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Federal judge reverses Biden immigration orders that released detained immigrants

The Trump-appointed judge says Biden’s policies have resulted in a dramatic decrease of noncitizens convicted of felonies in Immigration and Customs Enforcement custody.

VICTORIA, Texas (CN) — The Biden administration must revamp its deportation policies, a Trump-appointed judge ruled Friday, finding they conflict with immigration statutes by making optional the detention of noncitizens convicted of aggravated felonies and other serious crimes.

“The core of the dispute is whether the executive branch may require its officials to act in a manner that conflicts with a statutory mandate imposed by Congress. It may not,” U.S. District Judge Drew Tipton wrote in the first lines of his ruling.

Tipton struck down a memo from U.S. Department of Homeland Security Secretary Alejandro Mayorkas that took effect in November and established guidelines detailing when U.S. Immigration and Customs Enforcement officers should take undocumented immigrants into custody for deportation.

As with two previous interim enforcement policy memos issued by Biden’s DHS officials, the final memorandum set three priorities: national security, border security and public safety.

On national security, it directed ICE officers to arrest noncitizens engaged in or suspected of involvement in terrorism or espionage; for border security, those apprehended at the border or ports of entry while trying to illegally enter the country on or after Nov. 1, 2020; and for public safety, those convicted of serious crimes.

Tipton noted that unlike previous iterations, the final memorandum does not presume noncitizens convicted of aggravated felonies should be arrested, instructing ICE officers that the public safety priority “is not to be determined according to bright lines or categories.”

Mayorkas also emphasized in his memo that ICE will make individualized assessments, accounting for mitigating factors such as how long they have lived in the U.S., whether they suffer from mental illness that contributed to their crimes and whether they are their families’ breadwinners.

Tipton's latest ruling comes after he held a bench trial on the merits in February and he cites the same reasons for striking down Mayorkas’ final memorandum as he did in his preliminary injunction order against the interim regime.

He claims the administration is flouting portions of the Immigration and Nationality Act and the Illegal Immigration Reform and Immigrant Responsibility Act, both passed by Congress in 1996, that require ICE to take into custody immigrants in the country without papers who have committed certain crimes after they are released from jail or prison and to imprison those who have been ordered deported during the removal period.

ICE officers arrest noncitizens who are convicted criminals by issuing detainer requests, asking prison and jail officials to retain custody of them keep so ICE can pick them up.

Tipton notes in his ruling that from fiscal years 2017 to 2020, ICE rescinded no more than a dozen detainers per year for undocumented immigrants locked up in Texas state prisons. He says the Texas Department of Criminal Justice did not start tracking dropped detainers until Biden took office in January 2021.

“From January 20, 2021 through February 15, 2022, ICE rescinded detainers on 170 criminal aliens in TDCJ facilities. It later reissued the detainer or took custody of 29 of those inmates. … Of the 141 criminal aliens whose detainers remained rescinded, 55 were serving a sentence for a drug offense. These were serious drug offenses; none were for a single offense involving possession of 30 grams or less of marijuana for one’s own use,” the order states.

According to Tipton, paperless immigrants convicted of such drug offenses must be arrested by ICE for deportation.

Louisiana’s prison system has also seen a handful of dropped detainers, according to the case record. In spring 2021, ICE canceled detainers for at least four noncitizen Louisiana inmates, or took custody of them only to return them to Louisiana for probation or parole.

“One of those was convicted of indecent behavior with juveniles and sexual battery. His detainer was rescinded, and he was released subject to supervised release,” Tipton says in his ruling.

He says Biden’s policies have resulted in a dramatic decrease of convicted noncitizens in ICE custody.

The administration said it has prosecutorial discretion to make these decisions given the fact that ICE only has around 30,000 detention beds.

But Tipton rejected that argument: “Using the words ‘discretion” and ‘prioritization,’ the executive branch claims the authority to suspend statutory mandates. The law does not sanction this approach. Accepting the executive branch’s position would have profound consequences for the separation of powers.”

Tipton said Congress recognized the lack-of-detention-capacity problem in the Illegal Immigration Reform and Immigrant Responsibility Act, signed by President Bill Clinton in 1996, which is why it included “transition rules” meant to give the U.S. attorney general a one-year grace period, which could be extended for an additional year, in which the mandatory detention of criminal immigrants would not be the general rule.

“But a grace period is not a license to permanently disregard the law. Congress expected that after two years, the executive branch would comply. … The Transition Rules demonstrate, and the Constitution demands, that when it is difficult for the executive branch to comply with Congress’s instructions, the proper course is to ask for more support or for the law to be changed,” Tipton wrote.

He fails to mention Congress has tried and failed numerous times over the last 25 years to overhaul the nation’s immigration laws due to partisan gridlock.

Tipton found Texas and Louisiana have standing due to costs they incur incarcerating, educating and providing health care for undocumented immigrants.

He determined the administration had violated the Administrative Procedure Act because its deportation policies are “arbitrary and capricious” and were put into place by DHS Secretary Mayorkas without first going through notice-and-comment period in which the public could weigh in.

He vacated the memo and remanded to DHS to come up with a new regime.

Tipton has proven to be an insurmountable stumbling block for Biden as he strains to make good on his campaign promise of implementing a more fair immigration system, in contrast to the hardline policies of his predecessor, Donald Trump.

In another lawsuit filed by Texas, Tipton issued the first order against Biden’s immigration policies days after the president took office, stopping him from implementing a 100-day pause on deportations.

White House press officers did not respond late Friday to a request for comment on the order.

Texas Attorney General Ken Paxton took a victory lap on Twitter.

“I just dealt Biden another massive defeat in fed court. He tried to throw out immigration law, saying DHS didn’t have to detain criminal illegals. The court now says he must. I will always hold the line with the Dems and the rule of law,” he wrote.

Tipton stayed his order for seven days to allow the Biden administration to appeal, which it did Monday.

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Categories / Civil Rights, Criminal, Government, International

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