Before JONES, CLEMENT, and ENGELHARDT, Circuit Judges. PER CURIAM: Before the court is the Department of Homeland Securityâs (âDHSâ) request to stay the district courtâs vacatur of a new immigration rule that radically reduces the federal governmentâs detention of those who are statutorily required to be removed post-haste. The district court determined that the rule conflicts with federal statutes, is arbitrary and capricious, and that its promulgation was procedurally invalid. We are inclined to agree. Because DHS fails to make a strong showing of likelihood of success on appeal, the motion for a stay pending appeal is DENIED. We distinguish this case from a recent decision by the Sixth Circuit, authorizing a stay pending appeal, based on differing precedent and the benefit of a complete trial record. BACKGROUND Federal immigration law provides that the Attorney General âshall take into custody,â âshall detain,â and âshall removeâ aliens convicted of certain enumerated crimes and aliens who have become subject to final orders of removal. 8 U.S.C. §§ 1226(c)(1), 1231(a)(2), 1231(a)(1)(A). Under the current Presidential Administration, to âimplementâ these provisions, the Department of Homeland Security (âDHSâ) has outlined new immigration âguidance for the apprehension and removal of noncitizensâ in a series of memoranda. The first memorandum was circulated in January 2021, when then-Acting Secretary of Homeland Security David Pekoske purported to âannounce[] substantial changes to the enforcement of the Nationâs immigration laws,â including the establishment of certain enforcement priorities. The approved enforcement priorities entailed national security, public safety, and border security. What made this memorandum controversial was that each of these categories was narrowly defined to address certain threats but exclude others enumerated in the federal statutes. For example, DHS required Immigration and Customs Enforcement (âICEâ) agents to prioritize the enforcement of aliens who committed aggravated felonies, but not other deportable aliens with final orders of removal or who trafficked controlled substances, participated in the commercialized sex industry, trafficked humans, were convicted of certain firearm offenses, among others. Effective enforcement in this context would mean that ICE agents could apprehend aliens with certain criminal convictions or aliens who have final removal orders and detain them for speedy processing toward removal. But the first memorandum basically ignored the legal requirement of detention, and therefore the likelihood of removal, for those not âprioritized.â In February, Acting ICE Director Tae Johnson issued a second memorandum, reiterating the same three narrowly-focused categories. That memorandum added a requirement that enforcement agents obtain âpreapprovalâ from their superior offices for any enforcement action against criminal aliens that did not fall within the three priorities. Both the January and February memoranda were labelled interim measures and were intended to guide immigration officials âuntil Secretary Mayorkas issues new enforcement guidelines.â On September 30, 2021, the Secretary of Homeland Security Alejandro Mayorkas issued a third and final memorandum (âFinal Memoâ). Notably, it is agreed that the Final Memo is an agency rule under the Administrative Procedure Act, 5 U.S.C. § 551(4). The Final Memo âserve[d] to rescind the January and February Memoranda.â It re- articulated the same three enforcement priorities, but, unlike the prior memos, it did not âpresumptively subject [the priorities] to enforcement action.â Instead, before ICE officers may arrest and detain aliens as a threat to public safety, they are now required to conduct âan assessment of the individual and the totality of facts and circumstances,â including various aggravating or mitigating factors. Immigration enforcement personnel are prohibited from ârely[ing] on the fact of conviction . . . alone,â no matter how serious. Similarly, enforcement personnel âshould evaluate the totality of the facts and circumstancesâ before determining whether an alien who is otherwise a threat to border security ought to be subject to enforcement. Not only did the Final Memo engrave these three priorities into immigration enforcement, but it also specified procedures to ensure agency-wide compliance. Specifically, the Final Memo required â[e]xtensiveâ and âcontinuousâ training, and the implementation of a ârigorous reviewâ process of all enforcement decisions. According to the memo, DHS would also âneed to collect detailed, precise, and comprehensive data as to every aspect of the enforcement actions [] take[n] pursuant to th[e] guidance, both to ensure the quality and integrity of [the] work and to achieve accountability for it.â Notably, the Final Memo establishes a âfair and equitable case review process to afford noncitizens and their representatives the opportunity to obtain expeditious review of the enforcement actions taken.â In other words, according to the Final Memo, those whom the law designates as aliens are granted an entirely new avenue of redress in the event they are removed or detained in a manner that conflicts with the guidance. The Final Memo was circulated along with a second memo titled âSignificant Considerations in Developing Updated Guidelines for the Enforcement of Civil Immigration Lawâ (âConsiderations Memoâ), which summarized the key aspects of the Final Memo. The Considerations Memo further purported to provide insight into DHSâs reasoning for issuing the Final Memo. The district court found that these regulatory actions, culminating in the Final Memo, have had measurable effects on immigration enforcement. This is particularly true in Texas, where, from 2017 to 2020 (i.e., before any of the memoranda were issued) ICE agents rescinded no more than a dozen criminal detainers annually. Yet the district court found that from January 20, 2021 through February 15, 2022, detainers for 170 criminal aliens were rescinded in Texas.[1] At least seventeen of those aliens failed to comply with their parole conditions, four have committed new crimes, and at least one remains at large in Texas with a warrant out for his arrest.