Alito, J., dissenting
from criminal confinement who had both been “convicted of an ‘aggravated felony’ ” and were “determined to pose a threat to public safety.” 606 F. Supp. 3d 437, 454 (SD Tex. 2022) (internal quotation marks omitted); see §1101(a)(43) (defining “aggravated felony”). This prioritization was inconsistent with the §1226(c) arrest mandate, which extends to all aliens convicted of any crime within a long list of statutory categories. 606 F. Supp. 3d, at 454–455.
In February, Immigrations and Customs Enforcement (ICE), an arm of DHS, issued a second memorandum that slightly modified the earlier priorities and stated that “ ‘preapproval’ ” would generally be required “for enforcement actions” against persons outside these priority groups. Id., at 455–456. This memorandum was also inconsistent with the relevant statutes.
After some litigation regarding these two memoranda, a new DHS Secretary issued a Final Memorandum instructing that even aliens in priority groups need not necessarily be apprehended and removed. App. 113–115. Rather, the Final Memorandum directed DHS personnel to consider non-statutory “aggravating and mitigating factors” in deciding whether to detain an alien. Id., at 114–115. It further stated that DHS “personnel should not rely on the fact of [a qualifying] conviction” when exercising “prosecutorial discretion.” Id., at 115. Thus, the Final Memorandum did not simply permit deviations from the statutory mandates; it flatly contradicted those mandates by stating that qualifying convictions were insufficient grounds for initiating arrest, detention, and removal.
C
Texas and Louisiana challenged this Final Memorandum in federal court under the Administrative Procedure Act (APA). After a 2-day bench trial, the District Court found in favor of the States and made detailed findings of fact that bear on the issue of standing.
