A federal judge on Thursday shot down the Biden administration’s attempt to place limits on which illegal immigrants can be arrested and deported, saying the policy ran contrary to the law and the Department of Homeland Security failed to justify why it was a good idea.
Judge Drew Tipton, a Trump appointee to the bench in Texas, issued a national injunction resetting the immigration enforcement playing field back to where it was before President Biden took office.
He said immigration law says the government “shall” detain and try to deport certain categories of illegal immigrants, and the new Biden limits, issued in a series of guidance memos from Homeland Security and U.S. Immigration and Customs Enforcement, defy that congressional order.
“Although this case involves many issues of administrative and immigration law, its core concerns whether the executive branch may implement a policy that directly conflicts with laws that Congress enacted. The answer is no,” the judge ruled in a 160-page opinion.
The ruling is the latest in a series of legal blows to the Biden administration. Judge Tipton previously blocked the Biden administration’s 100-day deportation pause, and another federal judge in Texas this month shot down Homeland Security’s attempt to revoke the “remain in Mexico” border policy. A third federal judge in the state ruled that the DACA program, created in the Obama era and backed by the Biden team, was established illegally.
Thursday’s ruling could be the toughest for the Biden team because it cuts deeply into the president’s campaign promises to free most illegal immigrants from any real fear of deportation.
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Although illegal immigrants with criminal records are always a priority for ICE, officers were free to arrest and try to deport other illegal immigrants they encountered under the Trump administration.
The Biden team said it wanted to put an end to that. It laid out new priorities that targeted those deemed security risks and those with severe felony convictions. Recent border jumpers were also considered targets. Others who didn’t meet those priorities could be deported, but only after receiving approval from higher-ups.
ICE officers said the rules prevented arrests of serious sex offenders, including one case involving indecency with a child by sexual contact and another involving sexual assault of a juvenile younger than 14.
Homeland Security Secretary Alejandro Mayorkas has argued that ICE’s budget is too limited to enforce the law the way it was enforced in the Trump era.
He said the new priorities, which were deemed interim guidance, were an attempt to focus arrests and deportations on the most serious cases.
But ICE arrests have plummeted, according to data kept by the Transactional Records Access Clearinghouse. The number fell to about 3,000 a month from March through July, or about half what it was last year at the height of the pandemic and less than a third of what it was in 2019.
Early data also suggested fewer serious criminals were being arrested, despite the focus.
Texas and Louisiana sued to block the rules, saying they were being forced to release criminals who in previous times would have been picked up by ICE in accordance with the law.
Judge Tipton agreed.
“These laws plainly mandate the detention of all the deportable criminal aliens subject to the relevant statutes. The new guidelines directly go against these congressional mandates,” he wrote.
Sen. Chuck Grassley of Iowa, the top Republican on the Senate Judiciary Committee, cheered the judge’s ruling as a victory for Congress’ laws.
“These policies were put in place specifically to limit ICE’s ability to arrest, detain and deport illegal immigrants from the United States, including illegal immigrants with criminal records,” he said.
Judge Tipton signaled in his ruling that he will keep a close eye on how the Biden administration complies with his order.
He demanded new filings in two weeks showing what standards the government will use to govern arrests and deportations and a monthly filing on how many people were released from local custody who under the law should have been detained but were instead allowed to be released.
Judge Tipton said the government must start keeping records on why each person was not detained, complete with the name of the person who made the decision.
The judge’s ruling diverges from that of a federal judge in Arizona, who rebuffed that state’s attempt to block the Biden deportation rules.
Mr. Mayorkas is already updating the deportation priorities and is months behind his own self-imposed deadline.
Before Thursday’s decision, the administration told the judges to expect the new Mayorkas rules late this month or next month.
Judge Tipton said his ruling does not interfere with Mr. Mayorkas’ review, though it’s not clear whether the timing would be upended, given the judge’s skepticism over any attempt to defy Congress’ policy on who must be detained.
The ruling is a preliminary injunction, and the case will continue to be argued with an eye toward a final decision. Texas and Louisiana, as part of their lawsuit, asked the judge to go beyond blocking ICE’s limits and compelling ICE to make arrests. The judge said he was reserving that issue for later in the litigation.
• Stephen Dinan can be reached at sdinan@washingtontimes.com.
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