IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF TEXAS

AMARILLO DIVISION

)

STATE OF TEXAS, )

)

Plaintiff, )

)

v. ) Civil Action No. 2:22-cv-00094-Z

)

ALEJANDRO MAYORKAS, )

in his official capacity as )

Secretary of Homeland Security, et al., )

)

Defendants. )

)

DEFENDANTS’ OPPOSED MOTION TO RECONSIDER RULING

ON DEFENDANTS’ MOTION TO TRANSFER

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INTRODUCTION 

On July 8, 2022, the Court denied Defendants’ Motion to Transfer this case to the District 

of Columbia. Opinion and Order, ECF No. 68 (July 8, 2022) (the “Order”). The Court’s ruling 

depends on a statutory interpretation that was discussed in dicta by the Fifth Circuit in Texas v. 

Biden, 20 F.4th 928 (5th Cir. 2021), but that was subsequently foreclosed by the Supreme Court’s 

decision in that case, see Order at 6 (citing Texas at 20 F.4th at 977, reversed and remanded by 

Biden v. Texas, 142 S. Ct. 2528 (2022)). Because this Court’s ruling is inconsistent with the 

Supreme Court’s recent ruling in Texas, Defendants respectfully request that the Court reconsider 

that Order and reverse the ruling denying transfer.1

STANDARD OF REVIEW

The Court’s ruling was interlocutory in nature because it did not result in entry of final 

judgment ending this litigation. Where the order at issue is interlocutory, Rule 54(b) governs 

whether the Court should reconsider a prior ruling. See Dos Santos v. Bell Helicopter Textron, Inc. 

Dist., 651 F. Supp. 2d 550, 553 (N.D. Tex. 2009); see also Central States, Se. & Sw. Areas Health 

& Welfare Fund v. Health Special Risk, Inc., No. 3:11-CV-2910-D, 2013 WL 2656159, at *2 n.2 

(N.D. Tex. June 13, 2013) (citing Dos Santos, 651 F. Supp. 2d at 553). Under Rule 54(b), “any 

order or other decision, however designated, that adjudicates fewer than all the claims or the rights 

and liabilities of fewer than all the parties . . . may be revised at any time before the entry of a 

judgment adjudicating all the claims and all the parties’ rights and liabilities.” The precise standard 

under Rule 54(b) is “unclear,” but “considerations similar to those under Rules 59 and 60 inform 

the Court’s analysis.” Dos Santos, 651 F. Supp. 2d at 553. Under Rule 59(e), the Court may alter 

 1 Counsel for Defendants conferred with Plaintiffs’ counsel on August 5, 2022. Plaintiffs oppose 

the motion. 

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its prior ruling “to (1) accommodate an intervening change in controlling law, (2) account for 

newly discovered evidence, or (3) correct a manifest error of law or fact.” Trevino v. City of Fort 

Worth, 944 F.3d 567, 570 (5th Cir. 2019); see also Fed. R. Civ. P. 60 (allowing for “relief from a 

judgment or order” for a range of reasons, including new information or “any other reason that 

justifies relief”). Here, reconsideration is warranted based on the Supreme Court’s interpretation 

of 8 U.S.C. § 1252 following the Fifth Circuit’s decision in Texas.

2

ARGUMENT

Defendants argued in their motion that the Interim Final Rule (IFR) Texas challenges in 

this case implements Section 1225(b)(1)(B)(ii), and that Congress has limited review of 

regulations implementing Section 1225(b)(1) to a single forum, the District of Columbia. 

See generally Transfer Motion, ECF No. 7. Under 8 U.S.C. § 1252(a)(2)(A)(iv), “Review relating 

to section 1225(b)(1)” is strictly limited in this way: “Notwithstanding any other provision of law 

(statutory or nonstatutory) ... no court shall have jurisdiction to review,” among other things, any 

“procedures and policies adopted by the Attorney General to implement the provisions of section 

1225(b)(1) of this title,” “except as provided in subsection [1252](e).” 8 U.S.C. 

