied alien children] will rise in the future to the extent that the number of [unaccompanied alien children] enrolled in the State’s public school system increases.” Ex. 12 ¶ 8.
C. This Court has previously found this evidence sufficient to show irreparable injury. In granting Texas’s application for a temporary restraining order, this Court ruled “the foregoing establishes a substantial risk of imminent and irreparable harm to Texas.” ECF 16 at 12. It was not the first time a court in this district found such evidence support Texas’s injuries in the immigration context. In Texas, 328 F. Supp. 3d 662, the court considered similar declarations in the context of Texas’s challenge to DACA. The court held that the evidence not only established standing but also “would otherwise be sufficient proof of irreparable damage” for purposes of a preliminary injunction. Id. at 740. The Court refused to find irreparable injury only because the State had “delay[ed] in pursuing the claims” challenging DACA. Id. In this case, Texas has the same evidence of irreparable injury and has not delayed at all. The State filed suit—and sought emergency relief—two days after DHS issued the challenged Memorandum. The harm the State faces is therefore irreparable.
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VII. An injunction would not harm defendants or the public. As this Court has already recognized, “the threat of injury to Texas outweighs any potential
harm to Defendants.” ECF 16 at 14. In fact, Defendants face no harm from a preliminary injunction. They have no legitimate interest in the implementation of an unlawful memorandum. See N.Y. Progress & Prot. PAC v. Walsh, 733 F.3d 483, 488 (2d Cir. 2013) (recognizing that government officials “do[] not have an interest in the enforcement of an unconstitutional law”). But even if Defendants had a legitimate interest in the January 20 Memorandum, they face no substantial prejudice from a delayed implementation. DHS has already recognized that any costs from delaying new policies is outweighed by the benefits of consultation and more reasoned decision making. See Ex. 2 § II.
Further, the public interest strongly favors Plaintiff. In this case, “the public interest is served and protected by the issuance of” relief. ECF 16 at 14. “There is always a public interest in prompt execution of removal orders.” Nken v. Holder, 556 U.S. 418, 436 (2009). Defendants cannot claim that the public interest now favors refusing to enforce so many final orders of removal, “the consequence [of which] is to permit and prolong a continuing violation of United States law.” Reno v. Am.-Arab Anti-Discrimination Comm., 525 U.S. 471, 490 (1999). VIII. The Court should postpone the January 20 Memorandum’s Effective Date.
In the event this Court is not prepared to set aside the January 20 Memorandum and permanently enjoin its implementation or enforcement, the APA empowers a “reviewing court” to “issue all necessary and appropriate process to postpone the effective date of an agency action or to preserve status or rights pending conclusion of the review proceedings.” 5 U.S.C. § 705. A stay of the effective date should issue “to the extent necessary to prevent irreparable injury” and “[o]n such conditions as may be required.” Id.; see also Texas v. EPA, 829 F.3d 405, 435 (5th Cir. 2016) (staying an EPA action pending review).
26

