https://drive.google.com/file/d/1QEzh6XjcvS61N-n37lS7OMMqOzJiwF9u/view?usp=sharing
UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF FLORIDA
PENSACOLA DIVISION
STATE OF FLORIDA, Plaintiff,
v.
UNITED STATES OF AMERICA, et al., Defendants.
Case No. 3:21-cv-1066-TKW-ZCB
OPINION AND ORDER
I. Executive Summary
There is an immigration “crisis” at the Southwest Border. The Chief of the U.S. Border Patrol (USBP) candidly admitted it in his testimony and the overwhelming weight of the evidence confirms it. The crisis has been ongoing for over two years and shows no sign of abating.
The evidence establishes that the current status quo at the Southwest Border is unsustainable, but it is not the Court’s job to solve the immigration crisis—that is the job of the political branches.1 Nor is it the Court’s job to decide whether the policies challenged by Florida in this case (or the underlying immigration laws) are good or bad public policy—that too is the job of the political branches. Instead, the Court’s only job is to determine based on the evidence presented whether challenged policies comply with the immigration laws, as written.
* * *
The Supreme Court has recognized that immigration officials have “broad discretion” in carrying out the immigration laws, see Arizona v. United States, 567 U.S. 387, 396 (2012). But that discretion must be exercised within the confines established by Congress because, as the Supreme Court has repeatedly held, Congress—not the President or Executive Branch officials—has the “complete and absolute power” over the subject of immigration and “plenary power” over the admission and exclusion of aliens.2 See, e.g., Kleindienst v. Mandel, 408 U.S. 753, 766 (1972) (quoting Boutilier v. INS, 387 U.S. 118, 123 (1967)); Oceanic Steam Navigation Co. v. Stranahan, 214 U.S. 320, 343 (1909).
Congress exercised that power by enacting the Immigration and Nationality Act (INA), which is codified as amended in 8 U.S.C. §1101 et seq. Most pertinent to this case is 8 U.S.C. §1225, which establishes the policies and procedures for processing what the statute refers to as “applicants for admission”—that is, aliens arriving in the United States at ports of entry or other locations.
Under §1225(b)(1)(A), certain arriving aliens, including those who lack proper admission documents, are subject to expedited removal “without further hearing or review.” However, if such an alien indicates an intention to apply for asylum or a fear of persecution, the alien “shall be detained” pending a final determination of asylum or credible fear of persecution. See 8 U.S.C. §1225(b)(1)(B)(ii), (b)(1)(B)(iii)(IV) (emphasis added). For all other arriving aliens, unless an immigration official determines that the alien is clearly and beyond a doubt entitled to be admitted, the alien “shall be detained” for removal proceedings. See 8 U.S.C. §1225(b)(2)(A) (emphasis added).
In 2018, in Jennings v. Rodriguez, the Supreme Court held that“§§1225(b)(1) and (b)(2) mandate detention of aliens throughout the completion of applicable proceedings and not just until the moment those proceedings begin.” 138 S. Ct. 830, 845 (2018) (emphasis added). Last year, in Biden v. Texas, the Supreme Court assumed without deciding that the federal government was violating §1225(b)(2)(A) by not detaining aliens arriving at the Southwest Border, see 142 S. Ct. 2528, 2542 (2022), but the Court left unanswered the question of “whether the detention requirement in section 1225(b)(2)(A) is subject to principles of law enforcement discretion, as the Government argues, or whether the Government’s current practice simply violates that provision,” id. at 2542 n.5. This case requires that question to be answered.
The State of Florida contends that Defendants3 are violating the statutory detention mandates in §1225(b)(1) and (b)(2) by releasing aliens arriving at the Southwest Border into the country en masse through various “non-detention policies,” including the Parole+ATD policy and the exercise of “prosecutorial discretion” under 8 U.S.C. §1226(a). Defendants respond that there is no overarching “nondetention policy”; that they have the discretion not to detain aliens notwithstanding the mandatory language in §1225(b)(1) and (b)(2); and that Florida does not have standing to challenge their discretionary decisions to release aliens into the country on parole or otherwise.
For the most part, the Court finds in favor of Florida because, as detailed below, the evidence establishes that Defendants have effectively turned the Southwest Border into a meaningless line in the sand and little more than a speedbump for aliens flooding into the country by prioritizing “alternatives to detention” over actual detention and by releasing more than a million aliens into the country—on “parole” or pursuant to the exercise of “prosecutorial discretion” under a wholly inapplicable statute—without even initiating removal proceedings. The evidence further establishes that Florida is harmed by the challenged policies because well over 100,000 aliens have been released into Florida under the policies and the state has incurred substantial costs in providing public services to aliens, including those who should have been detained under §1225(b)(1) and (b)(2) and would not have been in the state but for the challenged policies. However, the Court only has the authority to vacate the Parole+ATD policy because the overarching “nondetention policy” is not discrete “agency action” that is subject to judicial review under the Administrative Procedure Act (APA).
D. Remedy
Having determined that the Parole + ATD Policy violates the APA on several grounds, the Court must consider the appropriate remedy. Florida asks the Court to vacate the policy and issue declaratory relief. DHS argues that 8 U.S.C §1252(f)(1) bars both injunctive relief and APA vacatur and that declaratory relief would have to be narrowly tailored so as not to circumvent §1252(f)(1) or violate separation of powers principles. Alternatively, DHS argues that any remedy would need to be limited to Florida and the harm it suffered and not a “universal injunction.”
