Cooley Files Supreme Court Amicus Brief To Preserve Discretion In Immigration Enforcement – General Immigration


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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

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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