Over the past few years, federal judges have played an increasingly powerful role in the U.S. government’s ability to implement immigration policies and programs. 2023 was no different. Here is a recap of some of last year’s most important judicial decisions that have helped or hindered immigration enforcement efforts across the United States. Understanding these rulings is crucial to forecasting what’s to come in 2024.
United States v. Texas
The Policy Challenged. On September 30, 2021, Secretary of Homeland Security Alejandro Mayorkas issued a policy memorandum, titled “Guidelines for the Enforcement of Civil Immigration Law”, which established a non-exhaustive list of factors that DHS officers must take into account before investigating, questioning, arresting, detaining, prosecuting, or removing aliens in the United States (collectively known as “enforcement action”). While the memorandum purports to not “compel a specific action to be taken”, the policy directly obstructs the rule of law by explicitly assuring that an alien’s illegal immigration status alone will not compel any DHS enforcement action.
Specifically, Secretary Mayorkas limited DHS’s enforcement priorities to include only aliens who pose a threat to national security, public safety, or border security, as the guidance narrowly defined those terms. Under these categories, DHS officers are only permitted to consider illegal or criminal aliens for removal who have engaged in terrorism or espionage; pose a current threat to public safety; or who have been apprehended after recently crossing the border illegally (after the relatively recent and arbitrary date of November 1, 2020).
The DHS policy goes further, instructing officers to apply a non-exhaustive list of mitigating and aggravating factors when considering whether to initiate or advance an enforcement action against aliens who pose a “current threat to public safety” on account of their criminal histories. While officers may consider factors such as the sophistication or seriousness of an alien’s crimes as permitting enforcement, the policy memorandum encourages DHS officers to refuse to act (regardless of statutory mandates) if sufficient mitigating factors exist. As a result of this and similar non-enforcement policies put in place since January 2021, removals of both criminal and illegal aliens have dropped to historic lows, all while border crossings have reached record-breaking highs.
The States of Texas and Louisiana filed suit, challenging the legality of the DHS policy in the U.S. District Court for the Southern District of Texas.1 The states asserted that the policy memorandum violates both federal immigration law and the Administrative Procedure Act (APA), which requires agencies to follow certain steps when taking certain agency actions, including substantive policy changes.
Notably, the state plaintiffs argued that the policy memorandum conflicted with the Immigration and Nationality Act (INA) §§ 236(c) and 241(a), both of which provide that the government “shall” detain or remove an alien who has committed certain crimes in the United States or is subject to an order of removal, respectively. Because the DHS policy limits detention and removal absent review of “the entire criminal and administrative record” to determine whether those enforcement actions are warranted, the States argued that the Mayorkas policy violates federal law. On June 10, 2022, Judge Drew Tipton vacated the Department’s September 29 memorandum.2
On July 6, 2022, the Fifth Circuit Court of Appeals denied DHS’s request that it stay Judge Tipton’s order, agreeing with the district court that DHS’s policy memorandum violated both procedural and substantive federal law.3 The Court of Appeals rebuked DHS’s theory, stating, “the limitless principle of law that DHS would have us draw... is untenable and wholly unsupported,”4 and emphasized that “Congress defines the scope of the agency’s discretion.”5 The Court of Appeals also agreed that both “the language found within [the policy memorandum] and the mechanisms of implementing it establish that it is indeed binding, thus removing DHS personnel’s discretion to stray from the guidance or take enforcement action against an alien on the basis of a conviction alone.”6 DHS appealed the vacatur of its policy to the U.S. Supreme Court.
