Fifth Circuit Trims Order Requiring DHS to Enforce the Law

But they missed a key point: congressional history

By Andrew R. Arthur on September 22, 2021

As I reported last month, on August 19, Judge Drew Tipton of the U.S. District Court for the Southern District of Texas blocked restrictions the Biden administration had imposed on ICE agents in detaining and removing criminal aliens. On September 15, a three-judge panel of the Fifth Circuit limited the scope of that order, but overlooked Congress’s express intentions in granting the government’s request for a stay pending review. The plaintiffs — the states of Texas and Louisiana — should ask all of the judges on the court to review the matter.

Biden’s Limitations on ICE Enforcement. The administration’s ICE restrictions are set forth in two documents: A memo issued by then-Acting DHS Secretary David Pekoske on January 20, captioned "Review of and Interim Revision to Civil Immigration Enforcement and Removal Policies and Priorities” and a February 18 memo from Acting ICE Director Tae Johnson, captioned “Interim Guidance: Civil Immigration Enforcement and Removal Priorities”.

I have described and analyzed both of those memos several times in the past. They constrain ICE officials in questioning, arresting, detaining, prosecuting, and removing aliens with three exceptions: spies and terrorists; aliens who entered illegally after the arbitrary date of October 31; and aliens convicted of “aggravated felonies” and certain gang members, provided they are “determined to pose a threat to public safety”.

Simply put, under the guise of “priorities” and “limited resources”, the Biden administration has shut down nearly all immigration enforcement in the interior, granting de facto amnesty to most illegal aliens, generally, and large numbers of criminal aliens in particular.

Court of Appeals for the Fifth Circuit. Of the 17 judges on the Fifth Circuit, 12 were appointed by Republican presidents: two by Ronald Reagan, four by George W. Bush, and six by Donald Trump. Two were appointed by Bill Clinton and three were Barack Obama appointees.

The Fifth Circuit decision, however, was authored by Judge Gregg Costa, who was appointed to the court in 2014 by President Obama, and he was joined by another Obama appointee (Judge James Graves), and Bush appointee Judge Leslie Southwick.

Texas v. United States at the District Court. The district court decision was based on two provisions in the Immigration and Nationality Act.

Section 236(c) of the INA requires ICE officers to detain and hold any alien who is released from criminal custody if the alien is seeking admission or entered illegally and is removable on any of the criminal grounds of inadmissibility, or if the alien entered legally and is removable on all but one of the criminal deportation grounds.

Section 241(a) of the INA 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 is even restricted: “Under no circumstance during the removal period shall [DHS] release an alien who has been found” inadmissible or deportable on criminal grounds.

The fact that neither ICE nor DHS had the discretion to ignore Congress’s mandate to arrest and detain criminal aliens in the two provisions was at the heart of Judge Tipton’s decision. His decision focused on the operative word in both statutes, “shall”.

With respect to criminal aliens, section 236(c)(1) of the INA states that DHS “shall take” them into custody. Section 241(a)(2) of the INA states: “During the removal period, [DHS] shall detain” aliens removable on certain criminal grounds.

After an exhaustive analysis of those provisions, Judge Tipton concluded that the word “shall” found in each “means ‘must,’ imposing on the Government a duty to detain certain criminal aliens and those with final orders of removal when released [from criminal confinement] and during the removal period, respectively.”

Accordingly, he enjoined portions of that guidance that required ICE officers to seek permission before questioning, arresting, and detaining aliens who were covered by those provisions.

The Fifth Circuit Narrows the Injunction in Texas. Judge Tipton stayed his injunction until August 30 to give the government the opportunity to appeal. The Biden administration indicated that it would be issuing superseding guidance for ICE officers by the end of September, but the circuit court nonetheless considered the government’s request to stay Judge Tipton’s appeal based on the current guidance.

The Fifth Circuit court concluded that, notwithstanding the mandatory language in the two provisions, Congress did not intend to limit immigration officials’ prosecutorial discretion, that is, “to decide who should face enforcement action in the first place.”

Because of that, the Fifth Circuit panel concluded that ICE was only required under section 236(c) of the INA to detain “prisoners with qualifying convictions against whom ICE has lodged a detainer”, and under section 241(a)(2) of the INA to detain aliens subject to removal orders.

For all other criminal aliens, the court held, Biden administration ICE officials have the discretion to direct their officers to detain them for removal proceedings, or not.

Given their way, most ICE officers would choose to detain every criminal alien they encounter, and especially those who are pending release from state and federal criminal confinement.

The only reasons they cannot do so are: (1) there are a lot of criminal aliens and a limited number of ICE officers; (2) sanctuary jurisdictions refuse to share release information for criminal aliens, so ICE doesn’t know to pick them up; and (3) the Biden administration won’t let them.

In any event, however, the circuit court narrowed Judge Tipton’s injunction to two groups of aliens: criminals released from criminal confinement for whom ICE has issued a detainer, and aliens under final orders of removal.

In its “guidance”, however, the Biden administration has limited the ability of ICE officers to lodge detainers against criminal aliens serving federal, state, and local time, so the effect of that circuit court order as it relates to section 236(c) of the INA is even more limited in its scope than it would appear.

The Illegal Immigration Reform and Immigrant Responsibility Act of 1996 (IIRIRA). The issue of whether the plaintiffs in this case (the states of Texas and Louisiana) can seek to force the Biden administration to detain criminal aliens under section 236(c) of the INA turns on whether Congress has mandated that those aliens be detained. Although the circuit court concluded that it did not, the legislative history for that act says otherwise.