§ 1252(a)(2)(A)(iv) (emphasis added). And Section 1252(e)(3) permits review only in the District 

of Columbia. Under 8 U.S.C. § 1252(e)(3), “[j]udicial review of determinations under [8 U.S.C. § 

1225(b)] and its implementation is available in an action instituted in the United States District 

Court for the District of Columbia.” This includes review of whether “any regulation issued to 

 2 The Supreme Court’s decision was issued on June 30, 2022, which Defendants acknowledge was 

before this Court issued its ruling on the transfer motion. However, the parties’ principal briefing 

on the motion had already been completed prior to the Supreme Court’s decision, and other than a 

short notice of supplemental authority filed by Defendants on July 7, 2022 (the day before this 

Court’s transfer ruling was issued), the parties’ briefing was prepared and presented to this Court 

without the benefit of the Supreme Court’s exposition of the proper function of Section 1252 and 

related issues as announced in the Texas case. 

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implement” § 1225(b) “is constitutional,” and “whether such a regulation ... issued by or under 

the Authority of the Attorney General to implement such section, is not consistent with applicable 

provisions of this subchapter or is otherwise in violation of law.” 8 U.S.C. § 1252(e)(3)(A)(i)-(ii). 

In ruling on the transfer motion, the Court correctly held, as Defendants had argued, that 

“[t]he IFR implements Section 1225(b)(1)(B)(ii).” Order at 4; see also id. at 2 (“The IFR relates 

to Section 235 of the Immigration and Nationality Act ...codified at 8 U.S.C. § 1225”). The Court 

also acknowledged that “Section 1252(a)(2)(A) largely precludes matters relating to Section 

1225(b)(1) from judicial review.” Id. at 4. There is thus no disagreement that if Section 1252 

applies to the Plaintiff in this case, the State of Texas, this case must be transferred to the District 

of Columbia or be dismissed. The Court concluded, however, that Section 1252(a)(2)(A) and (e)(3) 

do not apply in this case because “Section 1252 is titled ‘Judicial review of orders of removal,’” 

and that this title “indicates the section applies to individual aliens (who are subject to orders of 

removal) rather than programmatic decisions.” Order at 5 (quoting Texas, 20 F.4th at 977 n.11.); 

see also Order at 6 n.4 (citing Fifth Circuit’s statement in Texas, 20 F.4th at 97, that the “entirety 

of the text and structure of Section 1252 indicates that it operates only on denials of relief for 

individual aliens”). 

The Supreme Court’s decision in Texas forecloses this reading of Section 1252. In Texas

the Supreme Court held that “section 1252(f)(1) ‘generally prohibits lower courts from entering 

injunctions that order federal officials to take or to refrain from taking actions to enforce,

implement, or otherwise carry out the specified statutory provisions.’” 142 S. Ct. at 2538 (quoting 

Garland v. Aleman Gonzalez, 596 U.S. --- (2022)). The Supreme Court also held that this Court’s 

injunction in that case “violated that provision” in a case where plaintiffs were States, including 

the State of Texas. 142 S. Ct. at 2538. Section 1252(f) falls under the same section title as Sections 

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1252(a)(2)(A) and (e)(3). Accordingly, if the title of Section 1252 indicated that “the section 

applies to individual aliens (who are subject to orders of removal) rather than programmatic 

decisions,” as this Court held, see Order at 5, then Section 1252(f) could not apply to a challenge 

by Texas to a programmatic decision. Yet the Supreme Court held that Section 1252 did apply in 

that case, precluding any argument that Section 1252 or its various sub-provisions must be read

based on the title or structure of that section only to apply in individual cases challenging removal 

orders. See 142 S. Ct. at 2538. This Court’s ruling on the transfer motion thus cannot be squared 

with the Supreme Court’s holding.

The Court acknowledged the Supreme Court’s decision in the Order but stated that the 

“Supreme Court did not question the Fifth Circuit’s contention that ‘[t]he entirety of the text and 

structure of Section 1252 indicates that it operates only on denials of relief for individual aliens.’” 