The Ruling. On June 23, 2023, the Supreme Court ruled, 5-4, that Texas and Louisiana lacked Article III standing to challenge the DHS policy. Moreover, the Court held that such lawsuits run up against the executive branch’s Article II authority to decide “how to prioritize and how aggressively to pursue legal actions against defendants who violate the law.”7 The Court concluded that executive branch discretion over arrests and prosecutions extends to the immigration context, and as a result, the judicial system is generally not the “proper forum” for resolving whether the executive branch should take more enforcement actions.8
What’s Next? In its decision, the Court disclaimed that this ruling does not prevent the Court from ever considering cases involving the executive branch’s failure to make arrests or bring prosecutions. For example, the Court stated that it may adjudicate “selective prosecution” cases under the Equal Protection Clause; in cases where the Court finds “legally cognizable injuries redressable by a federal court”; and in cases where the executive branch “wholly abandons” its statutory responsibilities to make arrests and bring prosecutions. Moreover, the Court may consider challenges to policies that involve both prosecution priorities and the provision of benefits (like the Deferred Action for Childhood Arrivals (DACA) program).9
Florida v. United States
The Policy Challenged. The State of Florida brought this lawsuit asserting that DHS has violated the statutory detention mandates in § 235 (b)(1) and § 235(b)(2) of the INA. At the time the case was filed, the Biden administration was using three different policies to release migrants apprehended at the Southwest border: (1) release with a document issued called a “Notice to Report”, which instructs a migrant to report to an ICE office in the interior of the United States in order to later be served with a “Notice to Appear” (NTA), the charging document used for initiation of removal proceedings; (2) release with an NTA on the alien's “own recognizance” (OR) under section 236(a) of the INA; or (3) release on the administration’s “Parole+ATD” (i.e., a grant of parole under section 212(d)(5) of the INA with “alternatives to detention” protocols, such as GPS tracking or the SmartLINK app, in place).
While parole is an exception to the detention mandate in section 235(b) of the INA, section 212(d)(5) limits DHS to granting parole temporarily, “only on a case-by-case basis for urgent humanitarian reasons or significant public benefit”, and in anticipation that DHS will place the alien back into custody as soon as the purpose for which the parole was granted is completed.
The Ruling. On March 8, 2023, the district court ruled that the Parole+ATD policy is unlawful, violates the INA on several grounds, and should be vacated under the APA.10 Judge Wetherell, writing for the district court, found that DHS failed to comply with any of the requirements of the parole statute, noting that a July 2022 memorandum laying out the protocols for Parole+ATD violated the “case-by-case” requirement, focusing largely on DHS’s operational circumstances rather than the specific details of an individual’s case.
The district court determined that DHS’s policy improperly enforced a presumption that an alien would be eligible for parole, in conflict with the limiting terms of the parole statute. Judge Wetherell held, “[T]he July Memo turns the parole standard on its head by providing ineligibility criteria rather than eligibility criteria. In other words, the July memo essentially establishes a presumption of parole when the relevant ‘triggers’ are met, in violation of the parole statute.”
Moreover, Judge Wetherell explained that aliens released on OR with an NTA, pursuant to section 236(a) of the INA, were done so improperly because recent inadmissible arriving aliens are subject to detention provisions under section 235(b) of the INA, not section 236(a). Section 236(a) only applies to aliens arrested “on a warrant”. Border Patrol apprehensions, however, are warrantless, authorized by section 287(a)(2) of the INA.
The court also found that DHS does indeed have a “non-detention policy”, but the court determined that this policy was not a discrete “agency action” that is subject to review under the APA. The court noted, however, that “if it was, it would be subject to vacatur because it contravenes the INA”.
On June 5, 2023, Court of Appeals for the Eleventh Circuit rejected a request from DHS to stay the lower court’s injunctions, finding that the government had failed to establish that it will incur “irreparable injury” because of the injunctions.11
What’s Next? The appeal of this case is consolidated with the DHS’s appeal of a similar case, Florida v. Mayorkas (see below). The Eleventh Circuit is currently considering the appeal.
Florida v. Mayorkas
The Policy Challenged. In a separate but similar challenge, the State of Florida filed this lawsuit on May 10, 2023, claiming that DHS’s “Parole with Conditions” policy was issued in violation of Judge Wetherell’s order that vacated the “Parole+ATD” policy. Florida also asserted that this policy violated the statutory detention mandates in § 235 (b)(1) and § 235(b)(2) of the INA and the APA.
The “Parole with Conditions” policy was issued to replace the “Parole+ATD” policy that was enjoined by Judge Wetherell in Florida v. United States (described above).12 U.S. Customs and Border Protection (CBP) issued the “Parole with Conditions” policy immediately before the Biden administration ended its use of the Centers for Disease Control and Prevention’s Title 42 public health order that was in operation to quickly expel inadmissible border-crossers during the pandemic rather than place them into immigration proceedings.