[2] At least fifteen of the detainers were rescinded after the Final Memo became effective. One alien who was initially subject to a final order of removal was instead released to the public in Texas after his detainer was rescinded. The marked increase in rescinded detainers of criminal aliens has led the Texas Department of Criminal Justice (âTDCJâ) to update its inmate-tracking system to record any rescinded detainers, a feature that was previously unnecessary due to the infrequency at which this occurred. According to data from 2019, DHS previously acknowledged that criminal aliens recidivated at an average rate of four criminal arrests/convictions per alien. Texas and Louisiana filed suit, challenging the legality of the Final Memo on the basis that it is contrary to federal law, arbitrary and capricious, and procedurally invalid.[3] The States argued that DHSâs issuance of the Final Memo conflicts with 8 U.S.C. §§ 1226(c) and 1231(a), both of which provide that the Attorney General âshallâ detain or remove an alien who committed certain crimes or who is subject to an order of removal, respectively. Because the Final Memo prohibits these statutorily mandated detentions and removals absent a thorough â review [of] the entire criminal and administrative recordâ in order to ascertain the âtotality of the facts and circumstances of the conduct at issue,â the States contended that the rule cannot stand, and they thus sought injunctive relief. The district court consolidated the preliminary injunction motion with a two-day bench trial. In an exhaustive opinion, the court agreed with the Statesâ positions on all three issues and vacated the Final Memo. He stayed the effect of the vacatur briefly to allow DHS to seek appellate review. Defendants expeditiously moved this court to stay the vacatur order pending appeal. STANDARD OF REVIEW When asked to consider whether to grant a stay, this court determines â(1) whether the applicant has made a strong showing of likelihood to suc- ceed on the merits; (2) whether the movant will be irreparably harmed absent a stay; (3) whether issuance of a stay will substantially injure other interested parties; and (4) where the public interest lies.â Thomas v. Bryant, 919 F.3d 298, 303 (5th Cir. 2019). DHSâs burden is a substantial one, as a stay is âan extraordinary remedyâ and it is âan equitable one committed to this courtâs discretion.â Id. The district courtâs findings of fact are reviewed for clear error and its legal conclusions de novo. Coe v. Chesapeake Expl., L.L.C., 695 F.3d 311, 316 (5th Cir. 2012). DISCUSSION DHS defends its rule and challenges the district courtâs decision by invoking a plethora of theories. Based on the following discussion, it is likely that the district courtâs opinion evinces no reversible error of fact or law, nor any abuse of discretion. We begin with DHSâs multiple justiciability challenges before proceeding to the merits. Standing DHS contends that the States lack standing to challenge the Final Memo because any purported injury is speculative, unsupported by the evidence, not fairly traceable to the Final Memo, and not redressable in federal court. We disagree. The States must establish by a preponderance of the evidence âan injury that is âconcrete, particularized, and actual or imminent; fairly traceable to the challenged action; and redressable by a favorable ruling.ââ Texas v. United States, 809 F.3d 134, 150 (5th Cir. 2015) (âTexas DAPAâ) (quoting Clapper v. Amnesty Intâl USA, 568 U.S. 398, 409, 133 S. Ct. 1138, 1147 (2013)). It is only necessary that one state have standing, so we, like the district court, analyze Texasâs standing. Massachusetts v. E.P.A., 549 U.S. 497, 518, 127 S. Ct. 1438, 1453 (2007). Notably, â[s]tates are not normal litigants for the purposes of invoking federal jurisdiction.â Id. at 518, 127 S. Ct. at 1454. And here, Texas is entitled to âspecial solicitude,â[4] which means imminence and redressability are easier to establish here than usual. Injury Texasâs injuries as a result of the Final Memo are difficult to deny, specifically its financial injury and harm as parens patriae. First, the uncontroverted evidence shows that the Final Memo shifted the cost of incarcerating or paroling certain criminal aliens from DHS to Texas. Specifically, the TDCJ incurs costs to keep aliens in custody or add them to parole or mandatory supervision programs when those aliens are not detained or removed by federal immigration authorities. The district court found that, for Fiscal Year 2020, the cost of these programs for inmates not detained or removed was $11,068,994. Additionally, the Tarrant County Sherriff estimated that the average cost of jailing inmates with immigration detainers amounted to $3,644,442 per year. DHS does not contest these findings. Second, and perhaps most importantly, the state incurs substantial costs associated with criminal recidivism, the rate of which is significant among the illegal alien population according to evidence presented in the district court. The district court found that, as of January 2022, Tarrant County housed 145 inmates with immigration detainers and that, based on the criminal-history of these inmates, the recidivism rate was 90% for that population. In October 2021, the recidivism rate for the inmates with immigration detainers was 69%. Furthermore, DHS conceded that historical data demonstrated that criminal aliens recidivated at an average rate of four criminal arrests/convictions per alien. Again, DHS does not meaningfully dispute these findings or the conclusion that recidivism is a serious problem among the criminal alien population. Third, the district court further found Texas has actually absorbed, or at least will imminently absorb, the costs of providing public education and state-sponsored healthcare to aliens who would otherwise have been removed pursuant to federal statutory law. And âan increase in the number of aliens in Texas, many of whomâ will create costs for the States, is sufficient to establish standing. Texas v. Biden, 10 F.4th 538, 547 (5th Cir. 2021). This court recognized that Texas suffers constitutional injury where an increase in the number of aliens would cause the state to incur significant costs in issuing additional driverâs licenses. Texas DAPA, 809 F.3d at 155â56. Similar logic extends to Texasâs obligation to subsidize these additional aliensâ healthcare and education costs. DHS raises a number of conclusory challenges to some of these fact findings, none of which come close to sustaining âclear error.