Order at 6 n.4. This is incorrect. The Supreme Court specifically applied a provision of Section 

1252 in a case that did not involve any “denials of relief” or any “individual aliens.” The Fifth 

Circuit’s dicta generally addressing the scope of Section 1252, Texas, see 20 F.4th at 978 n.11, 

cannot be good law after the Supreme Court took a completely contrary approach to the scope of 

that section. See, e.g., United States v. Kirk, 528 F.2d 1057, 1063-64 (5th Cir. 1976) (noting Fifth 

Circuit decisions are no longer good law once the “decision is overruled” which can be done either 

“expressly or implicitly”); Cent. Pines Land Co. v. United States, 274 F.3d 881, 893 (5th Cir. 

2001) (same); see also Whitehouse Hotel Ltd. P’ship v. Comm’r, 615 F.3d 321, 343 (5th Cir. 2010) 

(Garza, J., concurring in part) (parts of majority opinion that “describe and characterize issues that 

we ultimately do not decide, are unnecessary to resolve this case and have no bearing on the 

judgment” are “dicta” that “amounts to an improper advisory opinion”). “Fifth Circuit precedent 

is implicitly overruled if a subsequent Supreme Court opinion ‘establishes a rule of law 

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inconsistent with’ that precedent.” Gahagan v. United States Citizenship & Immigr. Servs., 911 

F.3d 298, 302 (5th Cir. 2018) (citing Gonzalez v. Thaler, 623 F.3d 222, 226 (5th Cir. 2010)). That 

is precisely what has happened here. And, as this Court further acknowledged, “the Fifth Circuit 

did not consider Section 1252(e)(3) in Texas” anyway. Order at 6 n.4.

The Court also noted that some specific provisions of Section 1252(a)(2)(A) “appear to 

apply to individual-removal decisions.” Order at 6. However, as Defendants argued in the Transfer 

Motion, Section 1252(a)(2)(A)(iv) says nothing about individual removal decisions, but rather 

applies broadly to bar, “except as provided in subsection [1252](e),” jurisdiction to review 

“procedures and policies adopted ... to implement the provisions of section 1225(b)(1).” See also 

Transfer Mot. at 10. And, as the Court correctly acknowledged, Section 1252(e)(3), titled 

“Challenges on the validity of the system,” “does not use individual determination-focused 

language.” Order at 7; see also Transfer Motion at 9-10. Thus, as Defendants previously argued, 

the title of Section 1252 cannot override the more specific text of Section 1252(a)(2)(A) and (e)(3). 

See ECF No. 15 at 5-6. A title, almost by definition, abridges “the detailed provisions of the text”—

to restate every detail of the text in the title would be “ungainly as well as useless.” Railroad 

Trainmen v. Baltimore & Ohio R.R., 331 U.S. 519, 528 (1947). It is well-settled that “[w]here the 

text [of a statute] is complicated and prolific, headings and titles can do no more than indicate the 

provisions in a most general manner” and “cannot undo or limit that which the text makes plain.”

Id. at 528-29. “For interpretative purposes, they are of use only when they shed light on some 

ambiguous word or phrase.” Id. Accordingly, “‘[a] title or heading should never be allowed to 

override the plain words of a text.’” Fulton v. City of Philadelphia, 141 S. Ct. 1868, 1879 (2021) 

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(quoting A. Scalia & B. Garner, Reading Law: The Interpretation of Legal Texts 222 (2012)).3 The 

Order thus contravenes clear Supreme Court precedent that a section title cannot be used to narrow 

“text” that “sweeps more broadly.” Fulton, 141 S. Ct. at 1879.

As many courts have acknowledged, the phrase “review under Subsection 1252(e)(3)” is 

“not textually confined to claims arising from individual removal actions.” Make the Road New 

York v. Wolf, 962 F.3d 612, 627 (D.C. Cir. 2020) (explaining that “Congress included within 

Subsection 1252(e)(3) ... claims that, by their terms, are not confined to individual expeditedremoval proceedings,” including “challenges to ‘procedures and policies adopted by the 

[Secretary] to implement [the statute]’ divorced from any individual determination.”); see also 

