A Biden administration policy that prioritized the arrests of undocumented immigrants deemed a threat to public safety and national security was suspended Saturday, leaving millions open to deportation.
A federal judge in Texas had ruled the prioritization policy illegal June 10, a decision that went into effect late Friday after a federal appeals court failed to issue a decision blocking it. The Department of Homeland Security said it has virtually no discretion under the ruling to prioritize how its agents enforce national immigrant deportation laws.
“Although the department strongly disagrees with the Southern District of Texas court’s decision to overturn the guidelines, DHS will comply with the court’s order while it continues to appeal,” the department said in a statement.
It said immigration and customs officials would make enforcement decisions on a case-by-case basis “in a professional and responsible manner, based on their experience as law enforcement officers, and in a manner that best protects against the greatest threats to the home country.” ”
The court decision puts the government in an unusual situation. Recent governments have at least set some priorities in determining which undocumented immigrants should be targeted for deportation, and in most cases attempt to identify individuals who have committed crimes or pose another threat before moving on to others. The Trump administration has significantly expanded the range of immigrants identified for deportation, but even then there has been some guidance to target criminals, legal experts said.
The repeal of the guidelines is likely to renew some of the fears that plagued immigrant communities during Donald J. Trump’s presidency, when nearly everyone without legal residence was arrested, despite the Biden administration’s pledge to go even without a measured approach to enforcement one prioritization policy.
In a policy memo to immigration officials last year, Homeland Security Secretary Alejandro Mayorkas instructed officials not only to prioritize immigrants involved in crime and security threats, but also to consider other factors when deciding whether to arrest them — such as whether they lived many years in the United States, were of advanced age, or had children born in the United States.
That leaves almost all of the country’s estimated 11 million undocumented immigrants theoretically at risk of arrest and deportation, although exactly who will be targeted and how is unclear.
“The problem with shifting priorities is that there is no standardization, rhyme or reason,” said Karen Tumlin, founder of the Justice Action Center, an immigrant rights group.
“A person here who is 20 years old and is the parent of children with US citizens could be involved in a removal process,” Ms. Tumlin said. “Someone who takes their child to school who has never committed a crime could be arrested.”
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Biden’s immigration policy was the last to be blocked by courts over lawsuits filed in conservative-run states, in this case Texas and Louisiana.
Judges have also prevented the administration from lifting pandemic-induced border restrictions, renewing protections for young immigrant “dreamers” who came to the country as children and lifting a policy required of many asylum seekers in Mexico to stay while their immigration cases are pending scrutiny by US courts.
In the September 2021 policy memo, Mr Mayorkas instructed immigration officials to use “discretionary powers” in deciding who to arrest and deport from the country.
The unauthorized presence in the country “should not be the sole basis of an enforcement action,” the memo said. “We will use our discretion and pool our enforcement resources in a more targeted manner,” the letter said, initially targeting those who pose a threat to public or national security.
“The majority of undocumented migrants who are at risk of deportation have been contributory members of our communities for years,” the memo said, noting that the federal government’s exercise of discretion over immigration matters is a “deep-rooted tradition” backed by law.
The new priorities marked a shift in inland immigration enforcement. The change was part of a broader effort by President Biden to adopt what he called a more humane immigration policy than his predecessor, whose administration engaged in more widespread arrests of immigrants.
ICE agents in the Trump era often searched homes or workplaces to arrest immigrants recently identified for deportation, sweeping up other bystanders — sometimes just bystanders. Agents conducted large operations in so-called shelter cities and made hundreds of arrests.
During this time, fearing arrest, many unauthorized immigrants abstained from spending time outdoors with their families and limited their outings to essential trips to shop and work.
The Obama administration has deported millions of people, but it has not conducted major crackdowns on workplaces, and most of the people who have been deported have been recent cross-border commuters. It also prioritized criminals for deportation.
The lawsuit that led to Friday’s ruling was filed by Texas and Louisiana, who argued that their states were burdened with services like health care if they had to be provided to large numbers of undocumented immigrants. They also claimed that there is an increased risk of crime for their communities when the government does not deport people who are in the country illegally, although studies have shown that undocumented immigrants are less likely to commit crimes than other residents.
In the lower court’s decision, Justice Drew B. Tipton, a Trump-appointed judge, concluded that the Secretary of Homeland Security’s decision to prioritize was “arbitrary and capricious” and that federal law precluded such a policy change of procedures required, including a public comment period.
He also ruled that the policy violated immigration law because it “ties the hands” of agents on the ground and “changes the standard” on who and when they can detain.
The judge stayed his decision to allow the government to file an urgent motion. But the stay expired Friday, and the U.S. Circuit Court of Appeals had not yet rendered a ruling, allowing Judge Tipton’s order to go into effect.
Immigrant advocates who supported the policy said immigration officials have long received guidance from the White House. They said the Supreme Court, which is expected to be asked to rule on the current case, had previously ruled that executive branch has discretion over immigration matters, including the deportation process.
Rebekah Wolf, policy advisor at the American Immigration Council, said the court ruling “could force the government into indiscriminate mass enforcement.”
Some of the advocates of tougher immigration policies welcomed the lower court’s decision, arguing that immigration laws should be enforced uniformly.
They said that agents should not be expected to make value judgments about whether an undocumented immigrant can remain in the United States. Anyone with a good argument against deportation can bring the case before an immigration judge, said Andrew Arthur, a resident law and policy fellow at the Center for Immigration Studies, which advocates restricting all immigration.
“Congress does not allow or expect immigration officials to judge whether they are good fathers, little league coaches or ushers at their local church,” he said. “ICE officers don’t have a crystal ball or magic scorecard to know everything that goes on in a person’s life.”
Most of the millions of unauthorized immigrants have lived in the country for at least a decade, often with US-born children and deep ties to their communities. About two-thirds of undocumented adults are employed, according to the Pew Research Center.
“The ruling will create more fear and uncertainty among people who have lived in our communities for years and decades,” said Sirine Shebaya, executive director of the National Immigration Project.
Government attorneys argued that the policy was an appropriate exercise of discretion that made sense given the Department of Homeland Security’s limited resources.
Even before Mr. Biden took office, many migrants were arriving at the southern border. Record numbers were surpassed this year, coming from Mexico and Central America, as well as Asia, Europe and Africa, where the Covid-19 pandemic has caused widespread job losses.
Persons released from asylum detention may remain in the country until they have exhausted their legal rights in court and are ordered to leave the country. Others have crossed the border without starting the legal asylum process; Many of them can be deported immediately. Biden administration policy has called for immigration officials to focus on these newcomers as well.
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