On March 22, Judge Michael Newman of the U.S. District Court for the Southern District of Ohio issued an order preliminarily enjoining, in part, guidance issued by DHS Secretary Alejandro Mayorkas in September that strictly limited ICE enforcement against criminal aliens in the United States. That order goes a long way, but not as far as Judge Newman could — or should — have.
Background on Biden’s ICE Enforcement Restrictions. Mayorkas’ guidance was set forth in a memo captioned “Guidelines for the Enforcement of Civil Immigration Law” (Mayorkas memo). As Judge Newman explains, that memo was tailored to comply with a prior injunction, by Judge Drew Tipton of the U.S. District Court for the Southern District of Texas, of two prior enforcement “guidance” memos.
The first was issued by Acting DHS Secretary David Pekoske on January 20, 2021, captioned "Review of and Interim Revision to Civil Immigration Enforcement and Removal Policies and Priorities" (the Pekoske memo).
The Pekoske memo announced a 100-day review of DHS immigration-enforcement policies, as well as a 100-day hold on almost all removals from the United States (the latter was blocked by Judge Tipton and then expired).
Claiming "limited resources", the Pekoske memo narrowed immigration enforcement to three specified "priorities": spies, terrorists, and other threats to national security; aliens who entered illegally on or after November 1, 2020; and aliens released from incarceration on or after the date of that memorandum who had been convicted of aggravated felonies.
Thereafter, on February 18, 2021, then-Acting ICE Director Tae Johnson issued his own enforcement restrictions, in a memo captioned “Interim Guidance: Civil Immigration Enforcement and Removal Priorities” (the Tae Johnson memo).
The Tae Johnson memo expanded ever so slightly on the class of aliens deemed enforcement priorities in the Pekoske memo. Spies, terrorists, and removable aliens who were not here on October 31 still made the list, but that memo also allowed ICE officers to go after non-detained aggravated felons and certain gang members, if they “pose[] a risk to public safety”.
On August 19, in a case filed by the states of Texas and Louisiana against DHS, Judge Tipton issued an order enjoining certain restrictions in the Pekoske and Tae Johnson memos.
The judicial history gets complicated after that because a month later, a three-judge panel of the Fifth Circuit narrowed Judge Tipton’s injunction. In its decision, the Fifth Circuit noted that new DHS guidance would be issued by the end of September by DHS.
The state plaintiffs in that case then moved for en banc review of that decision, with all 17 Fifth Circuit judges participating. That request for en banc review was granted, and pending consideration of the matter, the circuit court vacated the limitations on Judge Tipton’s order imposed by the three-judge panel of the court.
By that point, of course, the Mayorkas memo had been issued. Because Judge Tipton had not considered it as part of the case, DOJ moved to dismiss their appeal (with the state plaintiffs’ consent), sending the matter back to his court, where a hearing on the Mayorkas memo was held last month.
There are two common threads in the case before Judge Newman (brought by the states of Arizona, Montana, and Ohio and captioned Arizona v. Biden) and before Judge Tipton (Texas v. U.S.): (1) the text of two provisions in the Immigration and Nationality Act (INA), and (2) the costs that the plaintiff states in each matter will have to bear if DHS fails to remove criminal aliens.
Sections 236(c) and 241 of the INA. The two provisions at issue in both Arizona and Texas are sections 236(c) and 241 of the INA.
Section 236 of the INA governs the apprehension and detention of removable aliens. Specifically, section 236(a) of the INA grants ICE officers the power to arrest aliens on warrant, and then to either detain them or release them on bond or what is called “conditional parole”.
Note that “conditional parole” in section 236(c) of the INA is not the same as “parole” under section 212(d)(5) of the INA. The Biden administration’s release of thousands of illegal migrants at the Southwest border monthly under both forms of parole is at issue in a different case with a similar name, Biden v. Texas, which the Supreme Court will hear in April.
DHS’s release authority in section 236 of the INA is not limitless, however. Congress, in section 236(c) of the INA, directed DHS to take aliens removable on certain criminal grounds into custody as soon as they are released from criminal custody, and to hold them.
There are only very limited exceptions to that section 236(c) detention mandate, which are not at issue in the Mayorkas memo or in either case.
Section 241 of the INA governs how DHS removes aliens under final orders of removal from the United States. It gives DHS 90 days to remove those aliens (which can be extended if the alien impedes or fails to cooperate in removal) and directs DHS to detain those aliens pending deportation during that 90-day period.
