Last week a federal district court judge in Texas vacated the Sept. 30, 2021, Biden administration memorandum (known as “the Final Memorandum”) that established guidelines for the enforcement of civil immigration law. In a decision dated June 10, 2022, the judge declared the memorandum arbitrary and capricious, contrary to law, and failing to observe the rule making provisions in the Administrative Procedure Act (APA).

But the judge denied a request from the states that brought the suit for a permanent injunction ordering the administration to comply with the Immigration and Nationality Act’s (INA) mandatory statutory detention provisions.

The decision isn’t about migrants in general, or even migrants who are in the United States illegally: It’s about whether the administration should have complied with the APA’s rulemaking requirements instead of just issuing a memorandum, and whether the guidelines violate the mandatory detention provisions in INA sections 1226(c)and 1231(a)(2).

The guidelines

The “Final Memorandum” restricts enforcement actions to migrants who pose a threat to national security, public safety, or border security. It includes extensive, continuous training to ensure that immigration enforcement officers know the guidelines, and it requires the collection of data on their enforcement actions to confirm that they are following them.

The judge found that the guidelines leave out significant deportation grounds, such as migrants convicted of crimes of moral turpitude, drug offenses, multiple offenses with an aggregate sentence of confinement of five years or more, and certain firearms offenses.

They also leave out migrants who are traffickers of controlled substances, who participate in the commercialized sex industry, who served in foreign governments and committed particularly severe violations of religious freedom, who participate in the human trafficking industry, and who engage in money laundering — and migrants subject to final deportation orders.

Court jurisdiction


Nolan Rappaport was detailed to the House Judiciary Committee as an Executive Branch Immigration Law Expert for three years. He subsequently served as an immigration counsel for the Subcommittee on Immigration, Border Security and Claims for four years. Prior to working on the Judiciary Committee, he wrote decisions for the Board of Immigration Appeals for 20 years. Follow him at