Case: 21-10806 Document: 00515986618 Page: 1 Date Filed: 08/19/2021

United States Court of Appeals

for the Fifth Circuit United States Court of Appeals
Fifth Circuit

FILED
August 19, 2021
No. 21-10806
Lyle W. Cayce
Clerk
State of Texas; State of Missouri,

Plaintiffs—Appellees,

versus

Joseph R. Biden, Jr., in his official capacity as

President of the United States of America; United
States of America; Alejandro Mayorkas, Secretary,
U.S. Department of Homeland Security; United States
Department of Homeland Security; Troy Miller,
Acting Commissioner, U.S. Customs and Border
Protection; United States Customs and Border
Protection; Tae D. Johnson, Acting Director, U.S.
Immigration and Customs Enforcement; United States
Immigration and Customs Enforcement; Tracy Renaud,
in her official capacity as Acting Director of the
United States Citizenship and Immigration Services;
United States Citizenship and Immigration Services,

Defendants—Appellants.

Appeal from the United States District Court

for the Northern District of Texas
USDC No. 2:21-cv-67
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No. 21-10806

Before Elrod, Oldham, and Wilson, Circuit Judges.

Per Curiam:
This case concerns the Migrant Protection Protocols (“MPP”)
created by the Secretary of the Department of Homeland Security on
December 20, 2018, and purportedly rescinded by DHS in a memorandum
on June 1, 2021 (“June 1 Memorandum”). 1 After a full bench trial and 53
pages of findings of fact and conclusions of law, the district court concluded
that DHS’s purported rescission of MPP violated, inter alia, the
Administrative Procedure Act (“APA”). DHS seeks a stay pending appeal.
After carefully considering full briefing from the parties, we hold DHS failed
to satisfy the four stay factors. See Nken v. Holder, 556 U.S. 418 (2009). The
motion is denied.
I.
A.
On December 20, 2018, the Trump Administration implemented
MPP in response to an immigration surge at the southern border. D. Ct. Op.
at 7. The statutory authority for MPP is found in 8 U.S.C. § 1225(b)(2)(C),
which authorizes the Government to return certain third-country nationals
arriving in the United States to Mexico or Canada for the duration of their
removal proceedings under 8 U.S.C. § 1229a. Id. at 8. Also on December 20,
2018, the United States obtained Mexico’s agreement to permit entry of
MPP enrollees. Id. The goal of MPP was to ensure that “[c]ertain aliens
attempting to enter the U.S. illegally or without documentation . . . will no
longer be released into the country, where they often fail to file an asylum

1
We refer to the Secretary’s actions as those of “DHS” unless otherwise stated.

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application and/or disappear before an immigration judge can determine the

merits of any claim.” Id. (quotation omitted).
In January 2019, “DHS began implementing MPP, initially in San
Diego, California, then El Paso, Texas, and Calexico, California, and then
nationwide.” Id. (citing AR.155–56, AR.684). In February 2019, U.S.
Immigration and Customs Enforcement issued guidance on MPP to its field
offices, anticipating the expansion of MPP across the border. Id. at 9 (citing
AR.165–70). By December 31, 2020, DHS had enrolled 68,039 aliens in
MPP. Id. at 12 (citing AR.555).
DHS and Texas entered into a Memorandum of Understanding (the
“Agreement”), which the parties finalized on January 8, 2021. Id. at 13
(citing Compl., Ex. B at 8). The Agreement required Texas to provide
information and assist DHS to “perform its border security, legal
immigration, immigration enforcement, and national security missions.” Id.
(quoting Compl., Ex. B at 2). In return, DHS agreed to consult Texas and
consider its views before taking actions that could modify immigration
enforcement. See id. at 13–14 (citing Compl., Ex. B at 2). DHS also agreed to
“‘[p]rovide Texas with 180 days’ written notice . . . of any proposed action’
subject to the consultation requirement,” id. at 14 (quoting Compl., Ex. B at
3), so that Texas would have an opportunity to comment on the proposal.
The Agreement further required DHS to consider Texas’s input “in good
faith” and, if it decided to reject Texas’s input, “provide a detailed written
explanation” of its reasons for doing so. Id. (emphasis omitted) (quoting
Compl., Ex. B at 3).
On Inauguration Day, the Biden Administration announced that it
would suspend further enrollments in MPP. The Acting Secretary of DHS
wrote that “[e]ffective January 21, 2021, the Department will suspend new
enrollments in the Migrant Protection Protocols (MPP), pending further

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review of the program. Aliens who are not already enrolled in MPP should be
processed under other existing legal authorities.” Id. at 15 (quoting AR.581).
On February 2, 2021, DHS sent a letter to Texas purporting to
terminate the Agreement “effective immediately.” Id. at 14. Because it
believed that the letter did not comply with the Agreement’s required
procedures, Texas interpreted the letter “as a notice of intent to terminate”
the Agreement. Id. (citing ECF No. 53 at 21).
On April 13, 2021, Texas and Missouri (the “States”) sued,
challenging the temporary suspension of MPP. Id. at 1 (citing ECF No. 1).
The States alleged that DHS’s January 20 Memorandum violated the APA,
the Immigration and Nationality Act (“INA”), the Constitution, and the
Agreement. See id. at 2 (citing ECF No. 1 at 4; ECF No. 45). On May 14, the
States moved for a preliminary injunction that would enjoin the Government
from enforcing and implementing the January 20 Memorandum. Prelim. Inj.
Mot., ECF No. 30.
On June 1, before briefing on the preliminary injunction had
concluded, DHS issued a new memorandum permanently terminating MPP.
D. Ct. Op. at 2. The district court concluded that the June 1 Memorandum
mooted the States’ complaint, and the court allowed the States to amend
their complaint and file a new preliminary injunction motion. Id. The parties
agreed to consolidate the preliminary injunction hearing with the trial on the
merits pursuant to Federal Rule of Civil Procedure 65(a)(2). Id. at 3.
B.
Following the bench trial, the district court issued a 53-page
memorandum opinion and order, concluding that the States were entitled to
relief on their APA and statutory claims. See D. Ct. Op. at 1. The district
court made many findings of fact that are relevant here. Among other things,
the district court found that MPP had significant benefits before DHS

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purported to rescind it. For example, DHS’s October 2019 Assessment of

MPP concluded that “aliens without meritorious claims—which no longer
constitute[d] a free ticket into the United States—[were] beginning to
voluntarily return home.” D. Ct. Op. at 10. And the court noted that DHS
also found MPP effective in addressing the prior “perverse incentives”
created by allowing “those with non-meritorious claims . . . [to] remain in the
country for lengthy periods of time.” Id. The court found that this caused a
significant decrease in immigration-enforcement encounters along the
southern border. Id. And more directly, the court found that caused a
decrease in “the number of aliens released into the interior of the United
States for the duration of their U.S. removal proceedings.” Id. at 11 (citing
AR.554). These benefits, DHS emphasized, were a “cornerstone” of the
agency’s prior immigration policy. D. Ct. Op. at 12.
The court made specific (and largely uncontested) factual findings
that “[t]he termination of MPP has [increased] and will continue to increase
the number of aliens being released into the United States,” and that this
increase “has [imposed] and will continue to impose harms on Plaintiff States
Texas and Missouri.” Id. at 17. On the basis of its factual findings, the district
court determined that the States had Article III standing, that the court had
jurisdiction to review the agency action, and that the States were within the
zone of interests of the INA. Id. at 21–34. The court then concluded that
DHS’s termination of MPP was unlawful under the APA because the action
was arbitrary and capricious and contrary to the INA. Id. at 34–44. Based on
those conclusions, the district court “permanently enjoined and restrained
[DHS] from implementing or enforcing the June 1 Memorandum” and
ordered DHS “to enforce and implement MPP in good faith until such a time
as it has been lawfully rescinded in compliance with the APA and until such
a time as the federal government has sufficient detention capacity to detain
all aliens subject to mandatory detention under Section 1255 without

