Full Fifth Circuit to Review Biden’s Interior Enforcement Restrictions

I called it, and now it will be interesting to see whether ICE arrests more criminal aliens

By Andrew R. Arthur on December 4, 2021

On November 30, the Court of Appeals for the Fifth Circuit agreed to rehear, en banc, the Biden administration’s appeal of an August 19 order in Texas v. U.S., enjoining restrictions on ICE officers in their enforcement of the immigration laws against criminal aliens. I am not psychic, but I called this one in a September 22 post after a three-judge panel of the circuit court issued its order limiting that injunction on September 15.

This is one of a series of cases that the state of Texas, in conjunction with various other states, has filed in federal courts in the Lone Star State to block DHS from placing limits on immigration enforcement.

This latest order is particularly significant, however, because the Fifth Circuit vacated the limitations the three-judge panel of the court had earlier placed on the original injunction. Why that is significant, however, requires some explanation.

Texas v. U.S. As I explained in an August post analyzing the initial injunction, Texas was brought by the states of Texas and Louisiana against DHS to block restrictions it had placed on ICE enforcement of the immigration laws in the interior of the United States. That case was initially considered by Judge Drew Tipton of the U.S. District Court for the Southern District of Texas.

Overview of ICE Enforcement Restrictions. At the time Judge Tipton issued his order, those restrictions were set out in a memo 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 discussed each several times in the past, but long story short, they significantly limited the class of removable aliens that ICE would be able to question, let alone detain, prosecute, and remove.

Those memos have been subsequently rescinded by a new one (“Guidelines for the Enforcement of Civil Immigration Law”), issued on September 30 by current DHS Secretary Alejandro Mayorkas. That one was effective November 29 — the day before the most recent Fifth Circuit ruling.

My analysis of that memo was included in an October post captioned “New Mayorkas Memo Further Guts Immigration Enforcement”, so you have an idea which way it goes toward ensuring that the immigration laws are faithfully enforced.

To complicate matters even further, on October 27, Mayorkas issued a separate memo captioned “Guidelines for Enforcement Actions in or Near Protected Areas”.

As I explained in a November 5 post, that memo attempts to create a de facto amnesty for the vast majority of criminal aliens in the United States, using as a guide state laws establishing "drug-free zones" intended to protect children from drugs.

To quantify that point, in a November 23 post, my colleague Jon Feere offered a “visual representation” of how this most recent policy guidance operates, using a map showing all of the places between the White House and Georgetown in Washington, D.C., where aliens would be protected from enforcement. Aside from highways, there are not many areas ICE would be allowed to operate in our Nation’s Capital.

The States’ Claims and Judge Tipton’s Injunction. In Texas, the state plaintiffs had alleged that DHS’s failure to detain and remove criminal aliens posed a danger to their communities and increased the incarceration costs for each.

After hearing those claims and the administration’s response, on August 19 Judge Tipton blocked restrictions the Biden administration had imposed on ICE officers in the Pekoske and Tae Johnson memos, which essentially prohibited those officials from even questioning (let alone detaining and removing) most removable criminal aliens.

According to the court, the problem with the Biden administration’s ICE restrictions was that they flew in the face of the agency’s mandatory duties under two separate immigration statutes.

The first is section 236(c) of the Immigration and Nationality Act (INA). That provision requires DHS to “take into custody” — and hold — every alien inadmissible on criminal grounds in section 212(a)(2) of the INA, and most aliens deportable on similar grounds in section 237(a)(2) of the INA, as soon as those aliens are released from incarceration for their crimes.

The second statute is section 241(a)(2) of the INA. It requires DHS to (1) remove every alien under a final order of removal in 90 days; (2) detain those aliens pending removal; and (3) “[u]nder no circumstance” release the ones who are removable on criminal grounds.

As Judge Tipton recognized, those statutes are mandates with which the Biden administration must comply. He found, however, that the restrictions it had imposed on ICE officers were openly flouting those statutory requirements.

Accordingly, the court enjoined the administration from enforcing the provisions in the Pekoske and Tae Johnson memos that had restrained ICE officers from questioning, arresting, and detaining the aliens described in those sections of the INA.