â It first asserts that the Final Memo does not compel a decrease in enforcement, but rather merely encourages prioritized enforcement against the most dangerous aliens. Underlying this claim is the assumption that the Final Memo only reconfigured the agencyâs priorities due to its scarce resources[5] without implicating enforcement levels. But the uncontroverted detainer data plainly contradict this assertion. DHS does not explain why the average daily number of criminal aliens in the United Statesâ custody dropped following the January Memo, and continues decreasing into 2022 under the Final Memo, let alone successfully show that the district courtâs findings on this matter were clearly erroneous. [6] Rather, the data show that the Final Memo âincreases the number of aliens with criminal convictions and aliens with final orders of removal released into the United States,â and Texas has shown by a preponderance of the evidence that the cost of that reality has fallen on it and will continue to do so.[7] Traceability Nor does this case present a traceability problem. The district court found that, when ICE rescinds a detainer for a criminal inmate in TDCJ custody, those rescissions directly caused the Texas Board of Pardons and Paroles to revoke parole for certain aliens who were previously approved for parole and, accordingly, those criminal aliens remain in Texasâs custody. For others, the district court found that the detainer rescissions caused an increase in the number of criminal aliens and aliens with final orders of removal to be released into Texas. Consequently, some immigrants who, according to the statutes, are required to be detained and deported will certainly seek healthcare services from the State as well as educational services. Thus, Texas is left with few alternatives regarding what to do with these âde-prioritizedâ aliens otherwise subject to mandatory detentionâ continue to incarcerate those with criminal convictions, or supervise them rigorously, or provide state-sponsored healthcare and educational services to the releasees. Texas has sufficiently established that these harms are presently or imminently traceable to the Final Memo. Redressability Similarly unavailing is DHSâs contention that Texasâs injuries are not redressable because âresource limitations preclude DHS from enforcing the INA against all noncitizens.â The district courtâs vacatur does not need to operate on all aliens in Texas who are eligible for speedy removal. A court order need only alleviate some of the stateâs asserted harms. Sanchez v. R.G.L., 761 F.3d 495, 506 (5th Cir. 2014) (âWhen establishing redressability, a plaintiff need only show that a favorable ruling could potentially lessen its injury; it need not definitively demonstrate that a victory would completely remedy the harm.â (internal quotation marks omitted)). Texasâs costs would be eased if DHS stopped rescinding detainers pursuant to the Final Memo, and thus vacating the Final Memo would naturally redress Texasâs harm to a meaningful degree. Reviewability DHS next articulates several theories that purport to deprive the federal courts of the power to adjudicate the merits. First, it suggests, for the first time on appeal, that 8 U.S.C. § 1252(f)(1) deprives the district court of jurisdiction to vacate the guidance. Second, it contends that the Final Memo does not constitute final agency action, thus rendering it unreviewable by the federal courts. Third, it asserts that the Final Memo represents decisions that are committed to DHSâs discretion by law. Finally, it suggests that the States fall outside of the INAâs âzone of interests.â Each point is likely to fail. Section 1252(f)(1) Section 1252(f)(1) strips the federal courts (other than the Supreme Court) of jurisdiction to âenjoin or restrain the operation ofâ §§ 1221â1232 of the INA. The Supreme Court recently clarified that § 1252(f)(1) âgenerally prohibits lower courts from entering injunctions that order federal officials to take or to refrain from taking actions to enforce, implement, or otherwise carry out the specified statutory provisions.â Garland v. Aleman Gonzalez, No. 20-322, slip op. at 5 (U.S. June 13, 2022). There, the Court interpreted § 1252(f)(1) to prevent a class of aliens who were detained pursuant to 8 U.S.C. § 1231(a)(6) from obtaining class wide injunctive relief. Id. at 2, 4. The Court held that the ordinary meaning of the statute âbars the class-wide reliefâ sought. Id. at 4. DHS suggests that this holding applies âwith equal force to vacatur,â because such a vacatur âprohibitsâ DHS from implementing the Final Memo and de facto âenjoin[s] or restrain[s]â the agencyâs enforcement decisions. But DHS reads too much into the Aleman Gonzalez opinion. There are meaningful differences between an injunction, which is a âdrastic and extraordinary remedy,â and vacatur, which is âa less drastic remedy.â Monsanto Co. v. Geertson Seed Farms, 561 U.S. 139, 165, 130 S. Ct. 2743, 2761 (2010). The Supreme Court has indicated that § 1252(f) is to be interpreted relatively narrowly. Indeed, the Court described § 1252(f) as ânothing more or less than a limit on injunctive relief.â Reno v. Am.-Arab Anti-Discrimination Comm., 525 U.S. 471, 481, 119 S. Ct 936, 942 (1999). And again, in a recent opinion, the Supreme Court reiterated this sentiment and additionally noted that the title of the provisionââLimit on injunctive reliefââclarified the ânarrowness of its scope.â See Biden v. Texas, No. 21- 954, slip op. at *9, 12 (U.S. June 30, 2022) (âTexas MPPâ). Extending Aleman Gonzalez to vacatur is particularly dubious in light of the Courtâs caveats. Additionally, a vacatur does nothing but re-establish the status quo absent the unlawful agency action. Apart from the constitutional or statutory basis on which the court invalidated an agency action, vacatur neither compels nor restrains further agency decision-making. We decline to extend Aleman Gonzalez to such judicial orders, especially when doing so would be contrary to the âstrong presumption favoring judicial review of administrative action.