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releasing any aliens because of a lack of detention resources.” Id. at 52–53

(emphases omitted).
DHS noticed an appeal. On August 17, 2021, the Government
requested an emergency stay under Federal Rule of Appellate Procedure 8.
The States opposed that request on August 18. On August 19, the
Government filed a reply. The Government requested that we rule the same
day, August 19. In considering the Government’s request, we must consider
four factors: (1) whether the Government makes a strong showing that it is
likely to succeed on the merits; (2) whether the Government will be
irreparably injured in the absence of a stay; (3) whether other interested
parties will be irreparably injured by a stay; and (4) where the public interest
lies. See Nken, 556 U.S. at 426.
II.
We begin with whether the Government has made a strong showing
that it is likely to succeed on the merits. The Government makes two merits
arguments: (A) the case is not justiciable, and (B) DHS’s rescission of MPP
did not violate federal law. The Government is likely wrong on both.
A.
The Government first argues that it is likely to succeed on the merits
because two justiciability doctrines—standing and non-reviewability—
operate as insuperable obstacles to the States’ suit. We consider and reject
each argument in turn.
1.
First, the States’ standing. To establish standing, the States “must
show an injury that is ‘concrete, particularized, and actual or imminent; fairly
traceable to the challenged action; and redressable by a favorable ruling.’”
Texas v. United States, 809 F.3d 134, 150 (5th Cir. 2015) (quoting Clapper v.

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Amnesty Int’l USA, 568 U.S. 398, 409 (2013)). “Only one of the [appellants]
needs to have standing to permit us to consider the [complaint].” 2
Massachusetts v. EPA, 549 U.S. 497, 518 (2007); accord Nat’l Rife Ass’n Am.,
Inc. v. McCraw, 719 F.3d 338, 344 n.3 (5th Cir. 2013). Because the
Government is seeking a stay, we must ask whether it has made a strong
showing that the States lack standing. See Valentine v. Collier, 956 F.3d 797,
801 (5th Cir. 2020).
After a bench trial, we review the district court’s factual
determinations for clear error. See, e.g., Texas, 809 F.3d at 171–72 (reviewing
a factual finding for clear error); Env’t Tex. Citizen Lobby, Inc. v. ExxonMobil
Corp., 968 F.3d 357, 367 (5th Cir. 2020) (“Because this case was tried,
Plaintiffs needed to prove standing by a preponderance of the evidence. A
factual finding that a plaintiff met that burden is reviewed for clear error.”
(citation omitted)). And any argument not raised on appeal (including a
challenge to a district court’s factual finding) is forfeited. See, e.g., United
States v. Edwards, 303 F.3d 606, 647 (5th Cir. 2002) (“Many of the ‘errors’
cited by the defendants are unbriefed. These issues have been [forfeited].”);
cf. Fed. R. App. P. 28(a)(9)(A) (“The appellant’s brief must contain . . .
appellant’s contentions and the reasons for them, with citations to the
authorities and parts of the record on which the appellant relies.”).
We begin with (a) the district court’s uncontested factual findings.
Then we hold that the Government fails to make a strong showing that it is
likely to succeed on appeal because it has not shown that the States lack (b) an
injury-in-fact that is (c) traceable and (d) redressable. Finally, any doubt

2
For this reason, we focus on Texas’s standing. We note, however, that Missouri
brings largely similar arguments with respect to driver’s-license, educational, healthcare,
and other costs.

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about the States’ standing is resolved by (e) the special solicitude guaranteed
to sovereign States in our federal system.
a.
The district court found eight facts central to the standing issue.
These include:
1. The court found that because of MPP’s termination, the Government
has been “forced to release and parole aliens into the United States
because [the Government] simply [does] not have the resources to
detain aliens as mandated by statute.” D. Ct. Op. at 17; see also id. at
18 (finding that Texas’s “border state” status means some of those
aliens have ended up in Texas).
2. The court found that DHS previously acknowledged that “MPP
implementation contributed to decreasing the volume of inadmissible
aliens arriving in the United States on land from Mexico.” Id. at 17
(quotation and alteration omitted).
3. The court found that “the termination of MPP has contributed to the
current border surge.” Id.
4. The court found that “[s]ince MPP’s termination, the number of
enforcement encounters on the southwest border has skyrocketed.”
Id.; see also id. at 18 n.7 (noting “the sworn statement of David
Shahoulian, Assistant Secretary for Border and Immigration Policy at
DHS,” including Shahoulian’s statement that “[b]ased on current
trends, the Department expects that total encounters this fiscal year
are likely to be the highest ever recorded” (emphasis omitted)).
5. The court found that many “aliens present in Texas because of MPP’s
termination would apply for driver’s licenses,” the granting of which
would impose a cost on Texas. Id. at 19.

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6. The court found that “[s]ome school-age child aliens who would have
otherwise been enrolled in MPP are being released or paroled into the
United States,” and that (according to state estimates) Texas will
expend an average of $9,216 per additional student in the 2021 school
year. Id. at 19.
7. The court found that “[s]ome aliens who would have otherwise been
enrolled in MPP are being released or paroled into the United States
and will use state-funded healthcare services or benefits in Texas,”
imposing a cost on the state. D. Ct. Op. at 19–20 (citing AR.555,
AR.587–88).
8. Finally, the court found that “[s]ome aliens who would have
otherwise been enrolled in MPP are being released or paroled into the
United States and [some] will commit crimes in Texas,” imposing
costs on the state’s correctional apparatus. Id. at 20.
The Government does not challenge any of these findings. 3 But even
if it did, we would not find any of them clearly erroneous in the light of the
record as a whole. See, e.g., United States v. Ismoila, 100 F.3d 380, 396 (5th
Cir. 1996) (“[A]s long as the determination is plausible in light of the record
as a whole, clear error does not exist.”).
b.
Texas’s injuries are actual and imminent. As just described, MPP’s
termination has caused an increase in immigration into Texas. And as

3
On one reading of the Government’s brief, it does contest the fifth finding. See
Stay Mot. at 7 (discussing “speculation about an increase in the number of aliens released
and paroled who will seek driver’s licenses” (quotation omitted)). But in any case, neither
our precedent nor the district court’s record allows us to conclude the Government is likely
to show the finding is clearly erroneous. See Texas, 809 F.3d at 156 (making a similar
inference about driver’s license applications).