Case 6:21-cv-00003 Document 62 Filed on 02/05/21 in TXSD Page 33 of 35 When considering “whether to stay an agency action pending judicial review,” district
courts apply the same test used for preliminary injunctions. Texas v. United States, 95 F. Supp. 3d 965, 973 (N.D. Tex. 2015); see also IHG Healthcare, Inc. v. Sebelius, 4:09-cv-3233, 2010 WL 11680368, at *1 (S.D. Tex. Apr. 1, 2010); Safety Nat’l Cas. Corp. v. U.S. Dep’t of Homeland Sec., 4:05-cv-2159, 2005 WL 8168878, at *2 (S.D. Tex. Dec. 9, 2005). Thus, for the reasons explained above, Texas has made the showing necessary for a stay.
CONCLUSION The State of Texas respectfully requests that the Court preliminarily enjoin Defendants from implementing the January 20 Memorandum and hold the Memorandum unlawful and set it aside.
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Respectfully submitted this the 5th day of February, 2021,
KEN PAXTON Attorney General of Texas
BRENT WEBSTER First Assistant Attorney General
PATRICK K. SWEETEN Associate Deputy Attorney General for Special Litigation
/s/ Todd Lawrence Disher TODD LAWRENCE DISHER Deputy Chief, Special Litigation Unit Attorney-in-Charge Texas Bar No. 24081854 Southern District of Texas Bar No. 2985472
WILLIAM T. THOMPSON Special Counsel Special Litigation Unit Texas Bar No. 24088531 Southern District of Texas Bar No. 3053077
RYAN D. WALTERS Special Counsel Special Litigation Unit Texas Bar No. 24105085 Southern District of Texas Bar No. 3369185
Special Litigation Unit P.O. Box 12548 Austin, Texas 78711-2548 Phone: (512) 936-2567 Fax: (512) 936-0545 Patrick.Sweeten@oag.texas.gov Todd.Disher@oag.texas.gov Will.Thompson@oag.texas.gov Ryan.Walters@oag.texas.gov
Counsel for the State of Texas
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CERTIFICATE OF WORD COUNT I hereby certify that the total number of words in Plaintiff’s Motion for Preliminary Injunction, exclusive of those sections designated for omission, is 8,532 words, as registered by Microsoft Word. I further certify that the Motion for Preliminary Injunction, exclusive of those sections designated for omission for word limit purposes, is 27 pages and does not exceed 40 pages pursuant to the Scheduling Order dated January 30, 2021. ECF 44.
/s/ Todd Lawrence Disher TODD LAWRENCE DISHER CERTIFICATE OF SERVICE I certify that on February 5, 2021, a true and accurate copy of the foregoing document was filed electronically (via CM/ECF) and served on all counsel of record. /s/ Todd Lawrence Disher TODD LAWRENCE DISHER CERTIFICATE OF CONFERENCE I certify that, on February 4–5, 2021, I conferred with Defendants’ counsel, who represented that Defendants oppose this motion. /s/ Todd Lawrence Disher TODD LAWRENCE DISHER
29

 
 Case 6:21-cv-00003 Document 65 Filed on 02/06/21 in TXSD
UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF TEXAS
VICTORIA DIVISION

Page 1 of 10
United States District Court Southern District of Texas
ENTERED
February 06, 2021
Nathan Ochsner, Clerk

STATE OF TEXAS,

§

§

Plaintiff,

§

§

v.

§

§

The UNITED STATES OF AMERICA; §

DAVID PEKOSKE, Acting Secretary of §

The United States Department of Homeland §

Security, in his official capacity;

§

UNITED STATES DEPARTMENT OF §

HOMELAND SECURITY; TROY

§

MILLER, Senior Official Performing the §

Duties of the Commissioner of U.S. Customs §

and Border Protection, in his official

§

capacity; U.S. CUSTOMS AND BORDER §

PROTECTION; TAE JOHNSON, Acting §

Director of U.S. Immigration and

§

Customs Enforcement, in his official

§

capacity; U.S. 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; and U.S. CITIZENSHIP

§

AND IMMIGRATION SERVICES,

§

§

Defendants.

§

Civil Action No. 6:21-cv-00003

ORDER FIEL Houston and the Refugee and Immigrant Center for Education and Legal Services (the “Proposed Intervenors”) have filed an Emergency Motion to Intervene as defendants in this case under Rule 24 of the Federal Rules of Civil Procedure. (Dkt. No. 28). The Proposed Intervenors contend they have a right to intervene pursuant to Rule 24(a) or, in the alternative, they request that the Court permit them to intervene pursuant to Rule 24(b). (Id.). The State of Texas opposes the Emergency Motion. (Dkt. No. 57). Having considered the Emergency Motion,