Sections 236 and 241 were added to the INA by Congress in the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 (IIRIRA). IIRIRA was enacted as Division C of Public Law 104-208 (Sept. 30, 1996), the Omnibus Consolidated Appropriations Act for 1997.

I have explained such omnibus bills in the past, but in essence they are primarily spending bills to cover executive-level departments for which individual spending bills have not been passed before the fiscal year ends (September 30). Other pending legislation having nothing to do with congressional appropriations is often attached to those omnibus bills.

Unlike most legislation that is included in omnibus bills though, IIRIRA, as H.R. 2202, had already passed both houses of Congress prior to its inclusion in that bill.

And it had been reported out of a conference committee to resolve differences in the House and Senate versions of the bill. While the conference committee report for H.R. 2202 (H. Rept. 104-828) was passed by the House on September 25, 1996, it was not voted on in the Senate before IIRIRA was included in what would become Public Law 104-208.

That’s not because there was no agreement on the version of the bill that was reported out of conference — it’s because the Omnibus Consolidated Appropriations Act for 1997, as H.R. 3610 (laws have bill numbers before they are signed by the president, at which point they become “public laws”) was passed by the House four days (September 28) and by the Senate six days (September 30) after the conference report for H.R. 2202 was agreed to (September 24).

H.R. 3610 was simply a more efficient vehicle to pass IIRIRA, which is apparent from looking at the conference report for that bill: There is no explanation whatsoever for Division C therein — IIRIRA — because that bill was explained in its own conference report. In other words, if you want to know Congress’s intentions for IIRIRA, look at IIRIRA’s conference report.

Section 236 of the INA was section 303(a) of IIRIRA, and its text in H.R. 3610 (and in current law) is identical to that in the conference report for H.R. 2202.

Crucially, the conferees explained: “New section 236(c) provides that the Attorney General [now DHS] must detain an alien who is inadmissible under section 212(a)(2) or deportable under new section 237(a)(2).” (Emphasis added.)

So yes, as Judge Tipton held, “shall” means “must” for purposes of ICE’s duty to detain criminal aliens under that provision, and the Biden administration lacks “prosecutorial discretion” to not arrest and detain the criminal aliens covered therein. Legislative history rarely gets clearer than the conference report on this point.

Note that the conference report for IIRIRA as H.R. 2202 was bipartisan: There were Democratic conferees who did not sign it, but Democratic Sen. Dianne Feinstein (Calif.) — who still sits on the Senate Judiciary Committee — did.

Next Steps. Texas and Louisiana now have three choices: They can allow the Fifth Circuit’s order to stand and continue to litigate the issues in the case before Judge Tipton; they can seek a rehearing en banc before the Fifth Circuit as a whole; or they can seek review on certiorari from the Supreme Court.

With due respect to the panel that issued the decision in Texas, I think that the second option is the best. Simply put, 12 judges who were appointed by Republican presidents are more likely to appreciate that the current circuit court order allows a president to ignore Congress’s clear direction to arrest and detain criminal aliens than two on the panel who were appointed by the Obama administration.

This is not just a political point about judicial philosophies of jurists, however.

In its order, the Fifth Circuit noted that, “while the district court’s interpretation of these statutes is novel, executive branch memos listing immigration enforcement priorities are not.” In support of this point, it referenced a 2017 law review article “listing seven DHS, ICE, or INS memos issued from 1997 through 2014 that ‘set forth basic guidelines ... to follow in making prosecutorial discretion determinations’”.

Five of those memos were issued by Democratic administrations (the most restrictive by the Obama administration, as I explained in February and will expound on below), and two under President George W. Bush.

The Bush memos were extremely limited in their scope: One from November 2007 had to do with taking nursing mothers into custody; the other was guidance from ICE’s de facto general counsel to the agency’s lawyers — who represent the government in immigration court — on exercising prosecutorial discretion generally. The latter was largely superfluous, speaking as a former INS prosecutor.

By comparison, a memo issued two weeks after the 2014 midterm elections by Obama’s then-DHS Secretary Jeh Johnson was virtually a de facto amnesty for most removable aliens in the United States (as I explained in that February post).

Want proof? ICE interior removals fell from 102,224 in FY 2014 (before that memo was issued) to 69,478 in FY 2015 — a 32 percent decrease. They fell again in FY 2016, to 65,322, or just 64 percent of what they had been two years prior.

The Biden administration’s guidance is even more restrictive than Johnson’s November 2014 memo, as I again explained in February.

An en banc review by the full Fifth Circuit would allow the court to address the issue of the difference between “prosecutorial discretion” — that is, the inherent authority of law enforcement agencies not to enforce the law in uniquely meritorious cases — and de facto amnesty.

That touches on the constitutional question of who gets to make the laws when it comes to immigration: Congress or the president. Under our constitutional system, it’s Congress, but the Obama-era memos referenced by the Fifth Circuit reflect an increasing slide toward executive nullification of congressional mandates. The Biden guidance is the apotheosis of that process.

Panels (outside of activist judges in the Ninth Circuit) rarely get to those constitutional issues. Seventeen judges considering an issue at once, however, do.

Where Congress has stated that ICE must detain and remove certain aliens, that’s what should happen. The Biden administration, however, is not even paying lip service to those congressional mandates. While a single three-judge panel of the Fifth Circuit has allowed the administration to get away with it (in part), expect either the circuit court as a whole or the Supreme Court to delve more deeply into the simple question of when “shall” means “must” when it comes to taking alien criminals into custody.