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discussed at length in Texas v. United States, Texas law requires the issuance
of a license to any qualified person—including noncitizens who “present . . .
documentation issued by the appropriate United States agency that
authorizes the applicant to be in the United States.” 809 F.3d at 155–56
(alteration in original) (quoting Tex. Transp. Code § 521.142(a)); see
also id. (discussing other Texas requirements for a driver’s license). Of
course, unlike in the Deferred Action for Parents of Americans and Lawful
Permanent Residents (“DAPA”) program, the challenged action here does
not ipso facto guarantee that a given alien will satisfy that requirement. Yet the
district court’s uncontested findings of fact likely compel the conclusion that
MPP’s termination has led to an increase in the number of aliens in Texas,
many of whom will apply for driver’s licenses. And the district court found
that Texas incurs a cost every time it inquires into whether an alien satisfies
the requirements for a license—even if the person does not in fact qualify for
a license. D. Ct. Op. at 19 (“Each additional customer seeking a Texas
driver’s license imposes a cost on Texas.”); see also Decl. of Sheri Gipson,
Chief of the Texas Department of Public Safety Driver License Division, ¶ 8
(“DPS estimates that for an additional 10,000 driver[’s] license customers
seeking a limited term license, DPS would incur a biennial cost of
approximately $2,014,870.80.” (emphasis added)). So Texas has shown
imminent injury in this case. See Texas, 809 F.3d at 156 (reaching the same
conclusion on similar facts). Driver’s licenses aside, the district court’s
unchallenged factual findings regarding educational, healthcare, and
correctional costs provide equally strong bases for finding cognizable,
imminent injury.
The Government’s counterargument (limited to the driver’s-license
theory) is that the district court’s analysis was “primarily based on
speculation about an increase in the number of aliens released and paroled
who will seek driver’s licenses.” Stay Mot. at 7 (quotation omitted). But the

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Government has done nothing to show that district court’s findings of fact
about the increased number of aliens were clearly erroneous. And it is
grounded in our precedent. Texas, 809 F.3d at 156 (“[T]here is little doubt
that many [DAPA beneficiaries] would [apply for driver’s licenses] because
driving is a practical necessity in most of the state.”).
c.
Texas’s injury is also traceable to the Government’s termination of
MPP. The district court’s uncontested factual findings establish as much:
MPP’s termination has caused an increase in unlawful immigration into
Texas. Many new immigrants are certain to apply for driver’s licenses—and
evaluating each application will impose costs on Texas. Cf. Texas, 809 F.3d
at 160 (noting that new immigrants—in that case, DAPA recipients—“have
strong incentives to obtain driver’s licenses, and it is hardly speculative that
many would do so if they became eligible.”). Likewise, at least some MPP-
caused immigrants will certainly seek educational and healthcare services
from the state. And the States have incurred and will continue to incur costs
associated with the border crisis, at least part of which the district court found
is traceable to rescinding MPP. The causal chain is easy to see, and the
Government does not meaningfully contest this point. See also Massachusetts
v. EPA, 549 U.S. at 523 (finding traceability where the EPA’s challenged
action may have caused people to drive less fuel-efficient cars, which may in
turn contribute to a prospective rise in sea levels, which may in turn cause
the erosion of Massachusetts’s shoreline).
d.
An injunction would remedy Texas’s injury by requiring
reinstatement of MPP. And with MPP back in place, immigration officers
would once again have discretion to return (some) aliens to Mexico. The
Government gives two arguments that it says undercut redressability. First,

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the Government contends, an injunction would provide no redress because

immigration officers under MPP would have discretion about whether to
return any given immigrant to Mexico. Stay Mot. at 8. This argument ignores
the fact that, during MPP’s operative period, immigration agents did in fact
order over 50,000 aliens back to Mexico from the Texas border. ECF 11 at 2.
The Government offers no basis to conclude that a renewed MPP would have
any different impact.
Second, the Government argues there is no redressability because
aliens cannot be returned to Mexico without Mexico’s consent. Stay Mot. at
8. This argument fails because for at least some aliens, MPP would permit
DHS to simply refuse admission at ports of entry in the first place. See 8
U.S.C. § 1225(b)(2)(C) (allowing the Attorney General to “return [an]
alien” “who is arriving on land (whether or not at a designated port of arrival)
from a foreign territory contiguous to the United States . . . to that territory
pending a” removal proceeding). Further, Mexico issued a statement in 2018
consenting to admit aliens excluded from the United States under MPP—
and nothing in the record suggests Mexico has since retracted that consent.
See AR.153 (Secretaría do Relaciones Exteriores, Position of Mexico on the
Decision of the U.S. Government to Invoke Section 235(b)(2)(C) of its
Immigration and Nationality Act (Dec. 20, 2018)).
e.
To eliminate any doubt as to standing, we emphasize that the States
are entitled to “special solicitude” in the standing analysis. Massachusetts v.
EPA, 549 U.S. at 520; see also Texas, 809 F.3d at 151 (beginning with the
special-solicitude question). Such special solicitude has two requirements:
(1) the State must have a procedural right to challenge the action in question,
and (2) the challenged action must affect one of the State’s quasi-sovereign
interests. Texas, 809 F.3d at 151–52 (citing Massachusetts, 549 U.S. at 516–

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20). In both Massachusetts and Texas, the first prong was satisfied where a
State challenged an agency action as invalid under a statute. 549 U.S. at 516–
17 (Clean Air Act); 809 F.3d at 152–53 (APA). And in both cases, the second
prong was satisfied where a State’s challenge involved an agency’s alleged
failure to protect certain formerly “sovereign prerogatives [that] are now
lodged in the Federal Government.” Massachusetts, 549 U.S. at 520; see
Texas, 809 F.3d at 152–54. Particularly relevant here is Texas, where this
Court held that DAPA, by authorizing the presence of many previously
unlawful aliens in the United States, affected “quasi-sovereign interests by
imposing substantial pressure on them to change their laws, which provide
for issuing driver’s licenses to some aliens and subsidizing those licenses.”
809 F.3d at 153 (quotation omitted).
Texas is indeed entitled to special solicitude. First, just as in the
DAPA suit, Texas is asserting a procedural right under the APA to challenge
an agency action. See id. at 152 (“In enacting the APA, Congress intended for
those ‘suffering legal wrong because of agency action’ to have judicial
recourse, and the states fall well within that definition.” (quoting 5 U.S.C.
§ 702)). And second, Texas asserts precisely the same driver’s-license-based
injury here that it did there. See id. at 153–54 (explaining that DAPA, by
greatly increasing the class of people to whom existing Texas law would
entitle a subsidized driver’s license, pressured Texas to change its own law—
thus affecting a quasi-sovereign interest). Thus, Texas is entitled to special
solicitude in the standing inquiry.
That solicitude means redressability is easier to establish for certain
state litigants than for other litigants—and this should remove any lingering
doubt as to that prong. See Massachusetts, 549 U.S. at 517–18 (holding a State
“can assert [its] right[s] without meeting all the normal standards for
redressability and immediacy” (quotations and citations omitted)). Texas
would be able to establish redressability without this special solicitude—but

