This case concerns agency guidance issued by the Secretary of Homeland Security, pursuant to 6 U.S.C. § 202(5), setting as “national immigration enforcement policies and priorities” the apprehension and removal of noncitizens who threaten national security, public safety, and border security. The States of Texas and Louisiana challenged the guidance under the Administrative Procedure Act (APA). The district court issued a final judgment in favor of respondents on their claims that the guidance violates the Immigration and Nationality Act (INA), is arbitrary and capricious, and was unlawfully issued without notice-and-comment rulemaking. Invoking its authority under APA section 706(2) to “hold unlawful and set aside agency action” that is contrary to law, arbitrary and capricious, or issued without procedure required by law, the court vacated the challenged agency guidance. The agency appealed and, later, sought a stay in the Supreme Court, which treated the request for a stay as a petition for certiorari and granted the petition, specifying three questions for review: one as to standing, one as to the merits, and one as to remedy.
Although Public Citizen agrees with the United States that the guidance was lawful and that the district court’s decision should be reversed, it submitted an amicus brief to address the third question posed by the Court: whether § 1252(f)(1) of the INA prevents the entry of an order under section 706(2) of the APA to “hold unlawful and set aside” the agency action at issue in this case. As the brief explains, section 1252(f)(1) would not bar an order holding the agency guidelines unlawful and setting them aside, if those guidelines were unlawful.