Posted on June 29, 2022

Court Widens Scope of Deportations

Miriam Jordan, New York Times, June 25, 2022

A Biden administration policy that prioritized the arrest of undocumented immigrants who are considered a threat to public safety and national security has been suspended as of Saturday, rendering millions of people vulnerable to deportation.

A federal judge in Texas had ruled the prioritization policy illegal on June 10, a ruling that took effect late Friday after a federal appeals court failed to issue any decision blocking it. The Department of Homeland Security said it effectively had no discretion under the ruling to set priorities for how its agents enforced the nation’s immigrant-removal laws.

“While the department strongly disagrees with the Southern District of Texas’ court decision to vacate the guidelines, D.H.S. will abide by the court’s order as it continues to appeal it,” the department said in a statement.

It said Immigration and Customs Enforcement agents would 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.”

The court order leaves the government in an unusual situation. Recent administrations have set at least some priorities establishing which undocumented immigrants should be targeted for removal, in most cases trying to identify people who have committed crimes or who pose some other threat before moving on to others. The Trump administration significantly broadened the range of immigrants identified for deportation, but, even then, there was some guidance to target criminals, legal experts said.

The removal of the guidelines is likely to renew some of the fears that plagued immigrant communities during Donald J. Trump’s presidency, when nearly anyone without legal residence was subject to arrest, though the Biden administration has pledged to take a measured approach to enforcement even without a prioritization policy.

In a policy memo to immigration agents last year, the homeland security secretary, Alejandro Mayorkas, had directed agents not only to prioritize immigrants involved in crimes and security threats, but to take into consideration other factors in deciding whether to apprehend them — such as whether they had lived in the United States for many years, were of advanced age or had U.S.-born children.

This leaves nearly all of the estimated 11 million undocumented immigrants in the country theoretically open to arrest and deportation, though exactly who would be targeted and how is unclear.


The Biden immigration policy was the latest to be blocked by courts based on challenges filed in conservative-led states, in this case Texas and Louisiana.

Judges have also blocked the administration from lifting pandemic-related restrictions at the border, renewing protections for young immigrant “Dreamers” who came to the country as children, and canceling a policy that requires many asylum seekers to remain in Mexico while their immigration cases are considered by U.S. courts.

In the September 2021 policy memo, Mr. Mayorkas instructed immigration officers to employ “discretionary authority” in deciding who should be arrested and removed from the country.

Being present in the country without authorization “should not alone be the basis of an enforcement action,” the memo said. {snip}


The lawsuit that led to Friday’s ruling was filed by Texas and Louisiana, which argued that their states faced strains on services, such as health care, when required to provide them for large numbers of undocumented immigrants. They also claimed there was a heightened risk of crime to their communities when the government did not remove people who were in the country illegally, though studies have shown that undocumented immigrants are less likely to commit crimes than other residents.

In the lower court decision, Judge Drew B. Tipton, a Trump appointee, concluded that the homeland security secretary’s decision to adopt priorities was “arbitrary and capricious” and that federal law required a series of procedures before such a policy change, including a public comment period.

He also ruled that the policy violated immigration law because it “ties the hands” of agents in the field and “changes the standard” for whom they can detain and when.


Rebekah Wolf, policy counsel at the American Immigration Council, said the court ruling “could force the administration’s hand into indiscriminate mass enforcement.”