â[8] Salinas v. U.S. R.R. Ret. Bd., 141 S. Ct. 691, 698 (2021). DHS is unlikely to demonstrate that this provision strips federal court jurisdiction to vacate unlawful agency action. Final Agency Action Judicial review is available for âfinal agency action for which there is no other adequate remedy in a court.â 5 U.S.C. § 704. âThe Supreme Court has long taken a pragmatic approach to finality, viewing the APAâs finality requirement as flexible.â Texas v. EEOC, 933 F.3d 433, 441 (5th Cir. 2019) (internal quotation marks omitted). To be âfinal,â (1) the action must âmark the consummation of the agencyâs decisionmaking processâ and âit must not be of a merely tentative or interlocutory nature;â additionally, (2) it must âbe one by which rights or obligations have been determined, or from which legal consequences will flow.â Bennett v. Spear, 520 U.S. 154, 177â78, 117 S. Ct. 1154, 1168â69 (1997) (internal quotation marks and citation omitted). DHS does not dispute that its Final Memo was the âconsummation of the agencyâs decisionmaking process,â only that the memo entailed no legal consequences and created no rights or obligations. Agency action satisfies the second requirement of Bennett âif it either appears on its face to be binding or is applied by the agency in a way that indicates it is binding.â EEOC, 933 F.3d at 441. Importantly here, the withdrawal of previously articulated discretion is an action that âalters the legal regime, binds the entity, and thus qualifies as final agency action.â Id. (internal quotation marks omitted). Such a âwithdrawal of discretion distinguishes a policy statementâwhich leaves the agency the discretion and the authority to change its position in any specific case and does not seek to impose or elaborate or interpret a legal normâfrom a final agency action.â Id. (internal quotation marks omitted). DHS asserts that the guidance in no way binds enforcement agents and their superiors, but âsimply ensures that discretion is exercised in an informed way.â As the district court explained, the record plainly belies that assertion. First, ICE officers previously possessed the discretion to arrest and detain aliens on the basis of a qualifying conviction or a final order of removal alone, subject to mandatory statutory dictates. But the Final Memo withdraws this discretion completely by prohibiting them to rely solely on a statutorily qualifying conviction or removal order. It asserts: âThe fact an individual is a removable noncitizen therefore should not alone be the basis of an enforcement action against them;â and DHS âpersonnel should not rely on the fact of conviction or the result of a database search alone.â This withdrawal of discretion is reinforced by compulsory language used throughout the Final Memo (i.e., âAgain, our personnel must evaluate the individual and the totality of the facts and circumstances and exercise their judgment accordingly;â âWhether a noncitizen poses a current threat to public safety is not to be determined according to bright lines or categories;â âAgency leaders as to whom this guidance is relevant to their operations will implement this guidance accordingly.â). Second, the Final Memo implements various mechanisms to ensure compliance, including â[e]xtensive training materials and a continuous training programâ in order to âensure the successful application of this guidance.â Additionally, all enforcement decisions are subject to ârigorous reviewâ during the first ninety days of implementation in order âto achieve quality and consistency in decision-making across the entire agency.â After the ninety days, â[l]onger-term review processes should be put in place . . . drawing on lessons learned,â and â[a]ssessment of implementation of this guidance should be continuous.â Accordingly, not only will ICE agents be subject to âextensiveâ training on this guidance, but they will also have superiors looking over their shoulders to ensure their compliance. Moreover, the Final Memo now mandates the collection of âdetailed, precise, and comprehensive data as to every aspect of the enforcement actions [] take[n] pursuant to th[e] guidance, both to ensure the quality and integrity of [the] work and to achieve accountability for it.â Third, other evidence confirms the Final Memoâs binding effect on immigration enforcement. The Considerations Memo, circulated contemporaneously with the Final Memo, asserted that âthe new guidelines will require the workforce to engage in an assessment of each individual case and make a case-by-case assessment as to whether the individual poses a public safety threat, guided by a consideration of aggravating and mitigating factors.â When agents take an enforcement action, they must report it in a database and select which of the three priorities characterizes their actions. The database makes clear that, besides the three priority categories, ââOtherâ Priority is no longer an option.â Agents must also certify that they have faithfully considered âall relevant case specific informationâ as instructed by the Final Memo before submitting their information. Thus, an enforcement agent has no conscientious way to avoid the prioritization and special procedures required by the Final Memo. DHSâs insistence that agency-wide discretion remains intact as it was before the Final Memo is untenable. We have no difficulty determining that the Final Memo was a final agency action under § 704. Committed to Agency Discretion Agency action is not subject to judicial review if it âis committed to agency discretion by law.â 5 U.S.C. § 701(a)(2). The Supreme Court has âread th[is] exception in § 701(a)(2) quite narrowly, restricting it to âthose rare circumstances where the relevant statute is drawn so that a court would have no meaningful standard against which to judge the agencyâs exercise of discretion.ââ Weyerhaeuser Co. v. U.S. Fish & Wildlife Serv., 139 S. Ct. 361, 370 (2018) (quoting Lincoln v. Vigil, 508 U.S. 182, 191, 113 S. Ct. 2024, 2030â31 (1993)). Seeking to squeeze the Final Memo within this narrow exception, DHS contends that these are agency enforcement decisions, which are âgenerally committed to an agencyâs absolute discretion.