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Texas’s Response, the record, and the applicable law, the Court GRANTS the Proposed Intervenors’ Emergency Motion pursuant to Rule 24(b) of the Federal Rules of Civil Procedure.1 I. BACKGROUND
The State of Texas requested a Temporary Restraining Order (“TRO”) to enjoin the Defendants from executing an immediate 100-day pause on the removal of “any noncitizen with a final order of removal.” (Dkt. No. 2). The 100-day pause was implemented through a Department of Homeland Security Memorandum dated January 20, 2021 (the “January 20 Memorandum”). (Dkt. No. 2-2). On January 26, 2021, the Court granted Texas’s request and issued a TRO temporarily enjoining the 100-day pause. (Dkt. No. 16). Two days later, the Proposed Intervenors filed their Emergency Motion. (Dkt. No. 28). The Proposed Intervenors subsequently participated in a status conference with the Court on January 29, 2021. (See Dkt. No. 52). The Court entered a Scheduling Order that, among other things, provided the Parties an opportunity to respond to the Proposed Intervenors’ Emergency Motion by February 3, 2021. (Dkt. No. 44). Texas filed its Response in opposition to the Emergency Motion on that date. (Dkt. No. 57). The Defendants did not file a response to the Proposed Intervenors’ Emergency Motion. With briefing now complete, the Court turns to the merits of the Emergency Motion. II. RULE 24(B) LEGAL STANDARD
Rule 24(b) of the Federal Rules of Civil Procedure allows a district court to permit a party to intervene. FED. R. CIV. P. 24(b).2 The Fifth Circuit has explained that permissive intervention
1 Because the Court has granted permissive intervention, the Court foregoes discussion on whether the Proposed Intervenors have a right to intervene as provided in Rule 24(a) of the Federal Rules of Civil Procedure.
2 In relevant part, the rule provides: “On timely motion, the court may permit anyone to intervene who . . . has a claim or defense that shares with the main action a common question of law or fact.” FED. R. CIV. P. 24(b)(1)(B). Rule 24(b) further requires a district court, when exercising its discretion, to “consider whether the intervention will unduly delay or prejudice the adjudication of the original parties’ rights.” FED. R. CIV. P. 24(b)(3).
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under Rule 24(b) is appropriate when “(1) timely application is made by the intervenor, (2) the intervenor’s claim or defense and the main action have a question of law or fact in common, and (3) intervention will not unduly delay or prejudice the adjudication of the rights of the original parties.” League of United Latin Am. Citizens, Council No. 4434 v. Clements, 884 F.2d 185, 189 n.2 (5th Cir. 1989). The Fifth Circuit has additionally instructed courts to consider whether the proposed intervenor is (4) adequately represented by the existing parties and (5) whether the intervenor’s presence is likely to provide significant contributions to the development of the underlying factual issues. Id. at 189. Overall, “[p]ermissive intervention is wholly discretionary with the district court,” and even if the court finds that there is a common question of law or fact or that the Rule 24(b) requirements are otherwise satisfied, the court may ultimately deny permission to intervene.3 New Orleans Pub. Serv., Inc. v. United Gas Pipe Line Co., 732 F.2d 452, 470–71 (5th Cir. 1984) (quotations omitted). To guide a court’s discretion, the Fifth Circuit has noted that intervention should be permitted “where no one would be hurt and greater justice could be attained.” Sierra Club v. Espy, 18 F.3d 1202, 1205 (5th Cir. 1994).
In general, Rule 24 represents “an accommodation between two potentially conflicting goals: to achieve judicial economies of scale by resolving related issues in a single lawsuit, and to prevent the single lawsuit from becoming fruitlessly complex or unending.” United States v. Tex. E. Transmission Corp., 923 F.2d 410, 412 (5th Cir. 1991) (quoting Smuck v. Hobson, 408 F.2d 175, 179 (D.C. Cir. 1969) (en banc)). Parties may nevertheless seek intervention “in a wide variety of situations involving unique facts and procedural postures.” Id. The Fifth Circuit therefore
3 Although a district court has wide discretion to decide whether to grant intervention, the Fifth Circuit has held that the decision to permit intervention under Rule 24(b) requires a “threshold determination” of whether the proposed intervenor’s claims or defenses have a common question of law and fact with the main action, the second factor the Fifth Circuit described in Clements. Howse v. S/V Canada Goose I, 641 F.2d 317, 322–23 (5th Cir. 1981). Such a determination is a question of law. Stallworth v. Monsanto Co., 558 F.2d 257, 269 (5th Cir. 1977). It is not discretionary. Id.
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cautions that “the facts and procedural posture of each case are important, and it is often true that ‘general rules and past decisions cannot provide uniformly dependable guides.’” Id. (quoting Smuck, 408 F.2d at 179). III. ANALYSIS
After considering the permissive intervention factors the Fifth Circuit enumerated in Clements and Sierra Club, as well as the arguments both the Proposed Intervenors and Texas pose in support of their respective positions, the Court finds it is appropriate to grant the Proposed Intervenors’ request.
A. THE APPLICATION IS TIMELY First, the Court is persuaded that the Proposed Intervenors’ Emergency Motion is timely. “[T]he question whether an application for intervention is timely is largely committed to the discretion of the district court . . . .” Stallworth v. Monsanto Co., 558 F.2d 257, 263 (5th Cir. 1977). Timeliness, however, is evaluated “more leniently” under intervention as of right than under permissive intervention. Rotstain v. Mendez, No. 19-11131, 2021 WL 359989, at *8 (5th Cir. Feb. 3, 2021). Regardless, the Fifth Circuit notes that “[t]he requirement of timeliness is not a tool of retribution to punish the tardy would-be intervener, but rather a guard against prejudicing the original parties by the failure to apply sooner.” John Doe No. 1 v. Glickman, 256 F.3d 371, 375 (5th Cir. 2001) (quotation omitted). Timeliness is contextual and must be determined based on all the circumstances. Id. Here, the Proposed Intervenors moved to intervene six days after Texas filed the Complaint against the Defendants and eight days after the January 20 Memorandum was issued. (Dkt. Nos. 1, 28). Neither Texas nor the Defendants had submitted any briefing related to a preliminary injunction when the Proposed Intervenors filed their Emergency Motion. In its Response, Texas does not argue that the Intervenors’ application is untimely, and the Court does not see why or
4

