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
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
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.
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