M.M.V. v. Garland, 1 F.4th 1100, 1108 (D.C. Cir. 2021) (holding § 1252(e)(3) restricts jurisdiction 

outside the District of Columbia for APA challenges to rules implementing the expedited removal 

process because “[t]he bar is keyed to the nature of the challenged agency action, not the basis for 

the challenge”); S.L.V. v. Rosen, No. 21-cv-0017, 2021 WL 243442, at *4-5 (W.D. Tex. Jan. 25, 

2021) (dismissing for lack of jurisdiction and explaining that § 1252(e) “lists what relief is 

unavailable ‘[w]ithout regard to the nature of the action or claim and without regard to the identity 

of the party or parties bringing the action’” and provides “clear and convincing evidence that 

Congress intended to preclude judicial review” by district courts in this circuit); Reyes v. Nielsen, 

No. CV H-18-3971, 2020 WL 1442349, at *3 (S.D. Tex. Feb. 6, 2020), report and 

 3 See also Pa. Dept. of Corr. v. Yeskey, 524 U.S. 206, 212 (1998) (“[T]he title of a statute ... cannot 

limit the plain meaning of the text.”); Fla. Dep’t of Revenue v. Piccadilly Cafeterias, Inc., 554 

U.S. 33, 47 (2008); United States v. Hoang, 636 F.3d 677, 681 (5th Cir. 2011) (“We find reference 

to the subtitle unnecessary and inappropriate because ... we find no ambiguity in [the] 

subsection.”); RadLAX Gateway Hotel, LLC v. Amalgamated Bank, 566 U.S. 639, 645 (2012) (“[I]t 

is a commonplace of statutory construction that the specific governs the general”); United States 

v. Richardson, 948 F.3d 733, 748 (6th Cir.) (“we need not refer to titles, which do not carry the 

force of law, when the statutory text is clear”), cert. denied, 141 S. Ct. 344 (2020).

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recommendation adopted sub nom. Sequeria Reyes v. Nielsen, No. 4:18-CV-3971, 2020 WL 

1444920 (S.D. Tex. Mar. 24, 2020) (limitation on systemic challenges related “to the legality and 

constitutionality of the expedited removal regime” apply “[r]egardless of how Plaintiff 

characterizes [the] claims”).

The Court nevertheless concluded the ruling denying the transfer motion by noting that the 

Court was reading “Section 1252(e)(3) to ‘apply only to persons or things of the same general kind 

or class specifically mentioned (ejusdem generis).’” Order at 9 (quoting Scalia & Garner, supra,,

at 199). But Section 1252(e)(3) cannot be read in isolation from 1252(a)(2)(A). Section 

1252(a)(2)(A) specifically mentions programmatic challenges that are not tied to any individual 

removal proceedings, and the Supreme Court has now held that provisions of Section 1252 apply 

to programmatic claims and claims brought by States. Applying Sections 1252(a)(2)(A) and (e) to 

things of the same general kind or class as addressed in other provisions of Section 1252 thus must

include programmatic challenges raised by Texas.

Indeed, the “ejusdem generis canon” has relevance only “when a drafter has tacked on a 

catchall phrase at the end of an enumeration of specifics . . . .” Scalia & Garner, supra, at 199. It 

accordingly “instructs courts to interpret a general or collective term at the end of a list of specific 

items in light of any common attributes shared by the specific items.” Sw. Airlines Co. v. Saxon, 

142 S. Ct. 1783, 1789 (2022); see United States v. Koutsostamatis, 956 F.3d 301, 308 (5th Cir. 

2020) (“Where it applies, ejusdem generis limits general terms which follow specific ones to 

matters similar to those specified.”). 