â Heckler v. Chaney, 470 U.S. 821, 831 (1985). In the first place, it is unlikely that Hecklerâs approval of prosecutorial discretion applies to agency rules.[9] But even if it did, it would not insulate this rule. The Court in Heckler expressly distinguished its holding from cases involving the present circumstances. It emphasized: Nor do we have a situation where it could justifiably be found that the agency has consciously and expressly adopted a general policy that is so extreme as to amount to an abdication of its statutory responsibilities. Although we express no opinion on whether such decisions would be unreviewable under § 701(a)(2), we note that in those situations the statute conferring authority on the agency might indicate that such decisions were not âcommitted to agency discretion.â 470 U.S. at 833 n.4, 105 S. Ct. at 1656 n.4 (emphasis added). The Final Memo does not represent a one-off enforcement decision, but rather a calculated, agency-wide rule limiting ICE officialsâ abilities to enforce statutory law. As will be indicated below, DHSâs interpretation of the governing statutes seems obviously inconsistent with their meaning as a matter of linguistics, text, and context. This rule gives every indication of being âa general policy that is so extreme as to amount to an abdication of its statutory responsibilities.â Id. Accordingly, Heckler does not save the Final Memo from judicial scrutiny. But even in the unlikely event that Heckler bears on this rule, the Court emphasized in its opinion that any enforcement discretion was not absolute. Rather, âthe presumption may be rebutted where the substantive statute has provided guidelines for the agency to follow in exercising its enforcement powers.â Heckler, 470 U.S. at 832â33, 105 S. Ct. at 1656. This makes sense. Congress defines the scope of the agencyâs discretion, and the Executive is not able to use its discretion in order to thwart the boundaries of its authority. As further explained below, 8 U.S.C. §§ 1226(c) and 1231(a) are such substantive statutes that curb agency discretion as it pertains to this particular rule. See Jennings v. Rodriguez, 138 S. Ct. 830, 837 (2018) (âSection 1226(c) . . . carves out a statutory category of aliens who may not be released under § 1226(a).â). For both these reasons, DHS is unlikely to succeed on this point. Zone of Interests Congress has provided a cause of action under the APA for parties whose alleged injury was âarguably within the zone of interests to be protected or regulated by the statutes that the agencies were claimed to have violated.â Collins v. Mnuchin, 938 F.3d 553, 574 (5th Cir. 2019), affâd in part, vacated in part, revâd in part sub nom. Collins v. Yellen, 141 S. Ct. 1761 (2021) (internal quotation marks omitted). But this requirement is not âespecially demandingâ and âthe benefit of any doubt goes to the plaintiff.â Id. (internal quotation marks omitted). âThe test forecloses suit only when a plaintiffâs interests are so marginally related to or inconsistent with the purposes implicit in the statute that it cannot reasonably be assumed that Congress intended to permit the suit.â Texas DAPA, 809 F.3d at 162 (internal quotation marks omitted). DHS contends that the States do not fall within the zone of interests covered by §§ 1226(c) or 1231(a). But this final justiciability argument is also foreclosed by precedent. This court holds that â[t]he interests the states seek to protect fall within the zone of interests of the INA,â and two criminal immigration statutes fall squarely within that interest. Id. at 163. The States will have no trouble clearing this low bar on appeal. Legality of Agency Action DHSâs three defenses of the Final Memo on its merits are also likely to fail on final appellate consideration. We address each in turn. Contrary to Law A primary point of contention here is whether the Final Memo conflicts with 8 U.S.C. §§ 1226(c) and 1231(a) by rendering optional what the statutes make mandatory. Significantly, these provisions are distinguishable from 8 U.S.C. § 1225(b), construed in Texas MPP, which governs aliens apprehended at the U.S. border who claim asylum relief. The relevant provisions here do not utilize discretionary language, unlike the main provision in Texas MPP, § 1225(b)(2)(C). Additionally, unlike Section 1225(b), the instant provisions relate to the expedited removal of a small subset of aliens who have been in the United States and fall into two categories: (1) those who, having been convicted of certain enumerated criminal offenses, are removable; and (2) those who, at the conclusion of immigration proceedings, have become subject to final removal orders. Accordingly, we determine that the Courtâs statutory analysis in Texas MPP does not foreclose the question presented to this court with respect to §§ 1226(c) and 1231(a). We begin with the plain language and structure of the statutes. Section 1226(c) provides: âThe Attorney General shall take into custody any alien whoâ committed certain delineated crimes[10] âwhen the alien is releasedâ from state or local custody. § 1226(c)(1) (emphasis added). There is one, and only one, qualification to this mandatory provision, which authorizes discretionary release of such an alien âonly ifâ three things are trueâsuch release is ânecessary to provide protectionâ for a witness or cooperator; and the alien proves he will pose no danger to persons or property and will appear for proceedings; and the release procedures must take into account the severity of the alienâs offense.[11] To effectuate § 1226(c)âs arrest and detention mandate, Congress also provided that the Attorney General shall devise and implement a system to identify and track criminal aliens in local, state, and federal custody. § 1226(d) (emphasis added). Consequently, as the Supreme Court explained, âSection 1226(c) mandates detention during removal proceedings for a limited class of deportable aliensâincluding those convicted of an aggravated felony.â Demore v. Kim, 538 U.S. 510, 517â18, 123 S. Ct. 1708, 1714 (2003). In Demore, the Court thoroughly explained that § 1226(c) was enacted to redress multiple problems attendant to flight and recidivism because the previous law entitled criminal aliens to individualized bond or detention hearings, which led to a high rate of releases. Id. at 518â20, 123 S. Ct. at 1714â16. Congress was âconcern[ed] that, even with individualized screening, releasing deportable criminal aliens on bond would lead to an unacceptable rate of flight.