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how such an application would be considered “late” or untimely. Thus, the Court finds that the Emergency Motion is timely for the purposes of permissive intervention.
B. THE PROPOSED INTERVENORS HAVE ARTICULATED A COMMON QUESTION OF LAW AND FACT
Second, the Court finds the Proposed Intervenors have asserted defenses that share a common question of law and fact with the main action. “[T]he ‘claim or defense’ portion of [the] Rule . . . has been construed liberally.” Newby v. Enron Corp., 443 F.3d 416, 422 (5th Cir. 2006); see also In re Estelle, 516 F.2d 480, 485 (5th Cir. 1975) (“[T]he Supreme Court has said that it ‘plainly dispenses with any requirement that the intervenor shall have a direct personal or pecuniary interest in the subject of the litigation.’”) (citing S.E.C. v. U.S. Realty & Imp. Co., 310 U.S. 434, 459, 60 S.Ct. 1044, 1055, 84 L.Ed.1293 (1940)). Notwithstanding, there is no common question of law or fact if the claims in the suit are “not related to” the proposed intervenor’s arguments. See Trans Chem. Ltd. v. China Nat. Mach. Imp. & Exp. Corp., 332 F.3d 815, 824–25 (5th Cir. 2003).
That is not the case here, as Texas’s claims are clearly related to the Proposed Intervenors’ arguments. Both the Proposed Intervenors and the Defendants challenge the enforceability of an agreement between DHS and the State of Texas relating to certain immigration matters (the “Agreement”), and both challenge Texas’s standing to bring the instant action, and both argue that DHS has broad discretion to institute the 100-day pause on removals. See Symetra Life Ins. Co. v. Rapid Settlements Ltd., No. CIV.A. H-05-3167, 2006 WL 2382250, at *4 (S.D. Tex. Aug. 16, 2006) (finding commonality of claims between the proposed intervenors and the plaintiffs when both “claim that [defendant] is improperly circumventing the court-approval requirements of state transfer statutes.”). Moreover, the Proposed Intervenors’ defenses, the Defendants’ defenses, and Texas’s claims arise from the same set of facts and considerations: the January 20 Memorandum,
5

