CINCINNATI (CN) — A memo prioritizing the deportation of the most dangerous illegal aliens from the United States does not inflict direct harm upon states and is not a reviewable agency action, the Sixth Circuit ruled Tuesday.
A three-judge panel led by Chief U.S. Circuit Judge Jeffrey Sutton vacated a nationwide injunction imposed by a federal judge and determined the speculative nature of the harms alleged by Arizona, Ohio and Montana were insufficient to give them standing.
The three states challenged President Joe Biden's September 2021 memo shortly after it was finalized and were granted a preliminary injunction by U.S. District Judge Michael Newman in March 2022.
Specifically, the memo from the administration requires federal immigration officers to focus on the detainment and removal of "noncitizens who present a threat to national or border security or public safety."
The states claimed the analysis and "balancing test" required for each removal under the guidance exceeded the federal government's authority and Newman, a Donald Trump appointee, agreed. The judge determined federal immigration law leaves "no flexibility" when it comes to whether illegal aliens can be released from custody after they have been ordered to be removed from the country and called the guidance an "end-run around."
The federal government appealed the decision, and the case was argued less than a month ago before a Sixth Circuit panel.
Tuesday's decision written by Sutton, a George W. Bush appointee, vacated the injunction and emphasized the guidance "does not tie the hands of immigration officers."
Sutton rehashed the history of similar guidance passed under previous administrations and flatly stated that "prioritization is not new."
The states, represented at argument by Ohio Solicitor General Benjamin Flowers, claimed the leeway given to immigration officials as to which nonresidents could be removed would cause a marked decrease in deportations as a whole, while also costing the states money.
Sutton and the two other judges on the panel disagreed.
"That the national government decides to remove or detain person A over person B does not establish that it will pursue fewer people, particularly with respect to a guidance that never requires agents to detain some noncitizens over others," Sutton wrote. "Because the guidance prioritizes the noncitizens who pose the greatest risks to public safety, it is also hard to know whether fewer detentions and removals means more injuries to states even on their own terms." (Emphasis in original.)
The states presented statistics showing a decline in removals over the past several years, but Sutton pointed out the guidance was not necessarily the culprit.
"The national government's main enforcement authority affecting noncitizens within a state after all has little to do with detention and removal decisions at the back end," he said. "It has to do with prosecutorial discretion at the front end when immigration agents and law enforcement decide whom to arrest and whom not to."
The panel also rejected the states' notion that indirect costs associated with guidance imposed by the federal government constitutes a concrete injury to grant them Article III standing and called the connection a "bridge too far."
"Whatever costs the guidance creates for the states downstream arise only from officials who exercise their discretion under the guidance, confirming that those costs are not the guidance's 'direct or appreciable legal' consequences," Sutton said.
Setting procedural hurdles aside, the panel found the states' claims under the Administrative Procedure Act would likely fail on the merits, as "the guidance does not necessarily violate a single word of the [federal immigration] statute."
Sutton emphasized the Biden administration's guidance was reasonable in nature, aimed mainly at ensuring repeat offenders were not permitted to remain in the country, and pointed out the states failed to provide any concrete data on additional costs they might incur.
"If [the states] are right," he said in his conclusion, "the guidance may impose costs on them that are difficult to recover. But the extent of those costs is filled with ifs and maybes, particularly given the reality that the states concede that the relevant federal statutes do not tell the Department how to deploy its resources, do not stop it from setting prioritization categories, and do not prevent it from sending its enforcement agents wherever it wishes."
U.S. Circuit Judges Karen Moore and R. Guy Cole Jr., both Bill Clinton appointees, also sat on the panel.
Sutton expressed additional skepticism of Newman's decision in a six-page concurring opinion and said the nationwide injunction most likely exceeded the district court's authority.
"Call them what you will -- nationwide injunctions or universal remedies -- they seem to take the judicial power beyond its traditionally understood uses, permitting district courts to order the government to act or refrain from acting toward nonparties in the case," he said.
"Such injunctions create practical problems too," he continued. "They incentivize forum shopping. They short-circuit the decisionmaking benefits of having different courts weigh in on vexing questions of law and allowing the best ideas to percolate to the top. They lead to rushes to judgment.
"All of this loads more and more carriage on the emergency dockets of the federal courts, a necessary feature of any hierarchical court system but one designed for occasional, not incessant, demands for relief."
Neither the U.S. Department of Justice nor the Ohio Attorney General's Office immediately responded to requests for comment.
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