â Id. at 520, 123 S. Ct. at 1716. But, evidencing the sharply different enforcement concerns between non-criminal aliens and criminal aliens, Congress provided more discretion as it pertains to non-criminal aliens. Section 1226(a), which applies to aliens â[e]xcept as provided in [§ 1226(c)],â states that the Attorney General âmay continue to detain the arrested alien,â or âmay release the alien onâ bond or conditional parole. § 1226(a)(1)â(2) (emphasis added). Closely related to § 1226(c) is § 1231(a), which provides that âwhen an alien is ordered removed, the Attorney General shall remove the alien from the United States within a period of 90 days.â § 1231(a)(1)(A) (emphasis added). Further, â[d]uring the removal period, the Attorney General shall detain the alien. Under no circumstance during the removal period shall the Attorney General release an alien who hasâ been convicted of enumerated crimes.[12] § 1231(a)(2) (emphasis added). Under basic principles of statutory construction, different words are accorded their âordinaryâ meaning and the text of a statute must be construed as a whole.[13] Nowhere do these principles make more sense than in the juxtapositions of âshallâ with âmayâ in the two provisions at issue here. In fact, the Court has firmly warned that these terms should be afforded different meanings, especially where both are used in the same statute. See, e.g., Texas MPP, slip op. at *13â15 (holding that the âunambiguous, express term âmayââ does not mean âshallâ and it was error for the lower court to hold otherwise); Jama v. Immigr. & Customs Enfât, 543 U.S. 335, 346, 125 S. Ct. 694, 703 (2005) (noting that it is error to read these two words synonymously when both are used in the same statute). Indeed, the Supreme Court has repeatedly interpreted both of these statutes to require mandatory detention.[14] Johnson v. Guzman Chavez, 141 S. Ct. 2271, 2280â81 & n.2 (2021) (âDuring the removal period, detention is mandatoryâ under § 1231(a)(2), and â[f]or certain criminal aliens and aliens who have connections to terrorism, detention is mandatoryâ under § 1226(c)); Nielsen v. Preap, 139 S. Ct. 954, 959 (2019) (referring to § 1226(c) as a âmandatory-detention requirementâ); Jennings, 138 S. Ct. at 846 (noting that § 1226(c) âmandates detentionâ); Zadvydas v. Davis, 533 U.S. 678, 683, 121 S. Ct. 2491, 2495 (2001) (âAfter entry of a final removal order and during the 90â day removal period, however, aliens must be held in custodyâ under § 1231(a)(2)); Demore, 538 U.S. at 517â18, 123 S. Ct. at 1714 (2003) (âSection 1226(c) mandates detention during removal proceedings for a limited class of deportable aliens.â). The parallel treatment of mandatory and precatory terms indicates conscious choices by Congress. DHS does not dispute that âshallâ typically represents mandatory language and that âmayâ âclearly connotesâ discretion. Texas MPP, slip op. at 13 (quoting Opati v. Republic of Sudan, 140 S. Ct. 1601, 1603 (2020)). See also Maine Cmty. Health Options v. United States, 140 S. Ct. 1308, 1320 (2020) (âUnlike the word âmay,â which implies discretion, the word âshallâ usually connotes a requirement.â). Nevertheless, citing Town of Castle Rock, Colo. v. Gonzales, 545 U.S. 748, 125 S. Ct. 2796 (2005), DHS contends that there must be clear legislative intent, beyond the word âshall,â that the legislature intended to overcome the agencyâs established discretion. Specifically, DHS argues that Castle Rockâs holding that â[t]he deep-rooted nature of law-enforcement discretionâ may trump âseemingly mandatory legislative commandsâ overcomes the plain meaning of the term âshallâ in the instant provisions. Id. at 761, 125 S. Ct. 2796. But Castle Rock does not apply here for at least two reasons. First, Castle Rock is distinguishable on its facts. There, the Court determined that the plaintiff did not have a protected property interest in the enforcement of the terms of her restraining order by the state police for purposes of the Due Process Clause. 545 U.S. at 755, 125 S. Ct. at 2803. Colorado law did not make enforcement of restraining orders mandatory, irrespective of the use of the term âshall,â and thus there was no general entitlement to enforcement of such restraining orders. Id. at 760-68, 125 S. Ct. at 2805â2809. It is a far stretch of this precedent to extend it from individualized decisions made by police officers to agency-wide decisions made by DHS. It is even more of a stretch when, as just explained, the statutory language seems incontrovertibly mandatory. Indeed, the Supreme Court has never applied Castle Rock to federal agency action, and Fifth Circuit precent has only applied it to federal agency action where a statutory scheme expressly rendered the agency action discretionary.[15] Second, the limitless principle of law that DHS would have us draw from Castle Rock is untenable and wholly unsupported. DHS effectively seeks a reading of Castle Rock that would insulate agency action that in any way relates to enforcement duties, despite the plain language of the INA. Nothing in Castle Rock compels that conclusion. The ruling there was based, not on a police department-wide policy of not enforcing restraining orders, but rather an individualized instance of nonenforcement. The Final Memo, however, is much more than a singular nonenforcement decision. It is an agency-wide mandate that strips from ICE agents their once-held discretion and subjects all enforcement decisions to strict oversight in express derogation of the governing statutes. Castle Rock does not compel us to ignore the plain text of the INA for such agency action. DHS is not likely to succeed on this crucial point. We are additionally disturbed by certain aspects of the Considerations Memo, which purports to summarize and provide context to the Final Memo. In more ways than one, the Considerations Memo compels officials to comply with the Final Memo by utilizing prosecutorial discretion in a manner that violates statutory law. For example, it provides that the guidelines âare essential to advancing this Administrationâs stated commitment to advancing equity for all, including people of color and others who have been historically underserved, marginalized, and adversely affected by persistent poverty and inequality.