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Case Name Texas v. United States IM-TX-0057
Docket / Court 6:21-cv-00003 ( S.D. Tex. )
State/Territory Texas
Case Type(s) Immigration and/or the Border
Attorney Organization ACLU Affiliates (any)
ACLU Immigrants' Rights Project
ACLU National (all projects)
Case Summary
Shortly after President Joe Biden's inauguration on January 20, 2021, Acting Homeland Security Secretary David Pekoske issued a memorandum ordering U.S. Immigration and Customs Enforcement ("ICE") to halt most deportations from the United States for 100 days ("100 day pause"). The 100 day pause was ... read more >
Shortly after President Joe Biden's inauguration on January 20, 2021, Acting Homeland Security Secretary David Pekoske issued a memorandum ordering U.S. Immigration and Customs Enforcement ("ICE") to halt most deportations from the United States for 100 days ("100 day pause"). The 100 day pause was intended to allow time for ICE to overhaul its enforcement priorities and focus its efforts on threats to national security, public safety, and border security. The 100 day pause did not apply to individuals who arrived after November 1, 2020 and allowed for certain exceptions, including national security.

Two days later, Texas Attorney General Ken Paxton filed this lawsuit against the United States, Acting Secretary Pekoske, DHS, USCIS, CBP, ICE, and various officials from each agency in the U.S. District Court for the Southern District of Texas to try and block the 100 day pause on deportations. Texas sought a declaration that the memorandum was unlawful, a preliminary and permanent injunction preventing the defendants from implementing the memorandum, and attorney's fees and costs. Texas alleged that the 100 day pause violated an agreement Paxton and Texas Governor Greg Abbott signed with former Acting Deputy Secretary of Department of Homeland Security Ken Cuccinelli that required the federal government to provide six months notice and consult with Texas before taking action that could reduce immigration enforcement or increase the number of noncitizens who were removable or inadmissible in the United States. Paxton and Abbott signed this agreement days before President Biden's inauguration. Texas also argued that the 100 day pause violated the Take Care Clause of the Constitution because it directed the executive to not enforce the law.

In addition, Texas alleged that the 100 day pause violated the APA in several different ways. First, Texas argued that the 100 day pause violated the APA because the pause would prevent DHS from complying with Section 1231 of the Immigration and Nationality Act. Section 1231 provides that “when [a noncitizen] is ordered removed, the Attorney General shall remove the [noncitizen[ from the United States within a period of 90 days.” Texas argued that this created a 90 day deadline for removals to occur and that a 100 day pause in removals would necessarily cause DHS to go beyond this deadline. Second, Texas argued that the pause violated the APA because it was arbitrary and capricious in violation of the APA. Texas alleged that the 100 day pause represented a sharp departure from previous policy but that the memorandum failed to explain the change or consider the harm halting removals would cause, thereby rendering it arbitrary and capricious. Third, Texas alleged that the 100 day pause was a legislative rule requiring notice and comment under the APA. Lastly, Texas argued that the 100 day pause prevented DHS from enforcing immigration laws and was ultra vires because it exceeded the authority DHS could delegate.

The case was assigned to Judge Drew B. Tipton.

Immediately, Texas filed a motion for a temporary restraining order. Texas argued that the 100 day pause would irreparably harm Texas by increasing the amount of money the state would have to spend on services, such as education, healthcare, and social services if the federal government stopped removals. After a hearing on the motion, Texas filed a notice on January 24, 2021 citing a Fox News report claiming that ICE was releasing all noncitizens from detention in Texas. The defendants responded that this was not the case, but that ICE had released a group of noncitizens pursuant to an injunction in Fraihat that required class members with specified COVID risk factors to be released.

The ACLU and ACLU of Texas filed an amicus brief in support of the defendants. They argued that the agreement between Texas and the federal government was unenforceable, that Texas lacked standing, and that Texas could not demonstrate irreparable harm.

Judge Tipton granted the temporary restraining order on January 26, 2021. Texas v. United States, --- F. Supp. 3d ---, 2021 WL 247877 (2021). The temporary restraining order suspended the 100 day pause nationwide for 14 days. Judge Tipton made clear that the order was not based on the agreement between Texas and the federal government signed just before President Biden's inauguration. He stressed that the issues raised by the agreement with Texas were "of such gravity and constitutional import that they require further development of the record and briefing prior to addressing the merits." Instead, Judge Tipton based the order on Texas's claims under the APA. Judge Tipton found that Texas was likely to succeed on at least two of its claims under the APA: that the 100 day pause violated Section 1231 and that the defendants arbitrarily and capriciously departed from previous policy. He also found that Texas demonstrated it would suffer irreparable harm because of the financial costs of additional social services. Finally, he found that the threat of injury to Texas outweighed any harm to the defendants and the temporary restraining order served the public interest.

