Thursday, October 6

Judge voids Biden administration restrictions on immigration arrests and deportations

A federal judge in Texas on Friday granted a request by Republican-led states to throw out Biden administration rules that placed limits on whom federal immigration agents should seek to arrest and deport from the U.S., declaring the directive unlawful.

U.S. District Court Judge Drew Tipton said Homeland Security Secretary Alejandro Mayorkas did not have the authority to issue a September 2021 memo that directed immigration officials to focus on arresting immigrants deemed to threaten public safety or national security and migrants who recently crossed a U.S. border illegally.

Tipton, an appointee of former President Donald Trump, agreed to void Mayorkas’ memo, which was challenged by Republican officials in Texas and Louisiana. But he paused his ruling for seven days to give the Biden administration time to appeal.

Friday’s ruling is the latest setback in federal court for the Biden administration’s immigration agenda, which has faced more than a dozen lawsuits by Texas and other Republican-controlled states. 

Federal judges appointed by Mr. Trump have blocked the Biden administration from ending a policy that requires asylum-seekers to wait for their court hearings in Mexico and a pandemic-era measure that allows border officials to quickly expel migrants. Tipton himself halted an 100-day moratorium on deportations during Mr. Biden’s first month in office, as well as an earlier directive that limited immigration arrests.

The Justice Department, which represents the federal government in litigation, did not comment on Friday’s court order. A spokesperson for the Department of Homeland Security (DHS), which oversees Immigration and Customs Enforcement (ICE) deportation officers, said officials are “currently assessing the court order and considering next steps.”

In his September 2021 memo, Mayorkas said someone’s status as an unauthorized immigrant should not be the only reason to arrest them, arguing that federal officials should focus their limited resources on detaining and deporting those deemed to endanger national security, public safety or border security. 

“In exercising our discretion, we are guided by the fact that the majority of undocumented noncitizens who could be subject to removal have been contributing members of our communities for years,” Mayorkas wrote, highlighting the work of immigrant essential workers, teachers and farm workers.

House Homeland Security
Secretary of Homeland Security Alejandro Mayorkas testifies before the House Committee on Appropriations Subcommittee Homeland Security Committee during a hearing on Wednesday, April 27, 2022.

Jose Luis Magana / AP


But Tipton portrayed Mayorkas’ memo as too restrictive on ICE agents, saying it effectively shielded some immigrants with criminal records from arrest. He found that the directive’s implementation violated laws mandating the detention of immigrants convicted of certain crimes or with final orders of deportation.

“It is also true that the Executive Branch may prioritize its resources. But it must do so within the bounds set by Congress,” Tipton wrote in his 96-page opinion. “Whatever the outer limits of its authority, the Executive Branch does not have the authority to change the law.”

Mayorkas’ memo instructed ICE agents to weigh “aggravating factors,” such as the gravity of crimes, the harm inflicted on victims and previous convictions, as well as “mitigating factors,” like the age of the immigrant, the time they have lived in the U.S. and military service, when deciding whether to make an arrest.

Tipton said that analysis limits ICE agents’ discretion and violates the mandatory detention laws.

“At times, agents and officers on the ground are forced to make quick decisions as they encounter individuals, and this scheme ties their hands and changes the standard under which they make decisions on whom to detain and when,” Tipton wrote.

Tipton also ruled that Mayorkas enacted the memo in an “arbitrary and capricious” fashion, contrary to federal administrative law. The Biden administration rules, Tipton said, should have been implemented after allowing the public to comment on the policy changes.

Texas and Louisiana, Tipton argued, have been financially harmed by Mayorkas’ directive, citing costs associated with detaining or providing social services, such as healthcare, to immigrants who are not detained by the federal government. 

The memo issued by Mayorkas in September is one of several policies the Biden administration has instituted to overhaul ICE’s mission and narrow the groups of immigrants subject to arrest and deportation.

Under Mr. Biden, ICE has discontinued the detention of families with children, ended large-scale worksite arrests, shielded most U.S. military veterans and service members from deportation and generally barred agents from arresting certain groups, including pregnant or nursing women and victims of serious crimes.

In fiscal year 2021, ICE carried 59,011 deportations, a record low. While the sharp drop in deportations can be partly attributed to the Biden administration’s arrest priorities, it was also partially fueled by the border emergency measure known as Title 42 that allows for the quick expulsions of migrants.

Since March of 2020, when the Trump administration invoked the Title 42 public health authority, U.S. officials along the southern border have expelled migrants nearly two million times without processing their asylum claims, DHS statistics show.

Because those expulsions have been carried out under a public health law, as opposed to the traditional deportation procedures passed by Congress, they are not counted in ICE’s tally of deportations.



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