The Initial Fifth Circuit Order. Judge Tipton stayed his injunction until August 30 to give the government the opportunity to appeal, which it did, to a three-judge panel of the Fifth Circuit.

The Biden administration had indicated that it would be issuing superseding guidance for ICE officers by the end of September (Mayorkas’s September 30 memo), but the circuit court nonetheless considered the government’s request to stay Judge Tipton’s appeal based on the then-current ICE guidance, issuing its decision on September 15.

That three-judge circuit panel 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.

With respect to all other criminal aliens, the court held, the Biden administration had discretion to direct its ICE officers to detain them for removal proceedings, or not.

The Decision to Seek en Banc Review. As I discussed in my September 22 post, Texas and Louisiana at that point had three choices: Allow the Fifth Circuit panel’s order to stand and continue to litigate the issues in the case before Judge Tipton, seek a rehearing before all 17 judges of the Fifth Circuit as a whole (en banc), or seek review on certiorari from the Supreme Court.

I explained therein why the second choice — en banc review — was the best option:

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 [] 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.

In addition, the Fifth Circuit is an unusually good one for the plaintiff states’ appeal. Twelve of the judges 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 panel decision in Texas, 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.

That does not mean — in any way — that their decision was influenced by politics. Many Republican appointees, however, are often chosen because they are “textualists”. As Ballotpedia explains:

Textualism is a method of statutory interpretation whereby the plain text of a statute is used to determine the meaning of the legislation. Instead of attempting to determine statutory purpose or legislative intent, textualists adhere to the objective meaning of the legal text.

The basis of the states’ claims is that DHS under the Biden administration is not conforming to the text of the INA, as explained above. If at least nine of the 17 judges of the Fifth Circuit agree with Judge Tipton’s analysis — which was a textualist one — the states would prevail.

The Fifth Circuit en Banc Decision and Its Consequences. On October 7, the plaintiff states did, in fact, seek rehearing en banc, which as noted was granted by the court in its most recent order.

As I stated at the outset, that order (which was issued per curiam, that is, unsigned and for the whole court) vacated the three-judge panel opinion, meaning that Judge Tipton’s order goes back into effect. Under Fifth Circuit rules, that is the effect of an order granting rehearing en banc —“[u]nless expressly provided”. No exception was made in this case.

Law360 reported (behind a paywall) that in issuing its order, the Fifth Circuit declined to hold off on considering the appeal en banc while the September 30 Mayorkas memo was implemented, as the administration had requested. Likely with good reason.

The restrictions in that memo are a slight improvement from the ones in the Pekoske and Tae Johnson memos. Each limits ICE enforcement by setting forth three “priorities” for agency action: national security threats, border security threats (aliens who entered illegally after the arbitrary date of October 31, 2020), and public safety threats (usually, but not exclusively, criminals).

Unlike the Tae Johnson memo, Mayorkas’ doesn’t create an onerous “preapproval” process with which officers must comply to act on cases that don’t fall within one of these three priorities. Further, that latest memo asserts that it “does not compel an action to be taken or not taken”.

That said, it relies heavily on DHS’s authority to use its “prosecutorial discretion” in any category of case, and fails to note that, under the INA provisions above, certain enforcement actions are mandatory. If you are going to prioritize immigration enforcement, congressional mandates are a good place to start.

Unmentioned in all three of these cases thus far is the January 2020 promise by then-candidate Joe Biden to fire ICE agents who did not comply with his restrictions on immigration enforcement if he were to become president, which I discussed in a post that March.

Comments made by Donald Trump on the campaign trail formed the basis of an untold number of opinions enjoining his immigration policies. I am not saying that turnabout is fair play, but it’s difficult to square Biden’s rather intemperate dismissal threats with Mayorkas’s assertion in his September 30 memo that his stated priorities do not cabin the ability of ICE officers to act against other aliens.

That is the definition of a “chilling effect”, and I trust that Biden’s statements have cooled the ardor of any number of ICE officers to enforce the law. I also trust that the plaintiff states will bring them up as the administration attempts to distinguish Mayorkas’s September 30 memo from its predecessors.

Judge Tipton’s order contained a requirement directing the government to report on the number of criminal aliens ICE released or failed to detain. Now that this order is back in effect, it will be interesting to see the effect that it has on immigration enforcement.