Two days later, FIEL Houston and the Refugee and Immigrant Center for Education and Legal Services ("RAICES"), represented by ACLU national, the ACLU of Texas, and the ACLU Immigrant Rights' Project, filed an emergency motion to intervene as defendants in the case. The two organizations' members and clients include noncitizens at risk of deportation and other adverse consequences if Texas were to succeed in this lawsuit. The organizations requested the Court permit them to intervene to protect the interest of their clients by providing their expertise on the immigration system and their perspective on impacted communities. Judge Tipton granted the organizations permission to intervene on February 6, 2021. 2021 WL 411441. He found that FIEL Houston's and RAICES' motion was timely, that there would be no undue delay or prejudice by permitting intervention, and that they asserted defenses that shared a common question of law and fact with the lawsuit. Judge Tipton noted how both the intervenors and the defendants challenged Texas's standing to bring the suit and the enforceability of the agreement between DHS and Texas. Finally, the Court found that the organizations had interests that the federal defendants may not adequately represent because the federal defendants' arguments would focus on expansive executive authority whereas the intervenors' would focus on the effect of the pause on individuals subject to a final order of removal.

On February 5, 2021, Texas filed a motion for a preliminary injunction. Texas argued that they were likely to succeed on their APA claims, their argument that the January 20 Memorandum violated the Take Care Clause, and their argument that DHS violated its Agreement to notify and consult Texas. Texas also pointed to the brevity of the administrative record filed by the defendants on February 3, 2021. They argued that this demonstrated the defendants failed to consider alternative possible policies and by failing to consider other policies, acted arbitrarily and capriciously. In addition, Texas repeated their arguments from the TRO motion that they would suffer irreparable harm by increasing the amount of money Texas would have to spend on mandated social services.

Texas also sought a 14 day extension of the temporary restraining order. The Court granted the extension to give the parties time to develop the record and because the briefing for the preliminary injunction extended beyond the initial temporary restraining order. This case is ongoing. More updates to come.