â DHSâs replacement of Congressâs statutory mandates with concerns of equity and race is extralegal, considering that such policy concerns are plainly outside the bounds of the power conferred by the INA. Similarly, the Considerations Memo explains that, in identifying those who are a threat to public safety, DHS âchose to place greater emphasis on the totality of the facts and circumstancesâ instead of identifying this group categorically. But DHS simply lacks the authority to make that choice when the statutes plainly mandate such categorical treatment. This is especially troubling in light of the fact that Congress attempted to prohibit such individualized consideration when it enacted § 1226(c) because the previous policy led to unacceptably high rates of criminal alien flight. Demore, 538 U.S. at 518â20, 123 S. Ct. at 1714â16. Thus, the Consideration Memo further confirms what the Final Memo says for itselfâ that it represents a disingenuous attempt on behalf of DHS to claim it acts within the bounds of federal law while practically disregarding that law. Arbitrary & Capricious Courts are compelled to âhold unlawful and set aside agency action[s]â that are â arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law.â 5 U.S.C. § 706(2). While a reviewing court must not âsubstituteâ its âown policy for that of the agencyâ and must apply this standard deferentially, the agency action must still âbe reasonable and reasonably explained.â FCC v. Prometheus Radio Project, 141 S. Ct. 1150, 1158 (2021). This court âmust set aside any action premised on reasoning that fails to account for relevant factors or evinces a clear error of judgment.â Univ. of Tex. M.D. Anderson Cancer Ctr. v. HHS, 985 F.3d 472, 475 (5th Cir. 2021) (quotation omitted). Arbitrary and capricious review âis not toothless.â Sw. Elec. Power Co. v. EPA, 920 F.3d 999, 1013 (5th Cir. 2019). âIn fact, after Regents, it has serious bite.â Wages & White Lion Invs., LLC v. FDA, 16 F.4th 1130, 1136 (5th Cir. 2021). â[A]n agencyâs action must be upheld, if at all, on the basis articulated by the agency itself,â not reasons developed post hoc. Motor Vehicle Mfrs. Assân of U.S., Inc. v. State Farm Mut. Auto. Ins. Co., 463 U.S. 29, 50, 103 S. Ct. 2856, 2870 (1983). DHS contends that the Considerations Memo expresses the basis for the Final Memo and is intended to supplement it. Upon examining the Considerations Memo, the district court found that DHS failed to adequately consider the high chances of recidivism and absconding within the relevant class of aliens as well as the costs or reliance interests of the States. On the other hand, DHS argues that the Considerations Memo sufficiently addresses these factors to satisfy the arbitrary/capricious standard. The Considerations Memo states that the âpublic safetyâ factors âare to be weighed in each case to assess whether a noncitizen poses a current threat to public safety, including through a meaningful risk of recidivism.â DHS contends that this illustrates that the agency considered recidivism, and it was not required to support its position with âempirical or statistical studies.â Prometheus, 141 S. Ct. at 1160. But that is beside the point. The district court did not hold that the agency failed to consider recidivism at all. To the contrary, the court concluded that DHS failed to consider recidivism among the relevant population at issue in this caseââaliens who have been convicted of or are implicated in serious crime and aliens who have received a final order of removal.â Those are the aliens covered by § 1226(c)[16] or § 1231(a)(2). While the Considerations Memo generally relies on studies about criminality among all aliens, those studies did not account for potentially higher rates of recidivism among those âwho have already been convicted of a serious crime.â DHS does not assert that general alien criminality can substitute for data concerning the subset of convicted aliens. In fact, in 2019, DHS itself acknowledged that criminal aliens recidivate and abscond at higher rates: Of the 123,128 ERO administrative arrests in FY 2019 with criminal convictions or pending criminal charges, the criminal history for this group represented 489,063 total criminal convictions and pending charges as of the date of arrest, which equates to an average of four criminal arrests/convictions per alien, highlighting the recidivist nature of the aliens that ICE arrests. Yet this actual differential between the general population and the serious previous offender population receives no mention in the Considerations Memo. And it undoubtedly should have, because repeat illegal alien offenders inflict considerable damage on innocent American citizens. On this record, DHS is unlikely to succeed in demonstrating that it considered âthe relevant dataâ and drew a ârational connection between the facts found and the choice made.â State Farm, 463 U.S. at 43, 103 S. Ct. at 2866 (internal quotation marks omitted). We next address the costs of this rule to the States and their reliance interests. âWhen an agency changes course, as DHS did here, it must âbe cognizant that longstanding policies may have engendered serious reliance interests that must be taken into account.ââ Depât of Homeland Sec. v. Regents of the Univ. of California, 140 S. Ct. 1891, 1913 (2020) (quoting Encino Motorcars, LLC v. Navarro, 579 U.S. 211, 212, 136 S. Ct. 2117, 2120 (2016)). Failure to do so is fatal. DHS contends that a multi-page section in the Considerations Memo analyzing the âImpact on Statesâ demonstrates that it adequately considered these interests before circulating the Final Memo. The district court found, however, that this analysis merely paid âlip service to the Statesâ concerns.â We are troubled by DHSâs dismissive analysis, which dots âiâsâ and crosses âtâsâ without actually saying anything. For example, DHS minimizes the influence of its policy on the States as maybe having some âdownstream impacts.