Under the APA, a court must “hold unlawful and set aside agency action” that violates the APA. 5 U.S.C. §706(2). In the Eleventh Circuit,“[v]acatur . . . is the ordinary APA remedy.” Black Warrior Riverkeeper, 781 F.3d at 1290 (quotation omitted). Vacatur typically operates to set aside a rule generally, not as a partial remedy for the plaintiffs. See Nat’l Mining Ass’n v. U.S. Army Corps of Eng’rs, 145 F.3d 1399, 1409 (D.C. Cir. 1998) (explaining that “the ordinary result” of a successful APA claim is that “the rules are vacated” and not that “their application to the individual petitioners is proscribed” (quotation omitted)).
Even if the party-specific vacatur DHS seeks were a proper remedy under the APA, complete vacatur is “necessary to grant complete relief to” Florida here. Health Freedom Def. Fund, Inc. v. Biden, 599 F. Supp. 3d 1144, 1177 (M.D. Fla. 2022). Once released at the Southwest Border, aliens are free to travel throughout the United States. If the Court were to adopt DHS’s request—which would essentially involve DHS asking aliens where they are going and applying the challenged policies to aliens who don’t respond with “Florida”—released aliens would be free to travel to Florida. See id. at 1178 (denying a request for partial vacatur where there were “no adequate assurances that the government can provide that its agents . . . will not violate this Court’s order and deprive Plaintiffs of their relief”). Moreover, if DHS only detained applicants for admission who say they are traveling to Florida and released other aliens, the Court expects that it would not take long for immigration law violators to figure out how to ensure their own release.
DHS also argues that §1252(f)(1) precludes the Court from vacating either of the challenged policies. That statute provides in pertinent part that “no court (other than the Supreme Court) shall have jurisdiction or authority to enjoin or restrain the operation of the provisions of part IV of this subchapter.” DHS contends that because vacatur of the policies would violate this statute because it would effectively enjoin or restrain the manner in which the referenced provisions of the INA operate.
The Supreme Court explained that §1251(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.” Aleman Gonzalez, 142 S. Ct. at 2065 (emphasis added); see also Reno v. Am.-Arab Anti-Discrimination Comm., 525 U.S. 471, 481 (1999) (explaining that §1252(f)(1) is “nothing more or less than a limit on injunctive relief”). Neither the Supreme Court nor the Eleventh Circuit has decided whether this statute precludes vacatur under the APA, although the Supreme Court is poised to answer that question this Term in United States v. Texas, No. 22-58.
Vacatur is “a less drastic remedy” than an injunction, Monsanto Co. v. Geertson Seed Farms, 561 U.S. 139, 165–66 (2010), and the Fifth Circuit concluded in the opinion currently on review at the Supreme Court that §1252(f)(1) does not preclude vacatur under the APA because vacatur “does nothing but re-establish the status quo absent the unlawful agency action” and “neither compels nor restrains further agency decision-making.” Texas v. United States, 40 F.4th at 220. The Court finds the Fifth Circuit’s reasoning persuasive. Thus, the Court finds that §1252(f)(1) does not strip it of the authority to vacate either of the challenged policies under the APA.
Moreover, even if the Supreme Court quashes the Fifth Circuit’s decision, that will likely34 only impact the availability of vacatur with respect to the Non-Detention Policy because that policy implicates DHS’s exercise of its authority under §1225 and §1226, which are both in part IV of the INA. By contrast, §1182(d)(5), which is the statute on which the Parole+ATD policy is based, is contained in part II of the INA, not part IV, and any indirect impact that vacatur of that policy might have on how DHS exercises its authority under part IV of the INA does not equate to the Court having “enjoin[ed] or restrain[ed]” the operation of that part.
Accordingly, vacatur of the Parole+ATD policy is not precluded by §1252(f)(1) and is the appropriate remedy under the circumstances. A separate declaration that the Parole+ATD policy is unlawful is unnecessary because that is implicit in the Court’s finding that the policy violated §706(2)(A) and (C) of the APA.
IV. CONCLUSION
In sum, for the reasons stated above, the Court finds that (1) the Non-Detention Policy exists but is not discrete “agency action” that is subject to judicial review under the APA—although if it was, it would be subject to vacatur because it contravenes the INA; and (2) the Parole+ATD Policy is unlawful and is due to be vacated under the APA. Accordingly, it is
ORDERED that:
1. The deferred portion of Defendants’ motion for summary judgment (Doc. 88) is DENIED.
2. The Parole+ATD Policy is VACATED under the APA, and that policy is REMANDED to DHS for further proceedings consistent with this Opinion and Order.
3. The Clerk shall enter a final judgment stating: Judgment is entered in favor of Plaintiff on Counts 2, 4, and 6 of the second amended complaint, and the Parole+ATD Policy is vacated and remanded to the Department of Homeland Security for further proceedings consistent with the Opinion and Order entered on this date. Judgment is entered in favor of Defendants on Counts 1, 3, 5, 7 and 8 of the second amended complaint and those claims are dismissed with prejudice.
4. The Judgment is STAYED for 7 days from this date to allow Defendants to seek appellate review.
5. The Clerk shall close the case file.
DONE and ORDERED this 8th day of March, 2023.
T. KENT WETHERELL, II
UNITED STATES DISTRICT JUDGE
No comments:
Post a Comment