(CN) — Texas and Louisiana sued the Biden administration Tuesday in federal court, claiming the Department of Homeland Security is not issuing detainer requests for immigrants imprisoned on felony convictions, which means they are being released from custody after serving their time instead of deported.
U.S. Immigration and Customs Enforcement can issue detainer requests to prison and jail officials asking them to hold undocumented immigrants behind bars so ICE agents can pick them up.
But Texas and Louisiana claim under memos issued by the Department of Homeland Security in Biden's first days in office, ICE is failing to issue detainer requests for dangerous immigrants incarcerated in their states.
A law passed by the Texas Legislature in 2017 requires local authorities to honor these “immigration hold” requests. If they ignore them, they can be charged with misdemeanors punishable by up to a year in jail and fines starting out at $1,000 and rising to a maximum $25,500 for subsequent violations.
Civil rights groups say detainers raise serious constitutional concerns because they authorize the detention of immigrants for up to 48 hours after they have served their sentences. ICE has also mistakenly issued detainers for U.S. citizens.
Furthermore, Texas claims, the Biden administration has rescinded ICE detainer requests for dozens of immigrants locked up in state prisons run by the Texas Department of Criminal Justice, many of whom were convicted of drug offenses, ranging from possession to manufacture and sale.
"As a result, many convicted criminal aliens have been released to society after their sentences, contrary to Congress's mandate that they be detained pending their removal from the United States," the lawsuit states.
The states claim the new administration's lax detainer policies violate deals they struck with the Department of Homeland Security on Jan. 8, days before former President Donald Trump left office, that requires DHS to consult with them before taking any actions that could reduce immigration enforcement, or increase the number of removable or inadmissible immigrants in the U.S.
Texas and Louisiana say because ICE is not taking immigrants into custody to deport them, they are keeping them in state prisons at substantial expense.
"In 2019, Texas housed almost 9,000 undocumented criminal aliens. Texas’s cost to do so was over $152 million dollars," the complaint states. "Those detention costs will increase as a result of defendants’ failure to detain criminal aliens as it increases the number of criminal aliens that Texas must detain."
Texas made similar arguments about undocumented immigrants' drain on its finances in a successful challenge of the Biden administration's attempt to institute a 100-day pause on most deportations.
U.S. District Judge Drew Tipton, a Trump appointee who hears all civil cases filed in federal court in Victoria, Texas, blocked the deportation moratorium with a nationwide preliminary injunction on Feb. 24, after finding Texas has standing because of costs it will incur incarcerating and educating immigrants who would be removed but for the 100-day deportation moratorium.
By filing its new challenge of Biden's immigration policies in Victoria, Texas, is likely expecting Tipton will side with it again.
Teaming up with Louisiana, Texas claims, as it has in the deportation-pause litigation, the immigrants the Biden administration is failing to detain and deport are eligible for emergency Medicaid services, and their children are eligible for health care under the states' Children's Health Insurance Programs.
Texas claims it spends millions of dollars each year on health coverage for undocumented immigrants.
Both states also say because they must provide public education for children of undocumented immigrants, DHS's failure to detain and deport criminal immigrants increases their taxpayer-funded education costs for such youths.
The Lone Star and Bayou States claims the Biden administration's new "interim guidance" on detainers violates the Constitution, the Immigration and Nationality Act and the Administrative Procedure Act, which requires the government to post proposed substantive rule changes in the Federal Register and allow the public to comment on them before enacting them.
They seek a declaration the memos guiding the new detainer policies are unlawful and an injunction to stop the Department of Homeland Security from abiding by them.
The memos, issued on Jan. 20 and Feb. 18 by senior Department of Homeland Security officials, instruct immigration agents to prioritize removing immigrants who are threats to national security and those convicted of aggravated felonies or gang-related crimes.
But they also spell out the department's limitations. "Due to limited resources, DHS cannot respond to all immigration violations or remove all persons unlawfully in the United States," the Jan. 20 memo states.
Texas Governor Greg Abbott has been one of the fiercest Republican critics of Biden's immigration policies, claiming the president has precipitated a humanitarian crisis as thousands of immigrant children, mostly from Central America, have entered Texas in recent weeks and turned themselves in to immigration agents, overwhelming lockups at Border Patrol stations, where the children are supposed to be held no more than 72 hours, forcing DHS to scramble to open emergency shelters in Texas and California.
Trump used the pandemic as grounds to immediately deport nearly all immigrants who entered the country illegally. But Biden is letting unaccompanied minors stay in the country and trying to quickly place them with family to live with while their asylum claims play out.
Announcing his latest lawsuit Tuesday, Texas Attorney General Ken Paxton, a Republican, tied Biden's new policies on not strictly enforcing ICE detainers to the challenges at the border.
"President Biden’s outright refusal to enforce the law is exacerbating an unprecedented border crisis. By failing to take custody of criminal aliens and giving no explanation for this reckless policy change, the Biden administration is demonstrating a blatant disregard for Texans’ and Americans’ safety," he said in a statement.
The White House Press Office did not respond late Tuesday to a request for comment on the lawsuit.
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