On June 10, Judge Drew Tipton of the U.S. District Court for the Southern District of Texas issued an order vacating the Biden administration’s latest non-enforcement guidance, which was issued by DHS Secretary Alejandro Mayorkas on September 30 and captioned “Guidelines for the Enforcement of Civil Immigration Law” (Mayorkas memo). The Fifth Circuit failed to stay that order on June 24, meaning that it will take effect — for now. Of course, a circuit order may be imminent.
Mayorkas Memo and Its Predecessors. The Mayorkas memo is the third Biden administration diktat restricting immigration enforcement. The first was issued on Inauguration Day by then-Acting DHS Secretary David Pekoske (Pekoske memo), while slightly narrower restrictions were issued a month later by Acting ICE Director Tae Johnson (Tae Johnson memo).
All three asserted that DHS had inherent “prosecutorial discretion” not to enforce the laws Congress wrote; each set limits on which facially removable aliens DHS agents and officers were allowed to question, apprehend, detain, prosecute, and remove; and the trio argued that “limited resources” prevented ICE officers from enforcing the law as written.
Like its predecessors, the Mayorkas memo “prioritized” just three classes of removable aliens for enforcement: Spies and terrorists (threats to national security); aliens who entered illegally on or after November 1, 2020 (threats to border security); and aliens who had been convicted of serious crimes (threats to public safety).
The Mayorkas memo essentially reiterated the national security and border security priority findings in the prior two memos.
Unlike the prior two memos, however, Mayorkas’ did not limit the “threat to public safety” priority to aliens convicted of aggravated felonies, but instead expanded the focus to aliens who have engaged in what was termed “serious criminal conduct”.
In that latest memo, the gravity of the criminal offense, its sophistication, the degree of harm caused, whether a weapon was used, and whether the criminal alien is a serial offender all were to go into the determination of whether an offense was serious, and thus a “priority” for enforcement.
Even if the offense was deemed to be serious, however, Mayorkas directed ICE officers and agents to also consider certain “mitigating” factors before taking enforcement action.
Those mitigating factors included whether the alien is young or old; the time that has elapsed since the alien’s conviction (and whether that conviction was vacated or expunged); the alien’s length of presence in the United States; and whether the alien has a mental disability, was a victim of a crime, is eligible for protection or relief, or served, or has an immediate relative who served, in the military or government.
Congress, however, does not require ICE officers to consider things like whether a drug dealing alien is a good dad or has a relief claim. Such factors may play into whether the alien is ultimately eligible for relief, but not whether the alien should be questioned, arrested, and detained to begin with.
Judge Tipton’s Order. Judge Tipton found that the Mayorkas memo violated two provisions of the Immigration and Nationality Act (INA) that require DHS to detain aliens removable on certain criminal grounds.
The first is section 236(c) of the INA, which directs ICE officers to apprehend and hold inadmissible aliens who are removable on any of the criminal grounds of inadmissibility, as well as aliens who entered legally but are removable on most criminal deportation grounds.
The second provision is section 241(a) of the INA. It requires ICE to remove all aliens within 90 days after their removal orders have become final, and to detain them pending removal. For criminal aliens, release under that provision is even more restrictive: “Under no circumstance during the removal period shall [DHS] release an alien who has been found” inadmissible or deportable on criminal grounds.
Citing Supreme Court precedent, Judge Tipton explained that when section 236(c) of the INA was passed in 1996, it was “was enacted ‘against a backdrop of wholesale failure by the INS to deal with increasing rates of criminal activity by aliens’”. Sound familiar?
The court continued, finding:
The failure “to remove deportable criminal aliens” resulted in overpopulated prisons, monetary costs, and increased crime. ... Crucially, “Congress also had before it evidence that one of the major causes of the [then-]INS’ failure to remove deportable criminal aliens was the agency’s failure to detain those aliens during their deportation proceedings.” [Emphasis in original.]
Costs and Threats to the States. Why did the court deem this “crucial”? Because increased costs (both fiscal costs generally and the costs of criminal incarceration) and the heightened risk to their communities posed by criminal aliens who were not detained formed the bases of the state plaintiffs’ standing claims.
Reviewing the evidence, Judge Tipton found that the Mayorkas memo increased the number of criminal aliens and aliens with final orders of removal who were being released into the plaintiff states and into the United States as a whole.
Subsequent Action. As noted, Judge Tipton vacated the Mayorkas memo in its entirety, but he stayed his decision for seven days to give the Biden administration the opportunity to seek a stay from the Fifth Circuit, which it did.
After the Supreme Court issued an opinion limiting class-wide injunctive relief in immigration matters on June 13, Judge Tipton ruled that the Court’s precedent would not have prevented him from issuing his order, but he did extend his own stay of the order for an additional seven days to allow the Biden administration to examine the issues further.
That stay expired on June 24 after the Fifth Circuit failed to act, and DHS has agreed to comply with Judge Tipton’s vacatur. The Mayorkas memo now bears a warning flag at the top, which states:
On June 10, 2022, the U.S. District Court for the Southern District of Texas issued a final judgment vacating Secretary Mayorkas's September 30, 2021 memorandum Guidelines for the Enforcement of Civil Immigration Law (Mayorkas Memorandum). Accordingly until further notice, ICE will not apply or rely upon the Mayorkas Memorandum in any manner.
I seriously doubt that ICE officers hit the streets on Saturday morning en masse to round up removable aliens, but some have likely moved forward in a few borderline cases. That said, given the fact that then-candidate Joe Biden threatened on the campaign trail to fire ICE employees who did not comply with his non-enforcement edicts, most officers are probably taking a “wait and see” approach.
For its part, DHS announced:
During the appeals process, ICE agents and officers will make enforcement decisions on a case-by-case basis in a professional and responsible manner, informed by their experience as law enforcement officials and in a way that best protects against the greatest threats to the homeland.
Respectfully, that does not sound appreciably different from the guidance in the Mayorkas memo, so the degree to which the Biden administration has freed up ICE officers to enforce the law remains to be seen. The Fifth Circuit has shown in the past that its patience with the administration’s non-enforcement regime is wearing thin, so the president and his advisors may be playing with fire.
All of that said, Judge Tipton has not directed ICE to arrest, detain, or deport anybody. He simply stated that the administration could not tie ICE officers’ hands in carrying out their duties. Whether that is a distinction with a difference remains to be seen.
The viability of Judge Tipton’s order may be affected by the Supreme Court's opinion in Texas v. Biden, in which the Court is weighing an order from a different federal district court judge in Texas blocking Mayorkas’ attempts to rescind the Migrant Protection Protocols (MPP), better known as “Remain in Mexico”.
The Court in Texas v. Biden may hold that the so-called “inferior courts” lack the jurisdiction to consider state challenges that seek to force the Biden administration to enforce the INA. Of course, it could also hold that such challenges are perfectly acceptable, and that the administration is violating the law by hobbling immigration-enforcement efforts. A decision should be issued this week.
For the moment, the Biden administration’s guidance preventing ICE officers from enforcing the immigration laws are on hold pending further action from the Fifth Circuit. That court has not been shy about reining in the administration on immigration matters, but it will likely be the Supreme Court that has the final word.