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it reinforces our conclusion that the States have standing and that the
Government has failed to make a strong showing to the contrary.
2.
The Government next argues this suit is non-justiciable under the
APA. The Government makes three arguments on this score. None is
persuasive.
a.
First, the Government argues that its termination of MPP is not a
“final agency action” under the APA. The APA allows judicial review for
“final agency action for which there is no other adequate remedy in a court.”
5 U.S.C. § 704. And for an agency action to qualify as final, the action must
(1) mark[] the consummation of the agency’s decisionmaking process,” and
(2) either determine “rights or obligations” or produce “legal
consequences.” Texas v. EEOC, 933 F.3d 433, 441 (quoting Bennett v. Spear,
520 U.S. 154, 177–78 (1997)).
The Government does not contest that the June 1 Memorandum was
the consummation of the decisionmaking process. As for the second prong,
the Government simply asserts the Memorandum is a general policy
statement—and therefore can neither determine rights nor produce
obligations or legal consequences. Stay Mot. at 10–11. This argument ignores
Circuit precedent establishing that a “policy statement” can nonetheless be
“final agency action” under the APA. See Merchs. Fast Motor Lines, Inc. v.
ICC, 5 F.3d 911, 919–20 (5th Cir. 1993). It also ignores the principle that
“where agency action withdraws an entity’s previously-held discretion, that
action alters the legal regime, binds the entity, and thus qualifies as final
agency action” under the APA. EEOC, 933 F.3d at 442 (quotation omitted).
As the district court ably explained, the Memorandum withdrew DHS
officers’ previously existing discretion when it directed “DHS personnel,

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effective immediately, to take all appropriate actions to terminate MPP,

including taking all steps necessary to rescind implementing guidance and
other directives issued to carry out MPP.” D. Ct. Op. at 27 (emphasis
omitted) (quoting AR.7).
b.
Second, the Government argues that the decision to terminate MPP
is unreviewable under 5 U.S.C. § 701(a). Stay Mot. at 8. The APA creates a
“basic presumption of judicial review.” DHS v. Regents of the Univ. of Cal.,
140 S. Ct. 1891, 1905 (2020) (quotation omitted). And to vindicate that
presumption, the Supreme Court has read § 701(a)(2) “quite narrowly.” Id.
(quotation omitted). The presumption can be overcome “by a showing that
the relevant statute precludes review, § 701(a)(1), or that the agency action
is committed to agency discretion by law, § 701(a)(2).” Id. (quotations and
alterations omitted). Here, the Government has tried but failed to make both
showings.
The Government argues that 8 U.S.C. § 1225(b)(2)(C) is a “statute[]
[that] preclude[s] judicial review.” 5 U.S.C. § 701(a)(1). Section
1225(b)(2)(C) provides:
In the case of an alien described in subparagraph (A) who is
arriving on land (whether or not at a designated port of arrival)
from a foreign territory contiguous to the United States, the
Attorney General may return the alien to that territory pending
a proceeding under section 1229a of this title.
That provision does confer the discretion to choose among various detention
and non-detention options for aliens placed in § 1229a removal proceedings.
But the question presented in the States’ complaint is not whether a
particular alien is subject to detention in any particular set of circumstances.
The States are instead challenging DHS’s June 1 decision to rescind MPP—

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which is a government program that creates rules and procedures for entire
classes of aliens. It remains true—with or without MPP—that DHS has
discretion to make individualized detention and non-detention decisions in
accordance with the strictures of § 1225. What DHS cannot do, the States
allege, is rescind the MPP program in a way that is arbitrary, capricious, and
contrary to law. DHS cites nothing to suggest that latter decision is
committed to agency discretion. In fact, cases like Regents prove it is not. See
140 S. Ct. at 1905–06 (decision to rescind DACA not committed to agency
discretion); Texas, 809 F.3d at 168–69 (decision to implement DAPA not
committed to agency discretion).
The Government’s argument that the decision to rescind MPP is
“committed to agency discretion by law” fails for similar reasons. 5 U.S.C.
§ 701(a)(2); see Regents, 140 S. Ct. at 1905. This form of non-reviewability
occurs where a statute is “drawn so that it furnishes no meaningful standard
by which to judge the [agency’s] action.” Dep’t of Commerce v. New York, 139
S. Ct. 2251, 2568 (2019); see also Citizens to Preserve Overton Park, Inc. v.
Volpe, 401 U.S. 402, 410 (1971) (holding a decision is committed to agency
discretion when there is “no law to apply” (quotation omitted)). The
Government argues that § 1225 provides no standard by which to evaluate
DHS’s action in this case. Stay Mot. at 8–9.
Once again, Supreme Court precedent undercuts the Government’s
argument. Even a statute that “leave[s] much to [an agency’s] discretion”
does not necessarily “leave [that] discretion unbounded.” Dep’t of
Commerce, 139 S. Ct. at 2567–68 (holding a statute granting the Secretary of
Commerce broad discretion to take the census “in such form and content as
he may determine” did not commit the decision to reinstate a citizenship
question to the Secretary’s discretion (quotation omitted)). So too here.
Section 1225(b)(2)(C) certainly confers discretion, but there is no reason to
think that discretion is infinite—just as there is no reason to think the

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discretion extends beyond the bounds of individualized, case-by-case

determinations to begin with. And like the statute in Department of Commerce,
which included provisions that meaningfully restrained the Secretary of
Commerce, see 139 S. Ct. at 2568–69, § 1225 includes provisions restraining
the DHS in this case. See § 1225(b)(1)(B)(iii)(IV) (an alien subject to
expedited removal, but without a credible fear of persecution, “shall be
detained pending a final determination of credible fear of persecution”);
§ 1225(b)(1)(B)(ii) (an alien with a credible fear of persecution “shall be
detained for further consideration of the application for asylum”);
§ 1225(b)(1)(B)(iii)(IV) (“Any alien subject to the procedures under this
clause shall be detained pending a final determination of credible fear of
persecution and, if found not to have such a fear, until removed.”);
§ 1225(b)(2)(C) (Attorney General “may return” an alien not subject to
expedited removal as an alternative to detention). We conclude that this is
not a “case in which there is no law to apply.” Dep’t of Commerce, 139 S. Ct.
at 2569 (quotation omitted).
c.
The Government’s final justiciability argument is that the MPP-
termination decision is nothing more than a non-enforcement decision,
unreviewable under Heckler v. Chaney, 470 U.S. 821 (1985). This argument
fails for two reasons. The first is that the termination of MPP is more than a
non-enforcement policy, just like the DACA program at issue in Regents and
the DAPA program at issue in Texas. As the district court explained, the
termination of MPP will necessarily lead to the release and parole of aliens
into the United States. And that will “create affirmative benefits for aliens
such as work authorization.” D. Ct. Op. at 31; see also Texas, 809 F.3d at 167
(“Likewise, to be reviewable agency action, DAPA need not directly confer
public benefits—removing a categorical bar on receipt of those benefits and