Section 1252(a)(2)(A) presents no such list of specific items with a catchall phrase at the 

end. Instead, it provides four classes of claims concerning expedited removal that “no court shall 

have jurisdiction to review.” 8 U.S.C. § 1252(a)(2)(A). Two of those categories refer to 

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“individual” claims, specifically challenges to “individual determination[s]” or the “application of 

[section 1225(b)(1)] to individual aliens.” 8 U.S.C. § 1252(a)(2)(A)(i), (iii). However, two other 

categories refer to general and programmatic challenges not tied to any “individual” action. Id. at 

§ 1252(a)(2)(A)(ii) (“a decision by the [Secretary] to invoke the provisions of such section”), (iv) 

(“procedures and policies adopted by the [Attorney General or Secretary] to implement the 

provisions of section 1225(b)(1) of this title.”). Given Congress’s decision to refer to “individual” 

proceedings only in sections 1252(a)(2)(A)(i) and (iii), the ejusdem generis canon does not apply 

here at all. Instead, the presumption “that Congress acts intentionally and purposely when it 

includes particular language in one section of a statute but omits it in another” governs. City of 

Chicago v. Envtl. Def. Fund, 511 U.S. 328, 338 (1994). Congress included the “individual” 

limitation only on claims covered by sections 1252(a)(2)(A)(i) and (iii), not sections 

1252(a)(2)(A)(ii) and (iv), and so, as the D.C. Circuit has held, claims arising under sections 

1252(a)(2)(A)(ii) and (iv) are not limited to individual noncitizens challenging their expedited 

removal orders. Make the Road, 962 F.3d at 627 (holding that section 1252(a)(2)(A)(ii) and (iv) 

are “two categories of claims that, by their terms, are not confined to individual expedited-removal 

proceedings,” and instead cover “challenges to ‘procedures and policies adopted by the [Secretary] 

to implement [the statute]’ divorced from any individual determination.”).4 Section 1252(e)(3), 

 4 The Court relied on the dissent in Make the Road, suggesting that Judge Rao “interpret[ed] 

Section 1252(e) to apply to limited review only of individual determinations.” Order at 7. But that 

misreads the dissent. Judge Rao would have held that under sections 1252(a)(2)(A) and 1252(e)(3) 

no court had jurisdiction over a claim challenging certain expedited removal procedures,

regardless of the identity of the party. Make the Road, 962 F.3d at 641 (Rao, J., dissenting) (“The 

structure and context of the INA’s jurisdictional provisions also confirm that the Secretary’s 

Expansion Designation is barred from judicial review”). Judge Rao further would have held that 

some expedited removal procedures can be challenged, but only by individual noncitizens subject 

to orders of expedited removal. See id. at 643-46. But under Judge Rao’s reading, no court, not 

even the D.C. Circuit, has jurisdiction over an APA challenge to expedited removal procedures 

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then, in providing for “Judicial review of determinations under section 1225(b) of this title and its 

implementation,” including review of the legality of “regulation[s],” restores what section 

1252(a)(2)(A) strips district courts of, but only in the District of Columbia. 

Finally, even assuming ejusdem generis had any application here, “[n]o canon of 

interpretation is absolute . . . . Each may be overcome by the strength of differing principles that 

point in other directions.” Scalia and Gardner, supra, at 59. Here, two additional principles point 

in the opposite direction. First, even if section 1252’s title and subheadings could be read to limit 

clear statutory text, a reading of the statute that allowed States to avoid the venue limitations, 60-

day limit for bringing suits, and other limitations in Section 1252(e)(3) would undermine 

Congress’s clear intent to streamline and consolidate all review related to Section 1225(b)(1) in 

the District of Columbia. See ECF No. 15 at 10; accord Am. Immigration Lawyers Ass’n v. Reno, 

199 F.3d 1352, 1359 (D.C. Cir. 2000) (“The purpose is obvious”—“[b]y confining judicial review 

to one venue, Congress avoids conflicting decisions about the validity of particular regulations or 

statutes.”). 

Second, construing section 1252 as limited to “individual aliens” challenging their orders 

of removal, Order at 5, 8, would render other provisions of section 1252 nullities, notwithstanding 

those provisions’ plain text covering claims arising outside of challenges to orders of removal by 

individual noncitizens. For example, under this Court’s reading of section 1252, section 

1252(a)(2)(B)—which bars, among other things, judicial review of any claim concerning “any 

judgment regarding the granting of relief under section 1182(h), 1182(i), 1229b, 1229c, or 1255 

 

brought by anyone other than a noncitizen. The majority in Make the Road of course disagreed, 

concluding that section 1252(a)(2)(A) and (e)(3) provided jurisdiction in the District of Columbia 

over programmatic APA challenges to expedited removal procedures brought by parties other than 

individual noncitizens. Make the Road, 962 F.3d at 627. But regardless, under either the majority 

or dissent’s view, this Court lacks any jurisdiction to review expedited removal procedures.