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the Agreement, and DHS’s longstanding practices with respect to the enforcement of immigration law, just to name a few. Courts in the Fifth Circuit regularly permit intervention under similar circumstances. See, e.g., Franciscan All., Inc. v. Azar, 414 F. Supp. 3d 928, 940 (N.D. Tex. 2019) (permitting intervention where proposed intervenors have a “defense that shares with the main action a common question of law or fact” because the “defense is directly related to the underlying controversy”); EEOC v. Commercial Coating Serv., Inc., 220 F.R.D. 300, 302–03 (S.D. Tex. 2004) (permitting intervention where the proposed intervenor’s claims “arise largely from the same set of facts” as those of the parties). Accordingly, the Court finds that the Proposed Intervenors have articulated defenses that have common questions of law and fact with the main action.
C. NO UNDUE DELAY OR PREJUDICE Third, the Court finds that intervention would not unduly delay or prejudice the Parties. Given that the matter is in its infancy, the Proposed Intervenors’ request will not impose timing issues, difficulties, or constraints with regards to the briefing schedule for the preliminary injunction. See Symetra, 2006 WL 2382250, at *6 (“This case is at an early stage and intervention will neither delay the proceedings nor prejudice the existing parties.”). Indeed, the Proposed Intervenors represented in their Emergency Motion that they would fully comply with the published briefing schedule, a representation that their counsel affirmed in the January 29, 2021 hearing.4 (Dkt. No. 28 at 19; Dkt. No. 52 at 71–72). Texas nevertheless raises concerns about the burden the intervention may pose in light of the Proposed Intervenors’ potential discovery requests and arguments. Given the limitations on discovery agreed to by the Parties for the preliminary injunction phase, the Court finds Texas’s
4 At the January 29, 2021 hearing before the Court, counsel for the Proposed Intervenors indicated that “we’re prepared to file on any schedule and as quickly as possible including even before the Court resolves the intervention question.” (Dkt. No. 52 at 71).
6