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thereby making a class of persons newly eligible for them ‘provides a focus
for judicial review.’” (quoting Chaney, 470 U.S. at 832)).
Second and independently, the termination of MPP was simply not a
non-enforcement decision. MPP was a government program—replete with
rules procedures and dedicated infrastructure. It is precisely because MPP
was a government program—and much more than a non-enforcement
decision—that the Government now claims that it will be difficult to resume
it. See infra Part III. And the Government cites nothing to suggest that the
elimination of a such a program can be dismissed as mere “non-
enforcement.” The Government therefore has failed to make a strong
showing that the States’ claims are non-justiciable.
B.
The Government next argues that it is likely to succeed on appeal
because the June 1 Memorandum accords with federal law. The district court
held otherwise on two independent grounds. First, the district court
determined that the termination of MPP violated the APA because the June
1 Memorandum was arbitrary and capricious. D. Ct. Op. at 34–42. Second,
the district court concluded that in “these particular circumstances,” the
termination violated 8 U.S.C. § 1225. Id. at 42–44 (emphasis removed). We
hold the Government has not come close to showing that it is likely to
succeed in challenging either conclusion, let alone both.
1.
First, the APA. The APA directs courts to “hold unlawful and set
aside agency action[s]” that are “arbitrary, capricious, an abuse of discretion,
or otherwise not in accordance with law.” 5 U.S.C. § 706(2). “The APA’s
arbitrary-and-capricious standard requires that agency action be reasonable
and reasonably explained.” FCC v. Prometheus Radio Project, 141 S. Ct. 1150,
1158 (2021). While applying this “deferential” standard, we must not

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“substitute” our “own policy judgment for that of the agency.” Id. But we
must ensure that “the agency has acted within a zone of reasonableness and,
in particular, has reasonably considered the relevant issues and reasonably
explained the decision.” Id.; see also Motor Vehicle Mfrs. Ass’n of U.S., Inc. v.
State Farm Mut. Auto. Ins. Co., 463 U.S. 29, 43 (1983) (“[T]he agency must
examine the relevant data and articulate a satisfactory explanation for its
action including a ‘rational connection between the facts found and the
choice made’” (quoting Burlington Truck Lines v. United States, 371 U.S. 156,
168 (1962))). “Put simply, we must set aside any action premised on
reasoning that fails to account for ‘relevant factors’ or evinces ‘a clear error
of judgment.’” Univ. of Tex. M.D. Anderson Cancer Ctr. v. HHS, 985 F.3d
472, 475 (5th Cir. 2021) (quoting Marsh v. Or. Nat. Res. Council, 490 U.S.
360, 378 (1989)). This review “is not toothless.” Sw. Elec. Power Co. v. United
States Env’t Prot. Agency, 920 F.3d 999, 1013 (5th Cir. 2019). And in all
events, we can consider only the reasoning “articulated by the agency itself”;
we cannot consider post hoc rationalizations. State Farm, 463 U.S. at 50; see
also Regents, 140 S. Ct. at 1909 (“An agency must defend its actions based on
the reasons it gave when it acted.”).
The Government has not shown a strong chance of success on appeal.
That is because when terminating MPP in the June 1 Memorandum, the
Secretary failed to consider several “relevant factors” and “‘important
aspect[s] of the problem.’” Michigan v. E.P.A., 576 U.S. 743, 750, 752 (2015)
(quotations omitted); see also Regents, 140 S. Ct. at 1910. These include (a)
the States’ legitimate reliance interests, (b) MPP’s benefits, (c) potential
alternatives to MPP, and (d) § 1225’s implications. These four omissions
likely doom the Government’s appeal. The Governments counterarguments
(e) are unpersuasive.

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a.
DHS “failed to address whether there was ‘legitimate reliance’ on”
MPP. Regents, 140 S. Ct. at 1913 (quoting Smiley v. Citibank (S.D.), N.A., 517
U.S. 735, 742 (1996)). In its seven-page June 1 Memorandum, DHS does not
directly mention any reliance interests, especially those of the States. The
closest the June 1 Memorandum gets is a reference to “the impact
[terminating MPP] could have on border management and border
communities.” AR5. But the Memorandum makes clear that “border
communities” do not include border states. See id. (“referring only to
“nongovernmental organizations and local officials”). And the vague
reference to “border management” is insufficient to show specific,
meaningful consideration of the States’ reliance interests.
In response, the Government concedes that it failed to consider the
States’ reliance interests. But it argues that is irrelevant because “the States
have no cognizable reliance interest in a discretionary program.” Stay Mot. at
18. We reject that argument for several reasons.
Most importantly, the Government’s contention is squarely
foreclosed by Regents. There, the Supreme Court acknowledged that the
Deferred Action for Childhood Arrivals (“DACA”) program was a
discretionary program. 140 S. Ct. at 1910. Still, the Court faulted DHS for
not considering reliance interests, including in particular those of the states.
As the Supreme Court explained, “[w]hen an agency changes course, . . . it
must be cognizant that longstanding policies may have engendered serious
reliance interests that must be taken into account.” Id. at 1913 (quotation
omitted). Those reliance interests included states’ interests. See id. at 1914
(highlighting assertions that “[s]tates and local governments could lose $1.25
billion in tax revenue each year”). So if the termination of DACA—a
discretionary, immigration program—must consider states’ “potential

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reliance interests,” then so does termination of MPP. Id. at 1913. That is

particularly true here because the district court found as a matter of fact—
and the Government does not contest—that states like Texas face fiscal harm
from the termination of MPP. See D. Ct. Op. at 18–20.
The district court also found that the “termination of MPP has and
will continue to increase the number of aliens being released into the United
States.” Id. at 17. The Supreme Court has recognized that border states
“bear[] many of the consequences of unlawful immigration.” Arizona v.
United States, 567 U.S. 387, 397 (2012). It therefore follows that a “potential
reliance interest” that DHS must consider includes Texas.
The DHS-Texas Agreement reinforces the Government’s awareness
of the State’s reliance interests. In that Agreement, DHS stipulated:

• “Texas, like other States, is directly and concretely affected by

changes to DHS rules and policies that have the effect of easing,
relaxing, or limiting immigration enforcement.” Compl., Ex. B at 1.

• “The harm to Texas is particularly acute where its budget has been
set months or years in advance and it has no time to adjust its budget
to respond to DHS policy changes.” Id.

• “[A]n aggrieved party will be irreparably damaged.” Id. at 5.

The Agreement further states that it “establishes a binding and enforceable

commitment between DHS and Texas.” Id. at 2. Texas therefore could
reasonably rely on the Agreement. And Texas did in fact rely on the
Agreement by including DHS’s breach as a cause of action in its complaint—
filed months before the June 1 Memorandum. And then—despite these
reliance interests and despite being on notice of the Agreement from the
States’ complaint—the June 1 Memorandum said not one word about the
Agreement. A “reasonable and reasonably explained” decision would have

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said something. Prometheus, 141 S. Ct. at 1158. That is why this “omission
alone [likely] renders [the Secretary’s] decision arbitrary and capricious.”
Regents, 140 S. Ct. at 1913. 4
b.
The June 1 Memorandum also failed to consider DHS’s prior factual
findings on MPP’s benefits. In its October 2019 Assessment of MPP, DHS
found that “aliens without meritorious claims—which no longer
constitute[d] a free ticket into the United States—[were] beginning to
voluntarily return home.” D. Ct. Op. at 10. DHS also found that MPP
addressed the “perverse incentives” created by allowing “those with non-
meritorious claims . . . [to] remain in the country for lengthy periods of
time.” Id. These benefits, DHS emphasized, were a “core component” or
“cornerstone” of the agency’s prior immigration policy. Id. at 12.
Nonetheless, the June 1 Memorandum did not expressly mention, let
alone meaningfully discuss, DHS’s prior factual findings. Instead, the
Secretary changed policies based on his own findings that contradict DHS’s
October 2019 findings. But an agency must provide “a more detailed
justification” when a “new policy rests upon factual findings that contradict
those which underlay its prior policy.” FCC v. Fox Television Stations, Inc.,

