Texas claims shortly after it sued the Biden administration over a 100-day halt of deportations, immigration officials went a step further and released people who were incarcerated and awaiting removal from the country.
HOUSTON (CN) — The Biden administration must provide records about any immigrants ordered deported who were released from custody in the wake of executive action pausing deportations for 100 days, a federal judge ruled Monday.
Texas sued the federal government and Department of Homeland Security officials Friday, claiming the deportation freeze violates a deal it struck with DHS two weeks before Biden’s Jan. 20 inauguration that gave it authority to stay any substantive change to federal immigration law enforcement for 180 days if it does not consent to the change.
The deportation freeze was part of a suite of executive orders on immigration signed on Biden’s first day in office to reverse policies of Donald Trump. Biden also halted construction of the border wall, ordered DHS to take all actions needed to “preserve and fortify” the program shielding some undocumented immigrants brought to the U.S. as children from deportation, and ended Trump’s so-called Muslim travel ban that barred people from several Muslim-majority countries from entering the U.S.
In Texas’ lawsuit filed in Victoria, Texas federal court, its Republican Attorney General Ken Paxton asked U.S. District Judge Drew Tipton, a Trump appointee, for a preliminary injunction immediately lifting the deportation freeze.
Tipton heard arguments Friday and took the matter under advisement before Texas dropped a bombshell advisory Sunday.
Citing a Fox News report, the state said an internal email U.S. Immigrations and Customs Enforcement sent ICE officials in Texas on Thursday had ordered them to not only stop all removals, but to immediately release those in custody who have been ordered removed, starting on Friday, the day the moratorium took effect.
“Release them all, immediately. No sponsor available is not acceptable any longer,” the email from an official in ICE’s Houston Field Office states.
An email sent in response instructs the sender to “retract this directive immediately.” The Justice Department filed a redacted copy of the email chain Monday afternoon.
Texas says this development highlights its immediate need for relief.
“Defendants’ refusal to remove illegal aliens is directly leading to the immediate release of additional illegal aliens in Texas,” Texas states in its Jan. 24 brief.
One of Texas’ main arguments is there will be more undocumented immigrants in the state for whom it will have to shoulder additional social services costs if DHS stops deportations.
The deportation halt “will force the state to spend additional money on emergency Medicaid, the Family Violence Program, the Children’s Health Insurance Program, and public schools,” Texas alleges in the advisory.
In a response brief, the Justice Department said ICE had indeed released some immigrants facing deportation from custody in Texas, but only because they are part of a certified class in separate litigation before a federal court in California.
The California court had issued an injunction requiring ICE to release immigrants with health problems putting them at risk of severe complications from Covid-19.
“Texas’s argument is based on their implicit suggestion that the Immigration and Nationality Act mandates the detention of aliens subject to final orders of removal that have not yet been executed,” the feds’ brief states. “Texas’s understanding of immigration law is incorrect.”
The government says federal law only mandates immigrants be incarcerated for the initial 90 days after they are ordered deported. “After that period, the government ‘may’—not must—detain the alien,” Justice Department attorney Adam Kirschner wrote in the brief.
Seeking clarity after a status conference Monday morning, Judge Tipton ordered the government’s counsel to find out how many people ordered deported have been released from custody in the U.S. since Friday and what prisons they were released from.
He also wants the feds to verify the only ICE releases since Friday were pursuant to the injunction in the California class action.
Republicans have complained Biden’s moratorium is like sending an invitation to would-be immigrants that if you make it into the United States you won’t be deported.
But the memo that enacted the deportation pause, issued by Biden’s acting Homeland Security Secretary David Pekoske, does not apply to people who entered the country after Nov. 1, 2020. It also makes undocumented immigrants suspected of involvement in terrorism or espionage fair game for ICE to immediately deport.
DHS says the deportation halt is needed to preserve the status quo while it reviews its immigration policies.
After four years in which the Trump administration’s hardline immigration policies authorized ICE to arrest and remove anyone in the country illegally, Biden is shifting the department’s focus back to deporting people who have been convicted of violent crimes, as it was under Barack Obama. Biden was Obama’s vice president.
According to the government, Texas lacks standing because it has offered no evidence to back its claims of fiscal harm caused by the moratorium.