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discovery concerns unwarranted. The Court will benefit from the perspective and arguments the Proposed Intervenors bring to the Court. In short, obtaining a full record and briefing within this expedited framework is in the interest of justice. See Sierra Club, 18 F.3d at 1205 (intervention should be allowed “where no one would be hurt and greater justice could be attained”). Thus, the Court finds that this factor favors granting permissive intervention.
D. THE PROPOSED INTERVENORS HAVE INTERESTS THE DEFENDANTS MAY NOT ADEQUATELY REPRESENT
Next, the Court must consider whether the interests of the Proposed Intervenors are adequately represented by the Defendants. See Clements, 884 F.2d at 189. The Fifth Circuit has outlined “two presumptions of adequate representation.” Texas, 805 F.3d at 661 (internal quotation omitted). The first is when a proposed intervenor “has the same ultimate objective as a party to the lawsuit.” Id. (internal quotation omitted). The second is when the other party to the lawsuit “is a governmental body or officer charged by law with representing the interests of the [intervenor].” Id. (alteration in original) (internal quotation omitted). A proposed intervenor may overcome both presumptions by showing, inter alia, an “adversity of interest” with the governmental entity. Id. at 661–62. That is, a proposed intervenor “must demonstrate that its interests diverge from the putative representative’s interests in a manner germane to the case.” Id. at 662. In so doing, the proposed intervenor must put forth “something more than speculation as to the purported inadequacy”; however, as a general matter it remains “a relatively minimal showing.” Clements, 884 F.2d at 189 (internal quotation omitted).
In this instance, both presumptions apply. The Proposed Intervenors have the same ultimate goal as the Defendants—to allow implementation of the 100-day pause—and the Defendants are a governmental entity charged by law with representing, to some measure, the interests of the Proposed Intervenors. The Proposed Intervenors seek to overcome this by demonstrating that,
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whereas the federal government the Defendants’ primary argumentative tack will focus on its expansive executive authority, the Proposed Intervenors’ arguments will focus on the effect of the 100-day pause on the individuals subject to a final order of removal. (Dkt. No. 28 at 18–19). Texas argues that the Proposed Intervenors’ supposed adverse interest fails because the Defendants, in addition to asserting arguments based on executive authority, have expressed concern over certain “humanitarian” issues inherent in their enforcement of immigration laws. (Dkt. No. 57 at 5; see Doc. 8 at 20).
The Court finds that the Proposed Intervenors’ interests are sufficiently adverse from the Defendants in this case. The Defendants’ concern over the humanitarian impact of an injunction against the January 20 Memorandum is chiefly institutional and political. The practical limits to such a concern are clearly demonstrated by the arguments Texas makes in its Motion for a Preliminary Injunction. There, Texas explains the impact a 100-day pause would have because of the increase in the number of individuals that may ultimately be released who have committed a crime and are subject to a final order of removal. (Dkt. No. 62 at 10–11). The Defendants, as entities charged by law with protecting Texas citizens, will by necessity balance their advocacy for individuals subject to a final order of removal on humanitarian grounds with its lawful duty to protect American citizens. By contrast, the Proposed Intervenors are unimpeded by any duty to protect American citizens, and thus are concerned exclusively with the welfare of individuals directly affected by the January 20 Memorandum. The Proposed Intervenors have therefore met their minimal burden to show their interests are sufficiently adverse to the Defendants’ in a way that is germane to the case—despite the fact that they share the common goal of opposing Texas’s lawsuit.
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The Court’s finding on this issue is in no way novel: the Fifth Circuit has historically acknowledged the significance of a distinction between institutional and individual representation in the context of Rule 24 intervention. See Texas, 805 F.3d at 663 (listing cases). Given the Proposed Intervenors’ representation of individuals subject to final orders of removal, the Court finds that the Defendants’ institutional representation is inadequate.
E. THE PROPOSED INTERVENORS WILL CONTRIBUTE TO THE COURT’S DISCERNMENT OF THE UNDERLYING ISSUES
Finally, the Court concludes the Proposed Intervenors will significantly contribute to the Court’s discernment of the underlying issues. For one, as alluded to above, the Proposed Intervenors bring a wealth of experience in observing the direct impact of immigration regulations on individuals as opposed to political entities. The Proposed Intervenors’ members and clients are the individuals subject to final orders of removal. The Court therefore welcomes the Proposed Intervenors’ expertise in the removal process and, as they state, “the practical and legal realities of the immigration system.” (Dkt. No. 28 at 20). Indeed, during the January 29, 2021 status conference, the Proposed Intervenors provided comprehensive and detailed answers to the Court’s questions regarding immigration procedures in the context of removals. (See Dkt. No. 52 at 59– 67). The Court therefore finds that the Proposed Intervenors would provide an important perspective and substantial expertise and experience that will aid the Court in its consideration of Texas’s request for a preliminary injunction. IV. CONCLUSION
For the foregoing reasons, the Court GRANTS the Proposed Intervenors’ Emergency Motion. Accordingly, the Proposed Intervenors are ORDERED to adhere to the briefing schedule and discovery limitations outlined in the Court’s Scheduling Order, (Dkt. No. 44), and to file their briefs and responses on the same dates the Defendants are required to do so.
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It is SO ORDERED. SIGNED this February 6, 2021.

_____________________________________
DREW B. TIPTON UNITED STATES DISTRICT JUDGE

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 Case 6:21-cv-00003 Document 67 Filed on 02/08/21 in TXSD
UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF TEXAS
VICTORIA DIVISION

Page 1 of 6
United States District Court Southern District of Texas
ENTERED
February 09, 2021
Nathan Ochsner, Clerk

STATE OF TEXAS,

§

§

Plaintiff,

§

§

v.

§

§

The UNITED STATES OF AMERICA; §

DAVID PEKOSKE, Acting Secretary of §

The United States Department of Homeland §

Security, in his official capacity;

§

UNITED STATES DEPARTMENT OF §

HOMELAND SECURITY; TROY

§

MILLER, Senior Official Performing the §

Duties of the Commissioner of U.S. Customs §

and Border Protection, in his official

§

capacity; U.S. CUSTOMS AND BORDER §

PROTECTION; TAE JOHNSON, Acting §

Director of U.S. Immigration and

§

Customs Enforcement, in his official

§

capacity; U.S. 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; and U.S. CITIZENSHIP

§

AND IMMIGRATION SERVICES,

§

§

Defendants.

