Judge Blocks 100-Day Deportation Ban, Handing Early Loss to Biden

Siding with Texas in its challenge of the Biden administration’s 100-day pause on deportations, a federal judge issued a nationwide injunction Tuesday prohibiting the government from enforcing the ban.

Migrants return to Mexico using the Puerta Mexico bridge that crosses the Rio Grande river in Matamoros, Mexico, on the border with Brownsville, Texas, in 2019. (AP Photo/Emilio Espejel, File)

(CN) — A Trump-appointed federal judge ruled Tuesday that Texas is likely to prevail on its claims that the Biden administration’s deportation moratorium violates a federal law requiring the government to deport immigrants within 90 days after they are ordered removed.

U.S. District Judge Drew Tipton in Victoria, Texas, handed down the temporary restraining order Tuesday afternoon blocking enforcement of the 100-day ban.  

Before Biden was sworn in as president, Texas Attorney General Ken Paxton and Governor Greg Abbott, both Republicans, promised to impede any of his executive orders they believe encroach on state’s rights.

Paxton quickly made good on that promise.

He sued the federal government and Department of Homeland Security officials on Friday, the day the moratorium took effect, claiming if deportations stop there will be more undocumented immigrants in Texas for whom the state will have to pay additional social services costs, including on emergency Medicaid services and public education.

The Biden administration claims the pause is needed to ensure those facing deportation can remain in the country “while the DHS reviews its policies and practices to allow for an orderly and just immigration system.”

Biden is shifting the department’s focus back to deporting people who have been convicted of violent crimes and are threats to national security, as it was under his former boss Barack Obama, away from the Trump administration’s policies of deporting any and all paperless immigrants arrested by U.S. Immigration and Customs Enforcement.

Texas argued the halt violates an agreement it reached with DHS in Trump’s final days in office which requires the federal agency to give it 180 days’ written notice before any substantive change to enforcement of federal immigration law.

Tipton made clear Tuesday his order is not based on that agreement, which critics have assailed as a secret deal that’s not binding on the new administration.

The judge blocked DHS from implementing the moratorium for 14 days, finding Texas has proven it will suffer a concrete injury if it takes effect.

“Here, Texas asserts and has provided evidence that the 100-day pause will result in millions of dollars of damage to its public fisc by causing it to increase its spending on public services to illegal aliens,” Tipton wrote. “The court is therefore satisfied for now that Texas has established an injury-in-fact.”

He disagreed with the Biden administration’s claims that federal law does not mandate immigrants be removed within 90 days after they are ordered deported. He said that interpretation goes against the statute’s plain text: “When an alien is ordered removed, the attorney general shall remove the alien from the United States within a period of 90 days.”

Calling the deportation ban a “seditious left-wing insurrection,” Paxton bragged about the victory Tuesday on Twitter.

“Texas is the FIRST state in the nation to bring a lawsuit against the Biden Admin. AND WE WON. Within 6 days of Biden’s inauguration, Texas has HALTED his illegal deportation freeze,” he wrote. (Emphasis in original.)

The Biden administration also argued the Jan. 20 memo establishing the removal freeze is immune from judicial review.

Tipton was unconvinced.

He found the statute only block courts from exercising jurisdiction over deportation challenges filed by or on behalf of immigrants.

“Texas is not an alien. Nor does Texas bring this action ‘on behalf of’ any alien,” he wrote in a 17-page order.

Attempting to refute Texas’ allegations the deportation halt is arbitrary because DHS did not consider a more limited policy, the Biden administration pointed to exceptions to the moratorium.

It does 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.

But Tipton found the Biden administration not only failed to consider a more limited policy, but also did not offer any reasonable justification for a 100-day halt of deportations.

He was unpersuaded by DHS’s claims it needs time for a comprehensive review of enforcement policies and to ensure the department’s removal resources are focused on its highest enforcement priorities. The agency said it has limited resources needed to carry out deportations because it needs to divert staff to the southwest border to screen asylum seekers.

“DHS, however, never explains how the pause in removals helps accomplish these goals,” Tipton wrote.

Tipton expressed concerns about issuing a nationwide injunction, but found Fifth Circuit precedent holds they are appropriate for immigration matters.

After securing a temporary restraining order, Texas will now lobby Tipton for a preliminary injunction against the moratorium. Tipton ordered Texas and the Justice Department to propose a briefing schedule by Jan. 28.

Responding to Tipton’s order, the Texas Democratic Party blasted Paxton for trying to score political points at the expense of taxpayers.

“Again, Ken Paxton and Governor Abbott think they somehow have a say on immigration matters, when we all know this is a federal process,” its chair Gilberto Hinojosa said in a statement.

The ACLU Foundation of Texas filed an amicus brief in the case backing the Biden administration. It claims Texas has not proven how the moratorium will harm it, but only offered up “assumptions, speculation, and generalized statistics,” an argument rejected by Tipton when he found Texas has standing.

Despite the setback, White House staff believe Biden will ultimately prevail.

“We’re confident that as the case proceeds, it will be clear that this measure was wholly appropriate in ordering a temporary pause to allow the agency to carefully review its policies, procedures and enforcement priorities — while allowing for a greater focus on threats to public safety and national security,” a White House spokesman said on Tuesday. 

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