Press Release

Cooley Files Supreme Court Amicus Brief to Preserve Discretion in Immigration Enforcement

Filed on behalf of administrative law professors, the brief seeks reversal of the Fifth Circuit’s decision in United States v. Texas striking down federal immigration enforcement priorities
September 29, 2022

Boston – September 29, 2022 – Cooley filed an amicus brief in the US Supreme Court on behalf of several administrative law professors, seeking reversal of the US Court of Appeals for the Fifth Circuit’s decision in United States v. Texas. The ruling under review had struck down the efforts of the Department of Homeland Security (DHS) to set immigration enforcement priorities. Partners Adam Gershenson and Kathleen Hartnett led the Cooley effort.

The case concerns DHS’s 2021 immigration enforcement guidelines set forth in a memo issued by DHS Secretary Alejandro Mayorkas. The guidelines prioritize removal of noncitizens “who pose a threat to national security, public safety, and border security” – as opposed to noncitizens who do not meet those priorities. The Fifth Circuit struck down the guidelines as noncompliant with the Administrative Procedure Act (APA), determining – contrary to decades of past practice – that they were required to undergo notice and comment rulemaking under the APA.

Cooley’s amicus brief argues that the “Fifth Circuit’s ruling, if affirmed, would undermine the goals of the APA, impose steep bureaucratic and procedural costs, and hinder agencies’ ability to respond promptly to pressing issues.” Instead, the brief urges the Supreme Court to “allow agencies to publicly set their enforcement priorities as they have for decades, in accordance with the statutory text and the policies animating the APA.”

Read the full brief

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