§

Civil Action No. 6:21-cv-00003

ORDER EXTENDING TEMPORARY RESTRAINING ORDER Pending before the Court is the State of Texas’s request for a 14-day extension of the Temporary Restraining Order entered by the Court on January 26, 2021 (the “TRO”). (Dkt. No. 31 at 4; Dkt. No. 52 at 49–54). The Defendants oppose this request. (Dkt. No. 30 at 1–3). Having considered the pleadings on this issue, the record, the arguments of counsel at the January 29, 2021 hearing, and the applicable law, the Court GRANTS Texas’s request for an extension of the TRO.

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I. BACKGROUND The State of Texas requested a TRO to enjoin the Defendants from executing an immediate
100-day pause on the removal of “any noncitizen with a final order of removal.” (Dkt. No. 2 at 4). The 100-day pause was implemented through a Department of Homeland Security Memorandum dated January 20, 2021 (the “January 20 Memorandum”). (Dkt. No. 2-2). On January 26, 2021, the Court granted this request and ordered, in relevant part:
1. Defendants and all their respective officers, agents, servants, employees, attorneys, and other persons who are in active concert or participation with them are hereby ENJOINED and RESTRAINED from enforcing and implementing the policies described in the January 20 Memorandum in Section C entitled “Immediate 100-Day Pause on Removals.”
2. This TRO is granted on a nationwide basis and prohibits enforcement and implementation of the policies described in the January 20 Memorandum in Section C entitled “Immediate100-Day Pause on Removals” in every place Defendants have jurisdiction to enforce and implement the January 20 Memorandum.
(Dkt. No. 16 at 17). Pursuant to Rule 65 of the Federal Rules of Civil Procedure, the Court ordered the TRO to
be in effect for 14 days, meaning it would lapse on February 9, 2021. (Id. at 2). Texas now requests that the Court extend the TRO for an additional 14 days pursuant to Rule 65(b)(2) of the Federal Rules of Civil Procedure. (Dkt. No. 31 at 4; Dkt. No. 52 at 49–54). The Defendants oppose this request and assert that the TRO should expire on February 9, 2021. (Dkt. No. 30 at 1– 3). At a January 29, 2021 hearing on the briefing schedule for the preliminary injunction phase, the Court considered the Parties’ arguments and stated there was a “real problem with being able to develop the record within 14 days.” (Dkt. No. 52 at 67–68). A day after the hearing, the Court entered a Scheduling Order that contemplated a briefing and discovery schedule extending beyond February 9, 2021, the 14th day of the TRO. (Dkt. No. 44). In light of this procedural history and
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the following analysis, the Court finds there is good cause to extend the TRO for 14 days until February 23, 2021. II. ANALYSIS
Rule 65 of the Federal Rules of Civil Procedure authorizes a court to extend a temporary restraining order once for a period of 14 days if the Court finds that “good cause” justifies such an extension. FED. R. CIV. P. 65(b)(2).1 Federal courts in the Fifth Circuit have concluded “good cause” exists to justify an extension for many reasons, such as to allow sufficient time for discovery, for scheduling considerations, to accommodate the court’s need for additional time to fully consider a preliminary injunction motion, and where an enjoined party suffered no harm. See Xtria, LLC v. Int'l Ins. All., Inc., No. 309-CV-2228, 2009 WL 4756365, at *5 (N.D. Tex. Dec. 11, 2009) (finding issues pertaining to discovery “constitute good cause for extension of the TRO.”); WaterFleet LLC v. TanMar Rentals, LLC, No. SA-19-CV-01190, 2019 WL 9197838, at *2 n.1 (W.D. Tex. Oct. 24, 2019) (“To the extent a preliminary injunction hearing cannot practicably be set before the expiration of this temporary restraining order, the pending preliminary injunction hearing may be considered in evaluating good cause to extend this temporary restraining order.”); Sec. & Exch. Comm’n v. AriseBank, No. 3:18-CV-186, 2018 WL 10419828, at *1 (N.D. Tex. Mar. 9, 2018) (“Courts have found good cause to extend TROs, for example, where the court needed time to fully consider the various arguments and motions of the parties[,] where the moving party needed additional time to prepare and present its preliminary injunction, . . . and where the moving