Congress specifically wanted to make sure that criminal aliens (at least) be detained; section 241(a)(2) of the INA mandates their detention, in no uncertain terms: “Under no circumstance during the removal period shall the Attorney General release an alien” ordered removed on the criminal grounds in the INA.
Judge Newman explains why Congress put those detention mandates into sections 236(c) and 241 of the INA. Both were added to the act in 1996 in response to congressional concerns that the then-INS was releasing criminal aliens, who were then failing to appear in immigration court and for removal.
As the court explained: “Two concerns animated Congress’s eventual action: (1) criminal aliens’ high abscondment rates; and (2) the significant cost criminal alien recidivism imposed on the states and federal government.”
Burden on the States. Which brings me to the burdens on the states resulting from the restrictions on ICE enforcement in the Mayorkas memo. The state plaintiffs in both Arizona and Texas complained that ICE’s failure to arrest and detain criminal aliens was imposing costs on their state coffers, as they are required to supervise criminal aliens who are supposed to be in ICE detention and detain alien criminal recidivists.
DHS argued that the guidelines in the Mayorkas memo actually cut down on criminal alien recidivism, offering a study that purported to show that “undocumented immigrants in Texas commit crimes at a far lower rate than legal immigrants and U.S. Citizens.”
Judge Newman was having none of it, explaining that illegal aliens generally were not the issue — criminal aliens were — and noting:
A 2019 ICE enforcement and removals report determined that
Of the 123,128 ERO administrative arrests in FY 2019 with criminal convictions or pending criminal charges, the criminal history for this group represented 489,063 total criminal convictions and pending charges as of the date of arrest, which equates to an average of four criminal arrests/convictions per alien, highlighting the recidivist nature of the aliens that ICE arrests.
Dryly, he observed: “DHS’s approach to criminal alien recidivism has undergone a significant shift” since 2019. People are usually free to change their minds, but when the federal government does it when making policy without providing a “reasoned explanation” for such change, it is deemed “arbitrary and capricious” in violation of the Administrative Procedure Act (APA).
The Preliminary Injunction in Arizona. Speaking of the APA, Judge Newman found that the Mayorkas memo likely violated that statute and sections 236(c) and 241 as well. Because the state plaintiffs are likely to prevail on the merits of these claims, the court issued a preliminary injunction of certain parts of the Mayorkas memo.
That is where Judge Newman likely did not go far enough. While he held that DHS must detain aliens in removal proceedings who are subject to the detention mandates in section 236(c) of the INA, he did not require ICE to place those aliens into removal proceedings to begin with. Thus, DHS can try to evade the detention mandates in that section of the INA by directing ICE officers not to charge certain aliens with removability.
I believe that is in error (though it’s not clear whether the state plaintiffs requested such relief), because of the way that provision is worded.
Congress explicitly stated that in section 236(c)(1) of the INA that DHS “shall take into custody any alien who” is removable on the enumerated grounds of inadmissibility and deportability “when the alien is released, without regard to whether the alien is released on parole, supervised release, or probation, and without regard to whether the alien may be arrested or imprisoned again for the same offense.”
That is a mandate, and one that the Supreme Court has held bars aliens described therein from seeking release even if ICE did not take them into custody right away. If that provision is binding on the alien, it should be binding on the agency, too.
That said, Judge Newman did bar DHS from picking and choosing which aliens under final orders it would detain, and which it would remove. As he correctly held, Congress did not give DHS latitude in that department, the Mayorkas memo notwithstanding.
The Biden administration may seek a stay of that order from the Sixth Circuit, and likely will. Of the 16 active judges on that court, 11 were appointed by Republicans (six by President Trump) and five by Democrats (two Biden appointees are pending). That does not mean that the state plaintiffs are likely to prevail, but Judge Newman did write a persuasive order.
That said, depending on its ultimate decision, the Supreme Court’s order in Biden v. Texas may influence the ultimate outcome in Arizona. The facts and issues are different (Biden involves DHS’s attempted termination of the Migrant Protection Protocols, MPP or “Remain in Mexico” for illegal migrants at the border), but both involve the application of mandatory language in the INA.
The Supreme Court may give the Biden administration a lot of latitude when it comes to implementing the immigration laws — but then again, it may not. I referred to Biden as the “most significant immigration case — ever” for exactly this reason.
For now, the Biden administration has been enjoined by a federal judge in Ohio from releasing detained aliens who are removable on criminal grounds, and from picking and choosing which aliens under final orders of removal it will release and remove. For purposes of the rule of law, that part is good, but the court’s order could have gone so much further.