The Supreme Court declined a request from the Biden administration to reinstate immediately a policy limiting arrests of illegal immigrants after a Texas court found the directive violated existing immigration laws.
Thursday’s order will leave the policy frozen for now. The high court said it will hear merits regarding the case in the first week of the December 2022 argument session.
Justices Sonia Sotomayor, Elena Kagan, Amy Coney Barrett, and Ketanji Brown Jackson said they would have sided with the administration to put a lower court ruling on hold.
BIDEN’S ATTEMPT TO LIMIT ICE ARRESTS OF IMMIGRANTS FACES UPHILL COURT BATTLE
The Biden administration had faced an uphill battle in court after a federal judge ruled in June 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 had concluded that the Biden administration violated the law with its directive that limited whom U.S. Immigration and Customs Enforcement officers could target for arrest and 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 turned to the 5th U.S. Circuit Court of Appeals, but the court rebuffed the administration’s request on July 6 to put Tipton’s order on hold.
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 whom they will attempt to arrest, typically focusing on people with criminal backgrounds.
Under then-President Donald Trump, ICE officers were allowed to go after any illegal immigrant, including someone arrested for driving under the influence or facing a traffic violation.
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 Department of Homeland Security 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 ICE officer get a manager’s approval for certain arrests, but it began requiring officers to carry out an analysis of the person they wish to target, making it more difficult for ICE to pursue deporting someone simply on the basis of being in the U.S. without permission.
Arrest and deportation data from fiscal year 2021, which ran from October 2020 through September 2021, showed that ICE saw a 75% decline in both categories, an indication that President Joe 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.
A Washington Examiner investigation last month found that ICE’s federal prosecutors were being directed to dismiss stacks of cases against illegal immigrants who did not meet the same public safety, border security, and national security criteria. To date, the Biden administration is on pace to effectively pardon 1 million people by 2024, according to leaked information reviewed by the Washington Examiner.
Attorneys for ICE have begun to throw out tens of thousands of the 2 million backlogged cases in immigration court following a political appointee’s order not to go after illegal border crossers from before the November 2020 election.
“This is a de facto amnesty,” said an ICE federal prosecutor who spoke with the Washington Examiner on the condition of anonymity.
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The application for a stay was presented to Justice Samuel Alito, who denied the request. The decision marks the first vote for Jackson since she was sworn in as the 116th Supreme Court justice last month.
