Sixth Circuit Dissolves Nationwide Injunction Of Immigration Guidance

• Published date: 18 April 2022
• Subject Matter: Litigation, Mediation & Arbitration, Immigration, Class Actions, General Immigration
• Law Firm: Squire Patton Boggs LLP
• Author: Mr Shams Hirji

The Sixth Circuit issued a very interesting decision three days ago in Arizona v. Biden (22-3272). The origins of the dispute go back to last fall when the Secretary of Homeland Security issued 'Guidelines for the Enforcement of Civil Immigration Law.' The Guidance notes the Department lacks the resources to apprehend and remove the roughly 11 million removable noncitizens in the country. As for removal of noncitizens who are already in state custody, the Guidance prioritizes the removal of those individuals who threaten national security, public safety, and border security. Eleven days before the Guidance took effect, three States ' Ohio, Arizona, and Montana ' filed suit against the United States, the Department of Homeland Security, and various officials (collectively, 'the Department'). In the States' view, the Guidance impermissibly deprioritized the removal of noncitizens who fall into other categories that Congress still wants removed, including noncitizens who commit drug crimes and crimes of moral turpitude. The States requested a preliminary injunction to prevent the Department from implementing the Guidance. The States claimed the Guidance violates the Administrative Procedure Act because it is contrary to law, arbitrary or capricious, and should have been subject to notice and comment. After the District Court granted the States a 'nationwide preliminary injunction,' the Department sought emergency relief in the Sixth Circuit.

The Sixth Circuit heard oral argument in the case on April 7, 2022, and just five days later the Court issued a decision staying the District Court's injunction. Chief Judge Sutton wrote the opinion for the Court, which Judge Moore and Judge Cole joined. Judge Sutton also took the unusual step of writing a concurring opinion in addition to his majority opinion addressing the issue of nationwide injunctions.

The Court's majority opinion tackled both justiciability and the merits of the States' challenge. On both fronts, the Court thought the feds were likely to succeed in their appeal of the District Court's injunction. On constitutional standing, the Court deemed the States' asserted injuries too speculative. The Court noted the Guidance does not directly injure the States. Indeed, the Court thought the Guidance could possibly decrease burdens on the States. The States also had a causation problem. The Court reasoned most of the fall in immigration enforcement is attributable to prosecutorial discretion at the front end...