VICTORIA, Texas (CN) — Refusing to let the Biden administration institute a 100-day pause on deportations, a federal judge ruled late Tuesday that the policy is likely unlawful because Texas would have to spend millions to incarcerate and educate immigrants who would otherwise be removed.
Biden announced the 100-day deportation pause on his first day in office through then-Acting Secretary of the Department of Homeland Security David Pekoske. Turning the page from the hardline anti-immigration policies of former President Donald Trump, the move is part of an effort to reset the nation's immigration enforcement priorities with a more humanitarian focus.
Pekoske said the moratorium is needed so Homeland Security can shift its limited resources to enhancing security and helping process asylum seekers at the Southwest border while also protecting the health of Homeland Security staff and those with whom they interact, in compliance with Covid-19 protocols.
The move brought an immediate challenge from Texas Attorney General Ken Paxton, a Republican and diehard Trump loyalist.
He sued the federal government and DHS officials on Jan. 22, the day the moratorium took effect, and secured a temporary restraining order four days later from U.S. District Judge Drew Tipton in Victoria, Texas.
Following up now with the nationwide preliminary injunction, Tipton has blocked the Biden administration from enforcing the moratorium until the case is resolved on the merits.
A Trump appointee to the bench, Tipton found Texas has standing because of costs it will incur incarcerating and educating immigrants who would be removed but for the 100-day deportation moratorium.
"Texas spends an average of $62.34 per day per inmate in its own detention facilities," Tipton wrote. "In 2018, Texas detained 8,951 criminal aliens for a total of 2,439,110 days, costing it $152,054,117. If the 100-day pause causes the number of criminal aliens present in Texas to rise above and beyond what Texas had anticipated and a portion of those criminal aliens recidivate, Texas anticipates its costs 'will increase.'"
Tipton also pointed to the federal government’s reimbursement of states for some of the costs of detaining undocumented immigrants, saying this proves acknowledgement that the deportation pause will financially harm Texas.
The federal government reimbursed $14.6 million, less than 10%, of the more than $152 million Texas spent detaining undocumented immigrants in 2018, according to the case record.
Tipton also credited Texas' argument it will incur costs educating children who entered the country illegally without their parents, so-called "unaccompanied minors."
Texas claims it educated 2,336 unaccompanied children from 2014 to 2020, with yearly costs ranging from $26.71 to $112.1 million. And for the current fiscal year Texas is spending $9,216 per student and $11,432 per student in its bilingual program.
"The court finds that Texas’s claimed injury from unanticipated public education costs is sufficiently concrete and imminent. ... And the harm is imminent because Texas is currently providing public education to unaccompanied children and demonstrates plans to continue doing so in the future," Tipton wrote.
Biden’s moratorium would not apply to people suspected of involvement in terrorism or espionage, who entered the country after Nov. 1, who voluntarily agree to be deported or those whom DHS has found it is required by law to remove.
The Biden administration argued Texas' financial injury is all but negligible.
It said, of the more than 1 million immigrants in the country with a final order of removal, DHS is detaining fewer than 6,000 of them, in part to prevent large Covid-19 outbreaks in immigrant prisons.
"Only some subset will be released during the pause — some DHS will continue to detain and some will be removed consistent with the Memorandum’s exceptions. Of those released, only a smaller portion would end up in Texas. And of those, a still smaller portion, if any, would rely on Texas social services," the government argued in a Feb. 12 brief.
But Tipton found the government's justifications for the moratorium lacking.
"Why does DHS need a 100-day pause on removals to 'fairly and efficiently' process immigration and asylum applications at the southwest border?" he wrote.
"Why is pausing removals essential to redirecting immigration resources? And equally crucial, why and how does the pause connect to the new executive’s need to reset priorities?" he continued.
Tipton also disagreed with the Biden administration's claims federal law does not mandate immigrants be removed within 90 days after they are ordered deported.
The judge did, however, find federal law gives the Biden administration discretion over individual deportation cases.
He wrote that his preliminary injunction does not bar DHS from staying or canceling deportations and detaining some immigrants ordered removed for longer than 90 days.
The government says in briefs that it is often impossible to remove immigrants within 90 days because DHS must obtain "travel documents" from the immigrants’ home countries, with some countries even requiring interviews of the detainee at their U.S. consulates before they authorize their deportation.
Paxton's office did not immediately respond Wednesday morning to a request for comment on the order.