4
As the D.C. Circuit has emphasized in a different APA context, “the opportunity
to comment is meaningless unless the agency responds to significant points raised by the
public.” Sherley v. Sebelius, 689 F.3d 776, 784 (D.C. Cir. 2012) (Sentelle, C.J.) (quotation
omitted). We do not suggest that DHS needed notice-and-comment rulemaking to rescind
MPP. But it did need to consider “relevant factors” to that rescission decision. Id. And you
might reasonably think that one “relevant factor[]” to that decision was DHS’s pledge “to
consult Texas and consider its views before taking any action, adopting or modify[ing] a
policy or procedure, or making any decision that” affects MPP. Compl., Ex. B at 2. Perhaps
DHS has a good reason for its action. But it is likely arbitrary and capricious for DHS not
even to acknowledge its agreement—let alone do anything to consult Texas or consider its
views.

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556 U.S. 502, 515 (2009). The Secretary did not provide the required “more
detailed justification.” Id. This further indicates that the termination of MPP
was arbitrary and capricious.
c.
The June 1 Memorandum also insufficiently addressed alternatives to
terminating MPP. “[W]hen an agency rescinds a prior policy[,] its reasoned
analysis must consider the alternatives that are within the ambit of the
existing policy.” Regents, 140 S. Ct. at 1913 (quotation omitted). While
considering alternatives, DHS “was required to assess whether there were
reliance interests, determine whether they were significant, and weigh any
such interests against competing policy concerns.” Id. at 1915. As explained
above, DHS did not adequately assess reliance interests. So it would be
impossible for the June 1 Memorandum to properly weigh the relevant
interests against competing policy concerns while considering alternatives.
The June 1 Memorandum offers a single conclusory sentence
addressing potential modifications to MPP: “I also considered whether the
program could be modified in some fashion, but I believe that addressing the
deficiencies identified in my review would require a total redesign that would
involve significant additional investments in personnel and resources.”
AR.5. But “belief” that a “total redesign” was required, id., is no substitute
for a “reasonable and reasonably explained” decision. Prometheus, 141 S. Ct.
at 1158.
Of course, “DHS was not required . . . to consider all policy
alternatives in reaching [its] decision,” and the agency has “considerable
flexibility” to “wind-down” a program. Regents, 140 S. Ct. at 1914 (emphasis
added) (quotation omitted). But the problem is that the Secretary failed to
mention any modification to MPP as a possible alternative, even though “the
alternatives . . . are within the ambit of the existing policy.” Id. at 1913

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(quotations omitted). And merely stating that an alternative was considered

is not enough to show reasoned analysis. Cf. United Techs. Corp. v. U.S. Dep’t
of Def., 601 F.3d 557, 562 (D.C. Cir. 2010) (“We do not defer to the agency’s
conclusory or unsupported suppositions.” (quotation omitted)).
The Government’s principal counterargument is that DHS
considered an alternative outside “the ambit of the existing policy.” Regents,
140 S. Ct. at 1913. Specifically, the June 1 Memorandum pointed to a
“Dedicated Docket” program designed to provide counsel to aliens in
removal proceedings. AR.4–5 & n.6; see Stay Mot. at 16; Reply at 7. This
argument is unpersuasive for at least two reasons. First, by the Government’s
own admission, the “Dedicated Docket” is outside the ambit of MPP—and
hence it does not count as a reasoned consideration of alternatives “within
the ambit of the existing policy.” Regents, 140 S. Ct. at 1913 (emphasis
added). And second, neither the June 1 Memorandum nor the Government
in its stay motion explains why MPP and the “Dedicated Docket” are
mutually exclusive.
d.
The June 1 Memorandum also failed to consider the legal implications
of terminating the policy. After the Government suspended MPP—but
before it rescinded the program—Texas filed this lawsuit. In its original
complaint, and in its initial motion for preliminary injunction, Texas argued
that the suspension of MPP violated § 1225. See Compl. at 36–38; Prelim. Inj.
Mot., ECF No. 30. About a month and a half later, the Secretary issued the
memorandum terminating MPP. So the government was on notice of the
legal implications. Yet in the memorandum, the Secretary does not mention
the lawfulness concerns involving § 1225—even though, the “natural
response” to this “newly identified problem” would be to consider the
problem. Regents, 140 S. Ct. at 1916. This further indicates that “the process

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by which” the Secretary reached that result was neither “logical” nor
“rational.” Michigan, 576 U.S. at 750.
e.
The Government offers a hodgepodge of counterarguments to justify
the June 1 Memorandum’s omissions. None is persuasive.
The Government repeatedly argues that DHS’s statement that it
considered this or that factor is enough to avoid any arbitrary-and-capricious
problems. See Stay Mot. at 16. The law says otherwise. “Stating that a factor
was considered . . . is not a substitute for considering it.” Getty v. Fed. Sav. &
Loan Ins. Corp., 805 F.2d 1050, 1055 (D.C. Cir. 1986); see also Corrosion Proof
Fittings v. E.P.A., 947 F.2d 1201, 1226 (5th Cir. 1991) (“The EPA’s failure to
consider the regulatory alternatives, however, cannot be substantiated by
conclusory statements . . . .”); United Techs., 601 F.3d at 562 (“We do not
defer to the agency’s conclusory or unsupported suppositions.” (quotation
omitted)); cf. Gerber v. Norton, 294 F.3d 173, 185 (D.C. Cir. 2002) (“And
stating that a factor was considered—or found—is not a substitute for
considering or finding it.” (quotation omitted)); Gresham v. Azar, 950 F.3d
93, 103 (D.C. Cir. 2020) (“Nodding to concerns raised by commenters only
to dismiss them in a conclusory manner is not a hallmark of reasoned
decisionmaking.”). This well-established principle makes sense. After all:
[A]n agency’s “experience and expertise” presumably enable
the agency to provide the required explanation, but they do not
substitute for the explanation, any more than an expert
witness’s credentials substitute for the substantive
requirements applicable to the expert’s testimony under Fed.
R. Evid. 702. The requirement of explanation presumes the
expertise and experience of the agency and still demands an
adequate explanation in the particular matter.