The Ruling. On May 11, one day after the lawsuit was filed, Judge Wetherell issued a Temporary Restraining Order (TRO) to prevent the federal government from implementing the policy.13 The district court agreed with the federal government that the prior Florida decision “did not preclude DHS from using its parole authority in other ways” but clarified that, “what DHS cannot do is adopt a functionally identical policy as the one the Court vacated in the Florida decision and then expect a different outcome when that policy is challenged.”14 After a motion from the Biden administration requesting that the court covert the TRO to a preliminary injunction, Judge Wetherell issued a preliminary injunction on May 16, 2023, but denied the request to stay the TRO.
On May 31, Florida amended its complaint to add a claim to the lawsuit against the Biden administration’s “Notice to Appear/Own Recognizance” (NTA/OR) policy. This policy also authorizes DHS to release aliens from mandatory detention pending the duration of their immigration proceedings.
What’s Next? The Biden administration has appealed the preliminary injunction to the Eleventh Circuit Court of Appeals. Given the Eleventh Circuit’s earlier decision in Florida v. United States, we expect the Court of Appeals here to deny DHS’s request. Oral arguments on the matter were scheduled for January 26, 2024.
Texas v. United States
The Policy Challenged. The Obama administration, through issuance of a three-page policy memorandum, created the DACA program on June 15, 2012. DACA provides immigration benefits, including lawful presence, employment authorization, and forbearance from deportation to certain aliens who are in the United States illegally. In addition to other eligibility criteria, beneficiaries must have been under the age of 31 on or before June 15, 2012, and have entered the United States prior to 2007, thus the DACA-eligible population is now between the ages of 26 and 42 years old. As of 2022, using DACA, DHS has allowed over 825,000 aliens in the United States illegally to work and obtain numerous public benefits, with an estimated eligible population of up to 1.7 million aliens.15 On September 28, 2021, DHS reported that over 660,000 individuals were enrolled in the program.
In May 2018, while litigation challenging the Trump administration’s rescission of DACA was ongoing, several states, led again by Texas, filed a lawsuit against DHS challenging DACA's implementation in the first instance.16 On July 16, 2021, the U.S. District Court for the Southern District of Texas ruled that DACA’s creation violated the notice-and-comment requirement of the APA.17 The ruling went further, however, to hold that the program is also substantively invalid because, as the court explained, “While the law certainly grants some discretionary authority to the agency, it does not extend to include the power to institute a program that gives deferred action and lawful presence, and in turn, work authorization and multiple other benefits to 1.5 million individuals who are in the country illegally.”18
While appealing this decision, DHS codified DACA by issuing a final regulation as an attempt to legitimize the program and strengthen the agency’s legal posture.19 DHS acknowledged the full extent of the district court ruling in a footnote in the proposed DACA regulation, writing, “The district court in [Texas] also concluded that ‘DACA is an unreasonable interpretation of the law because it usurps the power of Congress to dictate a national scheme of immigration laws and is contrary to the INA.’”20 Brazenly, DHS responded by stating, “The Department respectfully disagrees” and went on to reiterate the same view of DACA that the district court had rejected. The final DACA regulation went into effect on October 31, 2022.
On October 5, 2022, the Fifth Circuit Court of Appeals ruled the original DACA program violated both procedural and substantive law, stating that “Congress determined which aliens can receive these benefits, and it did not include DACA recipients among them. We agree with the district court’s reasoning and its conclusions that the DACA Memorandum contravenes comprehensive statutory schemes for removal, allocation of lawful presence, and allocation of work authorization.”21 The court of appeals remanded the case to the lower district court to reconsider the legal challenge as it applied to DHS’s new DACA regulation.22
The Ruling. On September 13, 2023, the U.S. District Court for the Southern District of Texas ruled that the Biden administration’s DACA regulation, like the original policy created by an Obama administration policy memorandum, was unlawful and an abuse of executive branch authority. “[Congress’s] inaction, whether justifiable or not, does not give DHS carte blanche to take any action it wants.” In response to the government’s defense that “Congress has not taken any action to override or prohibit the use of deferred action,” the court responded that, “This kind of reasoning simply turns the Constitution upside down.” The court concluded that “There are no material differences between [the DACA regulation and the original DACA policy]. As such, the Final Rule suffers from the same legal impediments.”