â The Considerations Memo then states that it âcannot provide an exhaustive analysis of all of these potential impacts every time it adopts a change in immigration policy.â Rather, it claims that any such âassessmentâ would be âuniquely difficult to conclude with certainty,â so it simply does not bother. Yet, after explicitly declining to quantify or at least reasonably describe the costs of this policy to the States, the agency audaciously concludes that âany effects from implementation of priorities guidance are unlikely to be significant, and could have a net positive effect.â As to the Statesâ reliance interests, the Considerations Memo flatly concludes that âno such reasonable reliance interests exist.â In a single paragraph citing no evidence, DHS concluded that the States, including Texas as a 900-mile border state, has no reliance interests in the enforcement of federal criminal immigration law according to the governing statutes.[17] This omission is more inexcusable since the States have consistently asserted their reliance interests in the context of this litigation, which has been ongoing simultaneously with DHSâs promulgation of the Final Memo and the Considerations Memo. âStating that a factor was considered . . . is not a substitute for considering it.â Getty v. Fed. Sav. & Loan Ins. Corp., 805 F.2d 1050, 1055 (D.C. Cir. 1986). Rather, courts âmust make a searching and careful inquiry to determine if [the agency] actually did consider it.â Id. (internal quotation marks omitted). At this point, DHS has not shown a likelihood that it adequately considered the relevant costs to the States or their reliance interests in the pre-existing enforcement policy. Procedural Invalidity Under the APA, rules must be subject to notice-and-comment rulemaking unless they fall within one of the APAâs exceptions. 5 U.S.C. § 553(b)(A). Such exceptions âmust be narrowly construed.â Texas DAPA, 809 F.3d at 171 (internal quotation marks omitted). DHS contends that its rule does not need to be subject to notice-and-comment rulemaking because it qualifies as a general statement of policy, which merely âadvise[s] the public prospectively of the manner in which the agency proposes to exercise a discretionary power.â Lincoln v. Vigil, 508 U.S. 182, 197, 113 S. Ct. 2024, 2034 (1993) (internal quotation marks omitted). To determine whether a rule is merely a âpolicy statement,â we evaluate two criteria: âwhether the rule (1) imposes any rights and obligations and (2) genuinely leaves the agency and its decision-makers free to exercise discretion.â Texas DAPA, 809 F.3d at 171 (internal quotation marks omitted). âWhile mindful but suspicious of the agencyâs own characterization, we focus primarily on whether the rule has binding effect on agency discretion or severely restricts it.â Id. (internal quotation marks and alterations omitted). As described above, the Final Memo overwhelmingly satisfies both criteria. Both the language found within and the mechanisms of implementing it establish that it is indeed binding, thus removing DHS personnelâs discretion to stray from the guidance or take enforcement action against an alien on the basis of a conviction alone. For the same reasons articulated supra Section II.B, the Final Memo is much more substantive than a general statement of policy and, as such, it had to undergo notice and comment procedures. Because it did not, DHS is unlikely to be successful in establishing that the Final Memo need not have been subject to notice and comments before its promulgation. Remaining Stay Factors DHSâs case on the merits is sufficiently weak to justify denying a stay on that basis alone. But we briefly note our skepticism about DHSâs allegations of âconfusionâ and the potential âwasteâ of âresourcesâ that would result from our allowing the vacatur go into effect. Despite the administrative inconvenience caused by this litigation, DHS has no âinterest in the perpetuation of unlawful agency action.â League of Women Voters of United States v. Newby, 838 F.3d 1, 12 (D.C. Cir. 2016). âTo the contrary, there is a substantial public interest âin having governmental agencies abide by the federal laws that govern their existence and operations.ââ Id. (quoting Washington v. Reno, 35 F.3d 1093, 1103 (6th Cir. 1994)). Furthermore, âthere is always a public interest in prompt execution of removal orders, and that interest may be heightened by circumstances such as a particularly dangerous alien.â Nken v. Holder, 556 U.S. 418, 129 S. Ct. 1749, 1753 (2009) (internal quotation marks, citation, and alterations omitted). Because the prevention of agency abuse overcomes other factors, none of those counsel in favor of granting DHSâs stay.[18] Arizona v. Biden That this decision departs from the Sixth Circuitâs recent opinion in Arizona v. Biden is readily explicable. In that case, the states of Arizona, Montana, and Ohio brought a nearly identical challenge to the Final Memo and DHS sought a stay of the district courtâs nationwide preliminary injunction. Arizona v. Biden, 31 F.4th 469, 472 (6th Cir. 2022). The Sixth Circuit ruled differently on several dispositive issues, but our differences result from two factors. Unlike the Sixth Circuit, this court has developed precedent that predetermines many of our conclusions. See Texas DAPA, 809 F.3d at 134. As to issues raised by DHS that are not foreclosed by circuit precedent, we disagree with our sister circuitâs legal conclusions for the reasons articulated above. Importantly, the Sixth Circuit found the factual record before it insufficient to support the statesâ standing. Arizona, 31 F.4th at 481â82 (âThe States do not suggest that the agency had to calculate the costs of its Guidance on States, and the States themselves have not offered any concrete evidence of the Guidanceâs fiscal effects on each of them.â). This courtâs appellate consideration, in contrast, has been significantly assisted by the district courtâs fulsome fact-findings based on a comprehensively tried case. Facts pertinent to standing and to the administrative issues raised by DHS are not wanting in the record before us. Until there is a contrary ruling from the Supreme Court, we adhere to our precedent and the facts found by the district court. CONCLUSION For the foregoing reasons, the motion for a stay pending appeal is DENIED.