1 Rule 65(b)(2) provides in pertinent part: The [TRO] expires at the time after entry–not to exceed 14 days–that the court sets, unless before that time the court, for good cause, extends it for a like period or the adverse party consents to a longer extension. The reasons for an extension must be entered in the record.
FED. R. CIV. P. 65(b)(2).
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party was continuing to attempt to serve the defendants and obtain more information about the case.” (alteration and ellipsis added) (quotation and citations omitted)) (collecting cases); Elepreneurs Holdings, LLC v. Benson, No. 4:21-CV-00026, 2021 WL 134098, at *2 (E.D. Tex. Jan. 14, 2021) (granting plaintiffs’ motion for extension because such “an extension . . . is warranted because Defendants do not appear to have been harmed by the grant of the present temporary restraining order.”).
The Court finds good cause exists to extend the TRO for 14 days for four independent reasons. First, as stated at the January 29, 2021 hearing, the Court finds that extending the TRO is proper because the additional time is necessary for the record to be more fully developed. (Dkt. No. 52 at 67–68). The Court, in its January 30, 2021 Scheduling Order, ordered the Defendants to produce data pertaining to individuals subject to a final order of removal. (Dkt. No. 44 at 2). The Defendants’ counsel asserted that providing this information is a significant undertaking, (Dkt. No. 52 at 69–70), and in the interest of providing the Defendants with sufficient time, the Court ordered that it be produced by February 10, 2021, one day after the TRO is set to expire. (Dkt. No. 44 at 2). This information will provide for a more fulsome record that will assist the Court in adjudicating Texas’s Motion for a Preliminary Injunction. Additionally, the discovery cutoff is also February 10, 2021, a day after the original TRO expires. (Id.). This deadline was agreed to by the parties and includes a stipulation that either party may attach evidence in supplemental briefing with respect to the preliminary injunction. (Id.).
Second, the deadline for the Defendants’ to respond to Texas’s Motion for Preliminary Injunction and Texas’s deadline to file a reply both fall outside the original 14-day period. (Id. at 3). Accordingly, the Court finds that it is necessary to extend the TRO so that all parties will have an opportunity to fully brief these matters.
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Third, the Court also needs time to assess the arguments and prepare a ruling on the Motion for Preliminary Injunction. This would necessarily fall outside the original 14-day period.
Fourth, for the reasons identified in the Court’s initial TRO, (Dkt. No. 16), the irreparable harm that would accrue to Texas if an extension of the TRO is not granted before consideration of its Motion for a Preliminary Injunction is more substantial than any harm incurred by the Defendants. During the January 29, 2021 hearing, the Defendants argued that an extension of the TRO would multiply an “inherent constitutional injury” to the Executive’s “broad discretion” in the subject matter here. (Dkt. No. 52 at 51). The Defendants also argued that the 100-day pause on removals is necessary to allow the current administration to take account important immigration, foreign policy, and humanitarian considerations. (Id.). These arguments are nearly identical to those the Fifth Circuit rejected in Texas v. United States when affirming a preliminary injunction. 809 F.3d 134, 186 (5th Cir. 2015). There, the panel concluded that the “harms the United States has identified are less substantial,” in part because “the principles the government cites are more likely to be affected by the resolution of the case on the merits than by the injunction.” Id. The Court finds the same is true here regarding the extension of the TRO. The Court may ultimately be persuaded by the Defendants’ arguments, but any harm they might incur between now and then does not outweigh the potential for irreparable harm to Texas. III. CONCLUSION
For the foregoing reasons, the Court GRANTS Texas’s request for an extension. The TRO is extended for 14 days until February 23, 2021.
It is SO ORDERED.
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SIGNED this February 8, 2021.

_____________________________________ DREW B. TIPTON
UNITED STATES DISTRICT JUDGE

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