Arizona v. Biden, No. 22-3272 (6th Cir. 2022)
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The Secretary of Homeland Security’s 2021 Guidance notes that the Department lacks the resources to apprehend and remove all of the more than 11 million removable noncitizens in the country and prioritizes apprehension and removal of noncitizens who are threats to “national security, public safety, and border security.” Whether a noncitizen poses a threat to public safety "requires an assessment of the individual and the totality of the facts and circumstances.” The Guidance lists aggravating and mitigating factors that immigration officers should consider and does not “compel an action to be taken or not taken,” and “may not be relied upon to create any right or benefit.”
In a suit by Arizona, Montana, and Ohio, the district court issued a “nationwide preliminary injunction,” blocking the Department from relying on the Guidance priorities and policies in making detention, arrest, and removal decisions. The Sixth Circuit granted a stay pending appeal and subsequently reversed the order. The court noted “many dubious justiciability questions” with respect to standing. The Guidance leaves considerable implementation discretion and does not create any legal rights for noncitizens, suggesting it is not reviewable. Even if the states cleared the justiciability hurdles, they are unlikely to succeed on the merits of their claim that the Guidance violates the Administrative Procedure Act, whether on the grounds that it is contrary to law, it is arbitrary or capricious, or it lacks a required notice and comment, 5 U.S.C. 706(2), 553.
This opinion or order relates to an opinion or order originally issued on April 12, 2022.
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