What’s Next? The ruling allows current DACA recipients to maintain and renew their DACA status and work authorization. DHS, however, is prohibited from approving new (or “initial”) DACA applications. Despite this prohibition, USCIS has decided to continue to accept initial applications, but will only process renewals while the court order is in effect.
United States v. Carrillo-Lopez
The Policy Challenged. The lawsuit was brought on behalf of Gustavo Carrillo-Lopez, a citizen of Mexico who was charged with illegally reentering the United States following a prior removal in violation of 8 U.S.C. § 1326. The plaintiff challenged the statute on the grounds that § 1326 violates the equal protection guarantee of the Fifth Amendment of the U.S. Constitution, arguing that § 1326 is facially invalid.
Carrillo-Lopez argued that the statute violated the Fifth Amendment because it discriminates against Mexicans and other Central and South Americans. While the statute is drafted to be facially neutral as to race, Carrillo-Lopez argued that racism underpinned the basis for both the 1929 and 1952 legislation, in which the statutory language originates.23
The U.S. District Court for the District of Nevada ruled in favor of Carrillo-Lopez, granting his motion to dismiss. The district court found that the government “failed to establish that a nondiscriminatory motivation existed in 1952 for reenacting § 1326 that exists independently from the discriminatory motivations, in either 1929 or 1952.
The Ruling. On May 22, 2023, after analyzing the legislative history of § 1326 of the INA, the Ninth Circuit Court of Appeals reversed the district court ruling, upholding the statute. The Ninth Circuit found that imputing discriminatory motives to Congress is improper unless backed up with evidence. Specifically, the court wrote “evidence that § 1326 had a disparate impact on Mexicans and other Central and South Americans — and that Congress knew of this impact and enacted § 1326 because of the impact — is highly attenuated.”24 The panel reminded the district court that evidence that the legislation had a disproportionate impact on an identifiable group is generally not adequate to show a discriminatory motive.
What’s Next? The Ninth Circuit’s ruling emphasizes that, when analyzing statutes that are not discriminatory on their face, courts should apply a “strong showing of good faith on the part of Congress”. The plaintiff appealed this decision to the Supreme Court, however in January 2024, the Court denied the plaintiff’s request for review.25
Massachusetts Coalition for Immigration Reform v. DHS
The Policy Challenged. The Massachusetts Coalition for Immigration Reform, a nonpartisan group that that advocates for lower immigration levels, brought this lawsuit to challenge various Biden administration immigration and border policies that were implemented without compliance with National Environmental Policy Act (NEPA) procedures. The Coalition claims that DHS failed to conduct required NEPA analyses for the following actions: ending construction of barriers on the Southern border; terminating the Migrant Protection Protocols (also known as “Remain in Mexico”); allowing CBP officers to parole inadmissible aliens into the interior of the country en masse; issuing policies that prevent immigration officials from detaining and removing inadmissible or removable aliens; ending the practice of fining aliens for failure to leave the country following an order of removal; reinstating broad administrative closure policies in immigration courts; and expanding various refugee programs.26
The plaintiffs contend that DHS has not complied with NEPA’s explicit requirement to conduct environmental impact analyses before undertaking “major Federal actions significantly affecting the quality of the human environment”.27 Under NEPA, “major federal actions” include “new and continuing activities ... financed, assisted, conducted, regulated, or approved by federal agencies” and new agency rules, regulations, and policies.28 Before an agency may take an action that significantly affects the environment, agencies must include a detailed statement, called an “Environmental Impact Statement” (EIS), about the action’s projected environmental effects, the feasibility of alternatives, and more.29 An agency may also conduct a preliminary Environmental Assessment (EA) to determine whether a particular action might significantly impact the environment at all. If the action will, NEPA requires the agency to submit an EIS.
The Ruling. On September 30, 2023, the District Court for the District of Columbia denied in part DHS’s motion for summary judgment, noting that “NEPA’s procedural requirements” are not “somehow discretionary”.30 Judge McFadden, however, found there was an issue of fact regarding whether the identified DHS policies caused the increase in illegal border crossings and the environmental impact that has resulted. The ruling also limited a finding of standing for a subset of the plaintiffs: those who live near the border.
What’s Next? Judge McFadden ordered a trial to evaluate testimony on the issue of causation, which is set for June 26, 2024. If causation between the specific Biden administration immigration policies at issue and the increase in illegal border crossings is established, this case may pave the way for the first ruling holding that NEPA procedures apply to immigration-related policies and programs. DHS can be expected to appeal any such decision. The parties are currently in discovery to prepare for the trial.