Emily Kempa - 02/10/2021


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Issues and Causes of Action
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Issues
Content of Injunction
Preliminary relief granted
Defendant-type
Jurisdiction-wide
Immigration/Border
Deportation - criteria
Deportation - procedure
Plaintiff Type
State Plaintiff
Causes of Action Administrative Procedure Act, 5 U.S.C. §§ 551 et seq.
Declaratory Judgment Act, 28 U.S.C. § 2201
Defendant(s) Acting Director of U.S. Immigration and Customs Enforcement
Acting Secretary of the United States Department of Homeland Security
Commissioner of U.S. Customs and Border Protection
Director of the U.S. Citizenship and Immigration Services
U.S. Citizenship and Immigration Services
U.S. Customs and Border Protection
U.S. Immigration and Customs Enforcement (def)
United States
United States Department of Homeland Security
Plaintiff Description State of Texas
Indexed Lawyer Organizations ACLU Affiliates (any)
ACLU Immigrants' Rights Project
ACLU National (all projects)
Class action status sought No
Class action status outcome Not sought
Filed Pro Se No
Prevailing Party None Yet / None
Public Int. Lawyer Yes
Nature of Relief Preliminary injunction / Temp. restraining order
Source of Relief None yet
Filed 01/22/2021
Case Ongoing Yes
Additional Resources
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  See this case at CourtListener.com (May provide additional documents and, for active cases, real-time alerts)
Court Docket(s)
S.D. Tex.
02/09/2021
6:21-cv-00003
IM-TX-0057-9000.pdf | Detail
Source: PACER [Public Access to Court Electronic Records]
General Documents
S.D. Tex.
01/22/2021
Complaint [ECF# 1]
IM-TX-0057-0001.pdf | Detail
Source: PACER [Public Access to Court Electronic Records]
S.D. Tex.
01/22/2021
Exhibit A: Agreement Between Department of Homeland Security and the State of Texas [ECF# 1-1]
IM-TX-0057-0002.pdf | Detail
Source: PACER [Public Access to Court Electronic Records]
S.D. Tex.
01/22/2021
Exhibit B: Review of and Interim Revision to Civil Immigration Enforcement and Removal Policies and Priorities [Memorandum] [ECF# 1-2]
IM-TX-0057-0003.pdf | Detail
Source: PACER [Public Access to Court Electronic Records]
S.D. Tex.
01/22/2021
Exhibit C: Re: DHS’s Unlawful “Pause on Removals” [ECF# 1-3]
IM-TX-0057-0004.pdf | Detail
Source: PACER [Public Access to Court Electronic Records]
S.D. Tex.
01/22/2021
Amicus Brief in Support of Defendants [ECF# 13]
IM-TX-0057-0007.pdf | Detail
Source: PACER [Public Access to Court Electronic Records]
S.D. Tex.
01/24/2021
Advisory Regarding Court's Question [ECF# 6]
IM-TX-0057-0005.pdf | Detail
Source: PACER [Public Access to Court Electronic Records]
S.D. Tex.
01/25/2021
Defendants' Response to Plaintiff's Advisory [ECF# 9]
IM-TX-0057-0006.pdf | Detail
Source: PACER [Public Access to Court Electronic Records]
S.D. Tex.
01/25/2021
Notice [ECF# 14 & 14-1]
IM-TX-0057-0008.pdf | Detail
Source: PACER [Public Access to Court Electronic Records]
S.D. Tex.
01/26/2021
Order Granting Plaintiff's Emergency Application for a Temporary Restraining Order [ECF# 16] (515 F.Supp.3d 627)
IM-TX-0057-0009.pdf | WESTLAW| LEXIS | Detail
Source: PACER [Public Access to Court Electronic Records]
S.D. Tex.
02/03/2021
Notice [ECF# 59. 59-1]
IM-TX-0057-0010.pdf | Detail
Source: PACER [Public Access to Court Electronic Records]
S.D. Tex.
02/05/2021
Texas's Motion for Preliminary Injunction [ECF# 62]
IM-TX-0057-0011.pdf | Detail
Source: PACER [Public Access to Court Electronic Records]
S.D. Tex.
02/06/2021
Order [ECF# 65] (2021 WL 411441)
IM-TX-0057-0012.pdf | WESTLAW | Detail
Source: PACER [Public Access to Court Electronic Records]
S.D. Tex.
02/08/2021
Order Extending Temporary Restraining Order [ECF# 67]
IM-TX-0057-0013.pdf | Detail
Source: PACER [Public Access to Court Electronic Records]
show all people docs
Judges Tipton, Drew Barnett (S.D. Tex.) show/hide docs
IM-TX-0057-0009 | IM-TX-0057-0012 | IM-TX-0057-0013 | IM-TX-0057-9000
Plaintiff's Lawyers Disher, Todd Lawrence (Texas) show/hide docs
IM-TX-0057-0011 | IM-TX-0057-9000
Paxton, Ken (Texas) show/hide docs
IM-TX-0057-0001 | IM-TX-0057-0002 | IM-TX-0057-0004 | IM-TX-0057-0005 | IM-TX-0057-0011
Sweeten, Patrick Kinney (Texas) show/hide docs
IM-TX-0057-0001 | IM-TX-0057-0005 | IM-TX-0057-0011 | IM-TX-0057-9000
Thompson, William Thomas (Texas) show/hide docs
IM-TX-0057-0001 | IM-TX-0057-0005 | IM-TX-0057-0011 | IM-TX-0057-9000
Walters, Ryan Daniel (Texas) show/hide docs
IM-TX-0057-0011 | IM-TX-0057-9000
Webster, Brent (Texas) show/hide docs
IM-TX-0057-0001 | IM-TX-0057-0005 | IM-TX-0057-0011
Defendant's Lawyers Bowen, Brigham J. (District of Columbia) show/hide docs
IM-TX-0057-0006 | IM-TX-0057-0008 | IM-TX-0057-0010
Boynton, Brian M (District of Columbia) show/hide docs
IM-TX-0057-0006 | IM-TX-0057-0008 | IM-TX-0057-0010
Cuccinelli, Kenneth T. II (Virginia) show/hide docs
IM-TX-0057-0002
Flentje, August E. (District of Columbia) show/hide docs
IM-TX-0057-0006 | IM-TX-0057-0008 | IM-TX-0057-0010
Hu, Daniel David (Texas) show/hide docs
IM-TX-0057-0006 | IM-TX-0057-0008 | IM-TX-0057-0010 | IM-TX-0057-9000
Kirschner, Adam D. (District of Columbia) show/hide docs
IM-TX-0057-0006 | IM-TX-0057-0008 | IM-TX-0057-0010 | IM-TX-0057-9000
Knapp, Michael Fraser (District of Columbia) show/hide docs
IM-TX-0057-0010 | IM-TX-0057-9000
Rosen-Shaud, Brian C (District of Columbia) show/hide docs
IM-TX-0057-0006 | IM-TX-0057-0008 | IM-TX-0057-0010 | IM-TX-0057-9000
Other Lawyers Amdur, Spencer E. W. (California) show/hide docs
IM-TX-0057-0007 | IM-TX-0057-9000
Fajana, Morenike (New York) show/hide docs
IM-TX-0057-9000
Huddleston, Kathryn (Texas) show/hide docs
IM-TX-0057-0007 | IM-TX-0057-9000
Jadwat, Omar C. (New York) show/hide docs
IM-TX-0057-0007
Joseph, Lawrence J (District of Columbia) show/hide docs
IM-TX-0057-9000
Segura, Andre (Texas) show/hide docs
IM-TX-0057-0007 | IM-TX-0057-9000
Tan, Michael K. T. (New York) show/hide docs
IM-TX-0057-0007 | IM-TX-0057-9000
Wofsy, Cody H. (California) show/hide docs
IM-TX-0057-0007 | IM-TX-0057-9000
Woodwark, Lorraine Glynis (District of Columbia) show/hide docs
IM-TX-0057-9000
Wu, Steven C. (New York) show/hide docs
IM-TX-0057-9000
Zafar, Noor (New York) show/hide docs
IM-TX-0057-9000
Zimolong, Walter S (Pennsylvania) show/hide docs
IM-TX-0057-9000

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