The Biden administration faces an uphill battle in court after a federal judge ruled that its attempt to limit severely which illegal immigrants federal law enforcement may arrest and remove from the United States overstepped its congressional authority.
Judge Drew Tipton of the U.S. District Court for the Southern District of Texas ruled on Friday that the Biden administration once again violated the law with its directive that limited who Immigration and Customs Enforcement officers could target for removal.
“The Executive Branch may prioritize its resources. But it must do so within the bounds set by Congress,” Tipton, a Trump appointee based in Corpus Christi, Texas, said in his ruling. “Using the words ‘discretion’ and ‘prioritization,’ the Executive Branch claims the authority to suspend statutory mandates. The law does not sanction this approach.”
The Department of Justice was given seven days from June 10 to appeal Tipton’s decision before the Fifth Circuit Court of Appeals. Historically, the Biden administration has not fared well before this court. DOJ did not respond to a request for comment about whether it will appeal the decision.
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The policy director for the Washington-based American Immigration Council, Aaron Reichlin-Melnick, described Tipton’s ruling as a move that “nearly eliminates the ability of [the Department of Homeland Security] to reprioritize certain immigrants for detention.”
“Unless DOJ lucks out again on an immediate request for a stay with the 5th Circuit like they did last year, this is getting to the Supreme Court within a manner of days,” Reichlin-Melnick wrote on Twitter.
Because more than 11 million people residing in the U.S. do not have permission to be in the country, ICE’s 6,000 deportation officers have had to prioritize for years who they will attempt to arrest, typically focusing on people with criminal backgrounds.
Under President Donald Trump, ICE officers were allowed to go after any illegal immigrant, including those arrested after driving under the influence or charged with other less violent crimes.
In February 2021, Homeland Security Secretary Alejandro Mayorkas instructed ICE officers to seek manager approval when arresting anyone who was not a national security threat, had illegally entered the country before November 2020, or was not an aggravated felon. Texas and Louisiana successfully sued, and the order was blocked in federal court.
In September 2021, Mayorkas put forth a revised version of the rule.
“The fact an individual is a removable noncitizen will not alone be the basis of an enforcement action against them,” the DHS said in a statement at the time. “The Department’s personnel are to use their discretion and focus the Department’s enforcement resources in a more targeted way.”
The plan superseded the February measure by reversing the mandate that an officer get management’s approval for certain arrests, but it began requiring officers to carry out an analysis of the person they wish to target, likely restricting arrests of people it said in February were “public safety” threats. The review is intended to avoid considering a noncitizen’s race, religion, gender, sexual orientation or gender identity, national origin, political associations, or exercise of First Amendment rights.
Arrest and deportation data from the fiscal year 2021, which ran from October 2020 through September 2021, showed that ICE saw a 75% decline in both categories, an indication that Biden’s reining in of ICE was having a significant impact on operations, as did closures of U.S. immigration courts during the coronavirus pandemic.
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Biden’s acting ICE director, Tae Johnson, defended the policy as an effort to prioritize limited law enforcement resources “to achieve the greatest security and safety impact.” The federal statute gives ICE officers “broad discretion” in who they target within the U.S., the Congressional Research Service wrote last week in a review of the Biden administration’s actions.
Although immigration enforcement actions have typically come through presidential executive actions and the lawsuits that followed them, CRS Legislative Attorney Hillel R. Smith noted that Congress could also play a significant role in amending policies by pushing changes in appropriations bills.