What We Can Expect to See in 2024
A significant portion of the Biden administration’s regulatory agenda will be tested in the courts in 2024. State plaintiffs will also continue to lead in challenging government policies, despite the Supreme Court’s decision in United States v. Texas that will severely restrict states’ abilities to establish standing when challenging the federal government’s non-enforcement policies.
For instance, in the U.S. District Court for the District of North Dakota, 18 states have filed suit to block the Biden administration’s “Circumventing Lawful Pathways” rule and related-parole policies.31 This rule, which was put forth by the administration as a purported measure to discourage illegal crossing, furthers the Biden administration’s strategy to parole inadmissible aliens into the United States by exempting migrants who use the government’s new CBP One app to schedule their arrival to the United States from asylum-related consequences for unlawful entry. The states charge that these actions ignore the requirements of both the INA and the Secure Fence Act of 2006, “thus facilitating the entry of unauthorized aliens into the United States, the Circumvention Rule encourages a greater influx of unauthorized aliens into Plaintiff States”.32 This case is captioned Indiana v. Mayorkas.
The State of Texas has also filed its own challenge to the Circumventing Lawful Pathways rule. Texas also argues that DHS failed to comply with APA requirements when promulgating the rule and that the CBP One exception to the asylum restriction violates the INA. This case, captioned Texas v. Mayorkas, was brought in the U.S. District Court for the Western District of Texas.33
We also expect to see a ruling in the U.S. District Court for the Southern District of Texas for a challenge led by the State of Texas and 19 other state plaintiffs on the Biden administration’s recently created parole programs for certain nationals of Cuba, Haiti, Nicaragua, and Venezuela. These parole programs allow inadmissible aliens from these countries to apply for parole from home and fly directly into the interior of the United States. The Biden administration announced that it plans to allow as many as 360,000 inadmissible aliens be paroled into the United States and apply for work authorization per year under these programs.
The state plaintiffs argue that the administration failed to “explain or analyze” how it “would remove from the United States aliens paroled through the program after the end of any period of authorized parole, despite admitting general difficulty removing such aliens to their home countries presently”.34 Furthermore, the state plaintiffs argued that the programs have never been authorized by Congress and violate both the APA and the parole statute at section 212(d)(5) of the INA. This case is captioned Texas v. DHS.
Moreover, the State of Texas filed a lawsuit in the U.S. District Court for the Southern District of Texas challenging the Biden administration’s “Public Charge Ground of Inadmissibility” regulation that was finalized in September 2022.35 This regulation replaced the Trump administration’s public charge rule with a policy that mimics DHS’s original, Clinton-era policy. The regulation defines key terms, including “public charge”, used in section 212(a)(4) of the INA. Section 212(a)(4) makes an alien who is an applicant for a visa, admission, or adjustment of status inadmissible to the United States if he or she is likely at any time to become a public charge. Unlike the Trump-era rule, both the Clinton and Biden policies allow aliens to receive substantial public benefits without immigration consequences. In its complaint, Texas asserts that the Biden administration’s regulation both violates the public charge statute and was promulgated in violation of the APA.36
Additionally, Texas and Arizona are leading the charge in challenging the “Asylum and Credible Fear Process” interim final rule (IFR), which made sweeping changes to regulations governing the credible fear process.37 These changes allow asylum officers, rather than immigration judges, to issue final grants of asylum for recent border-crossers claiming a fear of return. In both lawsuits, the state plaintiffs assert that the IFR violates the APA, the Homeland Security Act, the INA, and the U.S. Constitution.
We expect rulings to be issued in both cases on the government’s respective motions to dismiss these cases. Texas’s case was brought in the U.S. District Court for the Northern District of Texas. The parties completed discovery in this case in September 2023 and briefed the court on the government’s motion to dismiss in November 2023. Arizona’s case, which includes 18 other states as co-plaintiffs, was brought in the U.S. District Court for the Western District of Louisiana. Briefing on the government’s motion to dismiss this case is scheduled to conclude in early February 2024.