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CS Wind Viet. Co. v. United States, 832 F.3d 1367, 1377 (Fed. Cir. 2016)
(citations omitted).
The Government also points to the June 1 Memorandum’s
observations on MPP’s shortcomings. See Stay Mot. at 16–17. Even if
creditable, these observations cannot justify the other omissions discussed
above. But in any event, many of those observations are neither “logical” nor
“rational.” Michigan, 576 U.S. at 750. Take DHS’s termination justification
based on in absentia removal orders. DHS observed that “the high percentage
of cases completed through the entry of in absentia removal orders
(approximately 44 percent, based on DHS data) raises questions for me about
the design and operation of the program.” AR.4 (emphasis added). The
district court found that “[t]he federal government’s data shows similarly
high rates of in absentia removals prior to implementation of MPP.” D. Ct.
Op. at 40. The Government has not said one word to suggest the district
court’s factual finding was clearly erroneous. 5 We therefore cannot conclude
that the Secretary “examine[d] the relevant data and articulate[d] a
satisfactory explanation” with “a rational connection between the facts
found and the choice” to terminate MPP. State Farm, 463 U.S. at 43
(quotation omitted). And even on the Government’s own terms—
considering only half the statistics and ignoring the district court’s factual
finding—the June 1 Memorandum only said that in absentia statistics
“raise[d] questions for [DHS] about the design and operation of the

5
In its reply brief, the Government argues that it need not have commissioned an
“in-depth empirical analysis” of the in absentia statistics before rescinding MPP. Reply at
9. Of course that is true. But it is equally true that the Government cannot cherry-pick only
the statistics it likes in the administrative record. Nor can the Government fail to address
statistics that already exist in that record. See Encino Motorcars, LLC v. Navarro, 136 S. Ct.
2117, 2126 (2016) (holding “an unexplained inconsistency in agency policy is a reason for
holding an interpretation to be an arbitrary and capricious change from agency practice”
(quotation omitted)).

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program.” AR.4. But the process required by the APA requires agencies to
seek answers and reasonably explain the outcome of that effort, including its
conclusions.
The June 1 Memorandum places much weight on COVID-19.
According to the Memorandum, the pandemic “compounded” “challenges
faced by MPP” when “immigration courts designated to hear MPP cases
were closed for public health reasons between March 2020 and April 2021.”
AR.4. But DHS issued its memorandum terminating MPP at least one month
after courts reopened. As the district court explained: “Past problems with
past closures are irrelevant to the decision to prospectively terminate MPP in
June 2021. This is especially true when the Secretary admits DHS had
maintained the facilities during the pandemic.” D. Ct. Op. at 41. The
Government challenges this conclusion on the ground that “infrastructure
used for MPP remains shuttered.” Stay Mot. at 19 n.4. But the Government
provides no indication that the facilities are not maintained or are shuttered
because of the pandemic—as opposed to the choice the Government itself
made when it suspended MPP in January 2021.
2.
In addition to the APA, the district court also relied on 8 U.S.C.
§ 1225. The Government claims that the district court determined that “the
Secretary is required to return any noncitizen he fails to detain” and that the
district court’s “core legal analysis” is that DHS has “a binary choice
between detention or return to Mexico for noncitizens arriving from
Mexico.” Stay Mot. at 11–13. In essence, the Government characterizes the
district court’s decision and injunction as removing the Government’s ability
to use its discretion under 8 U.S.C. §§ 1182(d)(5)(A) and 1226. But as we
explain in Part III, infra, the Government has mischaracterized the district

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court’s order. This matters because all of the Government’s § 1225

arguments hinge on an incorrect premise.
Therefore, we cannot conclude that the Government is likely to
succeed on either its APA arguments or its § 1225 arguments—let alone that
the Government is likely to succeed on both. The Government therefore has
not come close to a “strong showing” that it is likely to succeed on the merits.
Nken, 556 U.S. at 426.
III.
The Government also has not shown that it will be irreparably injured
absent a stay pending appeal. The Government’s arguments are largely built
on two strawmen. We consider and reject those before turning to the
Government’s other arguments.
First, the Government complains that it will be irreparably harmed
absent a stay because DHS is incapable of reinstating MPP “in a matter of
days.” Stay Mot. at 21; see also Decl. of David Shahoulian ¶ 16 (Aug. 16, 2021)
(arguing DHS cannot immediately “reestablish the entire infrastructure
upon which [MPP] was built”). This is a strawman. The district court did
not order the Government to restore MPP’s infrastructure overnight. It
ordered that, once the injunction takes effect on August 21, DHS must
“enforce and implement MPP in good faith.” D. Ct. Op. at 52. DHS does not
argue that good faith is an unreasonably high standard to meet.
Second, the Government asserts it will be irreparably injured because
the injunction obligates DHS to detain “every single person described in 8
U.S.C. § 1225,” which DHS cannot do because it lacks “sufficient detention
capacity.” Decl. of David Shahoulian ¶ 5 (Aug. 16, 2021). This is a second
strawman. The injunction does not require the Government to detain every
alien subject to § 1225. Nor does it order the Government to “build or
obtain” additional detention facilities. Stay Mot. at 21. Instead, it requires

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the Government to “enforce and implement MPP in good faith . . . until such
a time as the federal government has sufficient detention capacity to detain
all aliens subject to mandatory detention.” D. Ct. Op. at 52 (second emphasis
added).
And far from ordering the Government to detain “every single person
described in 8 U.S.C. § 1225,” Decl. of David Shahoulian ¶ 5 (Aug. 16,
2021), the district court specifically acknowledged that the Government has
other options. Under § 1225(b)(2)(A), which provides the statutory
authority for MPP, an alien arriving on land from a contiguous foreign
territory can be returned to that territory. See D. Ct. Op. at 43 & n.11 (noting
this discretion). Under 8 U.S.C. § 1182(d)(5)(A), DHS can parole an alien
into the United States “on a case-by-case basis for urgent humanitarian
reasons or significant public benefit.” (Emphasis added); see D. Ct. Op. at 43
& n.11 (noting this discretion). Under 8 U.S.C. § 1226, DHS can release on
“bond” or “conditional parole” an alien arrested on a warrant and detained
“pending a decision on whether the alien is to be removed.” See also Stay
Mot. at 12; D. Ct. Op. at 51 (noting this discretion). Last but not least, of
course, the Government can choose to detain an alien in accordance with §
1225. See D. Ct. Op. at 43 (noting this discretion).
What the Government cannot do, the district court held, is simply
release every alien described in § 1225 en masse into the United States. The
Government has not pointed to a single word anywhere in the INA that
suggests it can do that. And the Government cannot claim an irreparable
injury from being enjoined against an action that it has no statutory
authorization to take.
Third and finally, we turn to the Government’s non-strawmen
arguments for its irreparable injuries. Most of these are self-inflicted and
therefore do not count. See 11A Charles Alan Wright, et al.,

