The Department of Homeland Security on Saturday said that it will abide by a court ruling that struck down the Biden administration’s significantly narrowed priorities for Immigration and Customs Enforcement (ICE) — saying agents will make decisions on a “case-by-case” basis as its appeal is heard.
“While the Department strongly disagrees with the Southern District of Texas’s court decision to vacate the Guidelines, DHS will abide by the court’s order as it continues to appeal it,” DHS said in a statement.
The statement is in response to a ruling from Texas Judge Drew Tipton earlier this month that nullified the Biden administration’s memo that limits significantly which illegal immigrants the agency can arrest and deport. Tipton put a stay for seven days which is now expired, and the administration is appealing the ruling.
“During the appeals process, ICE agents and officers will make enforcement decisions on a case-by-case basis in a professional and responsible manner, informed by their experience as law enforcement officials and in a way that best protects against the greatest threats to the homeland,” DHS said.
The September memo, which solidified temporary guidance issued in Feb. 2021, limited agents to prioritizing recent border crossers, threats to national security and those with certain “aggravated” felonies.
“The fact an individual is a removable noncitizen therefore should not alone be the basis of an enforcement action against them,” DHS Secretary Alejandro Mayorkas said in the memo. “We will use our discretion and focus our enforcement resources in a more targeted way. Justice and our country’s well-being require it.”
Under the policy, arrests and deportations have plummeted. In FY 2021, which included the final months of the Trump administration, ICE arrested 74,082 noncitizens and deported 59,011. Of the 74,082 arrests between October 2020 and October 2021, only 47,755 took place after Feb. 18 when the new priorities were implemented. Of removals, just 28,677 of the 59,011 deportations took place after Feb. 18.
In FY 2020, there were 103,603 arrests and 185,884 removals. In FY 2019 the agency arrested 143,099 illegal immigrants and deported 267,258.
Texas and Louisiana sued over the memo, and Tipton in his ruling agreed with the states that the government fell short in reconciling the guidance with federal law, which demands the detention in certain situations.
He said the government “offers an implausible construction of federal law that flies in the face of the limitations imposed by Congress.”
“True, the Executive Branch has case-by-case discretion to abandon immigration enforcement as to a particular individual, he said. “This case, however, does not involve individualized decisionmaking. Instead, this case is about a rule that binds Department of Homeland Security officials in a generalized, prospective manner—all in contravention of Congress’s detention mandate.”
Tipton said the government’s regulations were not just offering guidance to agents, as the government claimed, but instead “provides a new basis on which aliens may avoid being subject to the enforcement of immigration law.” It is therefore a rule and subject also to the Administrative Procedures Act (APA) and therefore subject to certain conditions, like a notice-and-comment period.
“Judge Tipton confirmed what we have argued all along: law and order must prevail,” Louisiana Attorney General Jeff Landry said in a statement. “The Biden Administration can no longer allow dangerous and violent criminal aliens to roam free in our communities.”
Meanwhile, the DHS memo itself now has a statement attached to it: “On June 10, 2022, the U.S. District Court for the Southern District of Texas issued a final judgment vacating Secretary Mayorkas’s September 30, 2021 memorandum Guidelines for the Enforcement of Civil Immigration Law (Mayorkas Memorandum). Accordingly until further notice, ICE will not apply or rely upon the Mayorkas Memorandum in any manner.”
The court ruling marked the latest defeat for the Biden administration on issues of immigration. Tipton himself has previously blocked a proposed 100-day moratorium on deportations, and earlier ICE rules last year.
Similarly, the Biden administration was recently dealt a blow when a federal court in Louisana struck down its attempts to end Title 42 — a public health order put in place at the start of the COVID-19 pandemic which has been used to expel a majority of migrants at the border. The administration last year was also ordered to re-implement the Trump-era Migrant Protection Protocols (MPP), which it was found to have ended unlawfully — a matter that is now before the Supreme Court.