District Court Indefinitely Stops Government from Executing a 100-Day Moratorium on Removals

September 15, 2021

In a decision related to Biden’s enforcement priorities memos, the Fifth Circuit granted a stay of the preliminary injunction pending appeal to allow DHS and ICE to rely on the memos, in all respects, except as it pertains to detained individuals subject to mandatory detention or individuals who have been ordered removed. (Texas, et al. v. United States, et al., 9/15/21)

The decision notes that:

  • The district court delayed the effective date of its injunction until August 30 to allow the United States to seek a stay from this court. We granted a temporary administrative stay and heard oral argument. The United States tells us that the “interim” guidance this case considers will be superseded by new guidance expected by the end of this month. Despite the possibility of an imminent expiration date on the memos challenged in this case, we perform our duty to consider the motion before us.
  • We therefore GRANT IN PART and DENY IN PART the motion to stay the preliminary injunction. The injunction will go into effect to the extent it prevents DHS and ICE officials from relying on the memos to refuse to detain aliens described in 1226(c)(1) against whom detainers have been lodged or aliens who fall under section 1231(a)(1)(A) because they have been ordered removed. The injunction is STAYED pending appeal in all other respects including the reporting requirements.

For more analysis on this decision, read the National Immigration Project of the National Lawyers Guild’s explainer, which notes that the decision represents “a significant blow to the efforts of anti-immigrant state governments” to block the Biden administration’s efforts to set guidelines on the exercise of discretion in immigration enforcement and detention.


August 25, 2021

The Fifth Circuit extended the district court’s stay on the preliminary injunction of the Biden immigration enforcement memos indefinitely. (Texas, et al., v. USA, et al., 8/25/21)


August 23, 2021

Judge Drew Tipton of the U.S. District Court for the Southern District of Texas issued a stay, stating that: “As for the actual injunction, the Court grants relief to the extent that it STAYS the applicability of the Preliminary Injunction, (Dkt. No. 79 at 157-58), until Monday, August 30, 2021, at 12:00 p.m. to allow the Defendants time to seek relief at the appellate level.”


August 19, 2021

A federal judge enjoined Biden’s ICE enforcement priorities memos, including the implementation of Section B of the 1/20/21 “Interim Civil Enforcement Guidelines” memorandum as well as two related sections of the 2/18/21 memorandum. (Texas, et al. v. USA, et al., 8/19/21)

The decision states:

For the foregoing reasons, the Court GRANTS the States’ Motion for Preliminary Injunction. (Dkt. No. 18). Therefore, it is hereby ORDERED that:

  1. Defendants and all their respective officers, agents, servants, employees, attorneys, and other persons who are in active concert or participation with them are hereby ENJOINED and RESTRAINED from enforcing and implementing the policies described in:
    1. Section B of the January 20 Memorandum entitled “Interim Civil Enforcement Guidelines.” (Dkt. No. 1-1 at 3–4);
    2. The section entitled “Civil Immigration Enforcement and Removal Priorities” in the February 18 Memorandum. (Dkt. No. 1-2 at 4–6); and the section entitled “Enforcement and Removal Actions: Approval, Coordination, and Data Collection” in the February 18 Memorandum.62 (Dkt. No. 1-2 at 6–8).
  2. This Preliminary Injunction is granted on a nationwide basis and prohibits enforcement and implementation in every place the Government has jurisdiction to enforce and implement the January 20 and February 18 Memoranda.
  3. This Preliminary Injunction shall remain in effect pending a final resolution of the merits of this case or until a further Order from this Court, the United States Court of Appeals for the Fifth Circuit, or the United States Supreme Court.


February 23, 2021

The district court granted Texas’s motion for preliminary injunction, prohibiting the government from enforcing or implementing the 100-day pause of removals as outlined in the January 20, 2021, memorandum.

The order states:

  1. Defendants and all their respective officers, agents, servants, employees, attorneys, and other persons who are in active concert or participation with them are hereby ENJOINED and RESTRAINED from enforcing and implementing the policies described in the January 20 Memorandum in Section C entitled “Immediate 100- Day Pause on Removals.” (Dkt. No. 2-2 at 4–5).
  2. This preliminary injunction is granted on a nationwide basis and prohibits enforcement and implementation of the policies described in the January 20 Memorandum in Section C entitled “Immediate 100-Day Pause on Removals” in every place Defendants have jurisdiction to enforce and implement the January 20 Memorandum.
  3. This preliminary injunction shall remain in effect pending a final resolution of the merits of this case or until a further Order from this Court, the United States Court of Appeals for the Fifth Circuit or the United States Supreme Court

This Order does not prohibit the Government from carrying out or adhering to the January 20 Memorandum’s other sections, entitled “A. Comprehensive Review of Enforcement Policies and Priorities,” “B. Interim Civil Enforcement Guidelines,” or “D. No Private Right Statement.”


February 8, 2021

Granting Texas’s request, the Southern District of Texas, Victoria Division extended the TRO for another 14 days until February 23, 2021.


January 16, 2021

The Southern District of Texas, Victoria Division, issued a Temporary Restraining Order to enjoin the government from executing the 100-day pause on the removal of individuals already subject to a final Order of Removal, as outlined in the DHS memo on January 20, 2021. The government is enjoined from executing this pause for 14 days. (State of Texas v. USA, et al., 1/26/21)

Note: The TRO applies only to the moratorium and does not impact the enforcement priorities set forth in DHS's January 20, 2021, memo.

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Cite as AILA Doc. No. 21012634.

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