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Federal Practice and Procedure § 2948.1 (2021) (“[A] party may

not satisfy the irreparable harm requirement if the harm complained of is self-
inflicted”). For example, the Government notes that “DHS has been in the
process of unwinding MPP and its infrastructure for months,” such that
restarting the program now would be difficult. Stay Mot. at 21. But as the
district court noted, “Texas filed suit challenging the suspension of
enrollments in MPP . . . nearly two months before DHS purported to
terminate the program entirely in the June 1 Memorandum.” D. Ct. Op. at
47. Therefore, DHS could have avoided this problem by waiting to unwind
MPP until this litigation was resolved. The self-inflicted nature of the
government’s asserted harm “‘severely undermines’ its claim for equitable
relief.” Al Otro Lado v. Wolf, 952 F.3d 999, 1008 (9th Cir. 2020) (quoting
Hirschfeld v. Bd. of Elections in City of N.Y., 984 F.2d 35, 39 (2d Cir. 1993));
accord Second City Music, Inc. v. City of Chicago, 333 F.3d 846, 850 (7th Cir.
2003) (“[S]elf-inflicted wounds are not irreparable injury.”); Caplan v.
Fellheimer Eichen Braverman & Kaskey, 68 F.3d 828, 839 (3d Cir. 1995) (“If
the harm complained of is self-inflicted, it does not qualify as irreparable.”).
Before the district court, the Government also suggested that it began
unwinding MPP four or more months before the June 1 Memorandum. See D.
Ct. Op. at 48. That understandably would make it harder for DHS to restart
MPP on Saturday. But it also makes DHS’s legal position dramatically
weaker. It is a fundamental precept of administrative law that an
administrative agency cannot make its decision first and explain it later. See,
e.g., Regents, 140 S. Ct. at 1908–10. Insofar as DHS concedes that its June 1
Memorandum is a post hoc rationalization for a decision that it made many
months earlier, it has conceded that the June 1 Memorandum is arbitrary,
capricious, and not a good faith explanation for its decision. Such inequitable
conduct is “sufficient to deny” DHS’s request for an equitable stay pending

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appeal. See In re GGW Brands, LLC, No. 2:13-bk-15130, 2013 WL 6906375,

at *26–*27 (Bankr. C.D. Cal. Nov. 15, 2013).
The Government also asserts that reinstating MPP will cause harm
because “DHS cannot restart MPP without significant cooperation with
Mexico,” and the injunction implicates “delicate and ongoing discussions
with Mexico.” Stay Mot. at 21. There are at least four problems with that.
First, as the district court noted, DHS created MPP unilaterally and without
any previous agreement with Mexico. See D. Ct. Op. at 49 & n.15. DHS does
not explain why it cannot likewise restart MPP unilaterally. Second, the
Government does not point to any evidence that Mexico has withdrawn its
support for MPP. See AR.152–53 (Mexico’s December 20, 2018 statement of
support). Third, the Government “‘could have avoided’ any disruptions by
simply informing Mexico that termination of MPP would be subject to
judicial review.” D. Ct. Op. at 47 (quoting Texas, 809 F.3d at 187). Insofar as
the Government failed to do that, again, its injury is self-inflicted. Fourth,
even assuming Mexico’s support is required, assuming Mexico has
withdrawn its support, and assuming Mexico will not support a new MPP,
the injunction still does not irreparably harm the Government. The
injunction only requires good faith on the part of the United States—if the
Government’s good-faith efforts to implement MPP are thwarted by Mexico,
it nonetheless will be in compliance with the district court’s order, so long as
it also adheres to the rest of the statutory requirements.
Finally, because the Government has requested a stay pending
completion of appellate proceedings, the relevant question is whether the
Government will be irreparably harmed during the pendency of the appeal. Even
if the Government were correct that long-term compliance with the district
court’s injunction would cause irreparable harm, it presents no reason to
think that it cannot comply with the district court’s requirement of good faith

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while the appeal proceeds. Therefore, the Government has failed to

demonstrate that it will be irreparably injured absent a stay pending appeal.
IV.
The final two Nken factors also do not warrant a stay. See Nken, 556
U.S. at 434.
The district court concluded that the States have suffered, and will
continue to suffer, harms as a result of the termination of MPP. See D. Ct.
Op. at 17 (“The termination of MPP has [increased] and will continue to
increase the number of aliens being released into the United States and has
[imposed] and will continue to impose harms on Plaintiff States Texas and
Missouri.”). We agree. See supra Part II.A.1 (standing). A stay “would
enable” aliens released into the interior “to apply for driver’s licenses and
other benefits, and it would be difficult for the states to retract those benefits
or recoup their costs even if they won on the merits.” Texas, 787 F.3d at 768.
Likewise, the “public interest [is] in having governmental agencies
abide by the federal laws that govern their existence and operations.”
Washington v. Reno, 35 F.3d 1093, 1102 (6th Cir. 1994). Here, the
Government has failed to carry its burden to show that its conduct comports
with federal law. And “[t]here is generally no public interest in the
perpetuation of unlawful agency action.” League of Women Voters of U.S. v.
Newby, 838 F.3d 1, 12 (D.C. Cir. 2016).
The Government is also wrong to say that a stay would promote the
public interest by preserving the separation of powers. All the district court’s
injunction requires of the Government is that it act in accordance with the
INA. And in all events, “it is the resolution of the case on the merits, not
whether the injunction is stayed pending appeal, that will affect” principles
of “separation of powers and federalism.” Texas, 787 F.3d at 768.

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The DHS-Texas Agreement also suggests the public interest counsels

against issuing a stay. That Agreement expressly acknowledged that if DHS
failed to comply with the Agreement’s terms, Texas would “be irreparably
damaged” and would “not have an adequate remedy at law.” Compl., Ex. B
at 4. The Agreement remained binding until August 1, 2021, and the parties
agree DHS violated its terms. See D. Ct. Op. at 14 (“The parties agree DHS
did not follow the[] procedures” required by the Agreement.). The district
court concluded that the expiration of the Agreement mooted Texas’s claim
under it. See id. at 44. As noted in Part II above, however, the States’
likelihood of success on the merits of their APA claims means that DHS will
have to consider all relevant factors before attempting to rescind MPP—
including its effects on the States. The public interest plainly lies in not
allowing DHS to circumvent those federalism concerns.
V.
Finally, the Government argues a stay is warranted because the
district court should have remanded without vacating the June 1
Memorandum or issuing an injunction. Stay Mot. at 22; see also Reply at 12.
“Remand, not vacatur, is generally appropriate when there is at least a
serious possibility that the agency will be able to substantiate its decision
given an opportunity to do so.” Texas Ass’n of Manufacturers v. United States
Consumer Prod. Safety Comm’n, 989 F.3d 368, 389 (5th Cir. 2021). But it is
unclear how DHS can substantiate its decision on remand. Neither in its
opening stay motion nor in its reply does the Government suggest how it can.
See generally Stay Mot. at 22–23; Reply at 12. And Supreme Court precedent
suggests that any later memorandum on remand elaborating on the June 1
Memorandum would be irrelevant to an arbitrary-and-capricious analysis
because it is a post hoc rationalization. See Regents, 140 S. Ct. at 1907–09. So
at this stage, without any argument whatsoever to the contrary, it appears
that DHS would have to issue “a new rule implementing a new policy” that

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“compl[ies] with the procedural requirements for new agency action.” Id. at
1908 (emphases added).
Vacatur, by contrast, would not cause “disruptive consequences”.
See United Steel v. Mine Safety & Health Admin., 925 F.3d 1279, 1287 (D.C.
Cir. 2019) (also considering “the disruptive consequences of vacatur”
(internal quotation marks omitted)). The Government makes no argument
materially different from its irreparable-injury argument. So we reject the
Government’s arguments here for the same reasons we rejected them in Part
III, supra.
* * *
The Government has failed to make the requisite showing for all four
Nken factors. The Government’s motion for a stay pending appeal is
therefore DENIED. The Government’s appeal is hereby EXPEDITED
for consideration before the next available oral argument panel.

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