Importantly, we also expect to come closer to a final resolution of the now decade-long DACA controversy. The federal courts are now tasked with evaluating the Biden administration’s DACA regulation (rather than the 2012 implementing memorandum) on the merits.38 Rulings from the U.S. District Court for the Southern District of Texas and the Fifth Circuit Court of Appeals suggest that the Biden administration will need to eventually seek Supreme Court review if it wishes to maintain the program.39
USCIS will also likely face legal challenges from businesses and alien advocates on its new fee rule, which has increased application and petition fees across the immigration system. The agency, which is almost entirely fee-funded, is required to review its fee structure every two years. USCIS, however, has not been able to update its fees since 2016 because of interference imposed by litigation during Trump administration.
End Notes
1 Texas v. United States, Case No. 6:12-CV-00016 (S.D. Tex. 2021).
2 Texas v. United States, Civil Action No. 6:21-CV-00016 (Jun. 10, 2022).
3 Texas v. United States, Case No. 22-40367 (5th Cir. 2022).
4 Id. at slip op. 25.
5 Id. at slip op. 18.
6 Id. at slip op. 30.
7 United States v. Texas, 599 U.S. 670 (2023) (citing TransUnion LLC v. Ramirez, 141 S.Ct. 2190 (2021)).
8 United States v. Texas, 599 U.S. 670 (2023).
9 Id. at 671.
10 Florida v. United States, Case No. 3:21-cv-1066-TKW-ZCB (N.D. Fla. 2023).
11 Florida v. United States, Case No. 23-11528 (11th Cir. 2023).
12 See “Memorandum to All Chief Patrol Agents, from Raul L. Ortiz, U.S. Border Patrol, Re: Policy on Parole with Conditions in Limited Circumstances Prior to the Issuance of a Charging Document (Parole with Conditions)”, May 10, 2023.
13 Florida v. Mayorkas, Case No. 3:23cv9962-TKW-ZCB (N.D. Fla. 2023).
14 Id. at 11.
15 Deferred Action for Childhood Arrivals, 86 Fed. Reg. 53736 (Sept. 28, 2021).
16 See Dep’t of Homeland Security v. Regents of the Univ. of Cal., 140 S. Ct. 1891 (2020).
17 Texas v. United States, 549 F. Supp. 3d 572, 624 (S.D. Tex. 2021).
18 Id. at 605.
19 Deferred Action for Childhood Arrivals, 87 Fed. Reg. 53152 (Aug. 10, 2022).
20 Deferred Action for Childhood Arrivals, 86 Fed. Reg. 53736, n.178 (Sept. 28, 2021).
21 Texas v. United States, 50 F.4th 498 (5th Cir. 2022).
22 Id. at 531.
23 United States v. Carrillo-Lopez, 555 F. Supp. 3d 996 (D. Nev. 2021).
24 United States v. Carrillo-Lopez, 68 F.4th 1133 (9th Cir. 2023).
25 U.S. Supreme Court, “Order List: 601 U.S., Monday, January 22, 2024”.
26 Massachusetts Coalition for Immigration Reform v. DHS, Case No. 1:20-cv-3438 (TNM).
27 42 U.S.C. § 4332(2)(c).
28 40 C.F.R. § 1508.1(q)(2).
29 See 43 U.S.C. § 4332(2)(c)(i-v).
30 Massachusetts Coalition for Immigration Reform v. DHS, No. 1:20-cv-3438 (D.D.C. 2023).
31 88 Fed. Reg. 31314 (May 16, 2023).
32 Indiana v. Mayorkas, Case No. 1:23-cv-00106-CRH (filed May 31, 2023).
33 Texas v. Mayorkas, Case No. 2:23-cv-00024-AM (filed May 23, 2023).
34 Texas v. DHS, Case No. 6:23-cv-00007 (filed Jan. 24, 2023).
35 See 87 Fed. Reg. 55472 (September 9, 2022).
36 Texas v. Mayorkas, Case No. 6:23-cv-00001 (filed January 5, 2023).
37 See Texas v. Mayorkas, Case No. 2:22-CV-094-Z (N.D. Tex. 2022); Arizona v. Garland, Civil Action No. 6:22-cv-01130-DCJ-CBW (W.D. La. 2022).
38 Texas v. United States, 50 F.4th 498 (5th Cir. 2022).
39 Id.; see Texas v. United States, 549 F. Supp. 3d 572, 624 (S.D. Texas 2021).