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of this title” and “any other decision or action of the Attorney General or the Secretary of 

Homeland Security the authority for which is specified under this subchapter to be in [their]

discretion”—would not preclude a district court challenge by anyone, noncitizen, organization, or 

governmental entity, challenging such judgments or decisions or actions because they do not 

involve individual noncitizens with final removal orders. But the Supreme Court recently rejected 

that view as to section 1252(a)(2)(B)(i), concluding that provision stripped district courts of 

jurisdiction over all challenges to factual findings made as part of discretionary judgment, even if 

those claims cannot be challenged in any court by any party. Patel v. Garland, 142 S. Ct. 1614, 

1626 (2022). Further, contrary to this Court’s reading of section 1252, multiple courts of appeal 

have rejected the view that section 1252(a)(2)(B)(ii) is limited to challenges brought by individual 

noncitizens in their removal proceedings. Transfer Reply, ECF No. 15 at 6-7 & n. 3 (collecting 

casers from the First, Third, Fifth, Sixth, Seventh, Eighth, Tenth, and D.C. Circuits). Moreover, 

this Court’s reading of section 1252 would render section 1252(g)—which strips district courts of 

jurisdiction “to hear any cause or claim by or on behalf of any alien arising from the decision or 

action by the Attorney General to commence proceedings, adjudicate cases, or execute removal 

orders”—a nullity, permitting any party to challenge an individual noncitizen’s removal because

those individuals are not subject to final orders of removal. Likewise, the Court’s construction of

section 1252 renders section 1252(b)(9)—which states that “no court shall have jurisdiction ... to 

review ... questions of law or fact” “arising from any action taken or proceeding brought to remove 

an alien,” (emphasis added)—a nullity, by permitting anyone to challenge any “action taken” in 

district court because such actions precede any removal proceeding or removal order.

5 Where, as 

 5 The Court’s reading would render numerous other provisions meaningless, as they would not 

apply to parties raising claims covered by section 1252 if they were not individuals subject to final 

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here, reliance on ejusdem generis would undermine clear Congressional intent and nullify specific 

statutory provisions, the canon must give way.

CONCLUSION

For these reasons, and those listed in Defendants’ briefing on the motion to transfer, 

Defendants respectfully request that the Court reconsider its prior ruling and grant the motion to 

transfer this matter to the District of Columbia. 

Dated: August 5, 2022 Respectfully submitted,

BRIAN M. BOYNTON

Principal Deputy Assistant Attorney General

WILLIAM C. PEACHEY 

Director

Office of Immigration Litigation 

District Court Section

/s/ Erez Reuveni

EREZ REUVENI

Assistant Director

U.S. Department of Justice

Civil Division

Office of Immigration Litigation

District Court Section

P.O. Box 868, Ben Franklin Station

Washington, DC 20044

Tel.: (202) 307-4293

Email: erez.r.reuveni@usdoj.gov

BRIAN C. WARD

Senior Litigation Counsel

Counsel for Defendants

 

removal orders. See, e.g., 8 U.S.C. § 1252(b) (requirements for petitions for review), (d) 

(exhaustion requirement).

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CERTIFICATE OF CONFERENCE

I hereby certify that on August 5, 2022, I conferred with counsel for Plaintiff about the 

relief requested in this motion. Plaintiff opposes this request.

/s/ Erez Reuveni

EREZ REUVENI

U.S. Department of Justice

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CERTIFICATE OF SERVICE

I hereby certify that on August 5, 2022, I electronically filed this motion with the Clerk of 

the Court for the United States District Court for the Northern District of Texas by using the 

CM/ECF system. Counsel in the case are registered CM/ECF users and service will be 

accomplished by the CM/ECF system.

/s/ Erez Reuveni

EREZ REUVENI

U.S. Department of Justice

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