On August 19, in a suit filed by the states of Texas and Louisiana against DHS, Judge Drew Tipton of the U.S. District Court for the Southern District of Texas issued an order enjoining restrictions that the Biden administration imposed on immigration agents in their enforcement of the immigration laws against criminal aliens. I would like to say that’s the final word on the administration’s efforts to block immigration enforcement, but it’s more likely just the latest chapter in an ongoing, 10-plus-year saga.
Those 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. The Pekoske memo limited DHS’s civil immigration enforcement priorities to three groups: spies and terrorists; aliens who entered illegally or were not present after the arbitrary date of October 31; and incarcerated aliens convicted of “aggravated felonies” who are “are determined to pose a threat to public safety”.
The restrictions in that memo limited immigration officers’ ability not only to remove aliens who were not a priority, but even to stop and question them.
The Pekoske memo also placed a 100-day moratorium on removals, but Judge Tipton issued a temporary restraining order of that moratorium on January 26.
The Tae Johnson memo expanded on those priorities ever so slightly. Spies, terrorists, and removable aliens who were not here on October 31 still made the list, but the February 18 guidance also included non-detained aggravated felons and certain gang members, if they “pose a risk to public safety”.
In a July 2 post discussing a separate lawsuit (filed in federal court in Galveston by local sheriffs and an association of ICE officers), I explained how those memos contravened mandates to DHS generally and ICE in particular in the Immigration and Nationality Act (INA).
Specifically, section 236(c) of the INA requires ICE officers to detain and hold any alien who is released from criminal custody if the alien entered illegally and is removable on any of the criminal grounds of inadmissibility, or if the alien entered legally and is removable on most or all of the criminal deportation grounds.
That means that ICE is required to arrest and hold nearly all removable criminal aliens when they are released from criminal confinement — not just those who have been convicted of aggravated felonies. This includes aliens with convictions for serious drug crimes, domestic violence offenses, and crimes involving moral turpitude.
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 operative word in both statutes for purposes of Judge Tipton’s latest order is “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 the alien” (in addition to the noted, narrower restrictions on DHS in releasing criminal aliens).
After an exhaustive analysis of those provisions, their legislative history, and controlling precedent, Judge Tipton concluded that the “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 and during the removal period, respectively“.
That means ICE officers have to arrest and detain those aliens, and that the administration cannot stop them from doing so, as it attempted in the Pekoske and Tae Johnson memos.
The Biden administration contended, however, that it had the “discretion” to place those restrictions on immigration enforcement. I would say that Judge Tipton made quick work of that argument, but his analysis ran 14 pages.
To begin with, he explained: “The Government’s suggestion that the Executive’s discretion is so significant that it may, in effect, dispense with laws has significant implications for the separation-of-powers system enshrined in the Constitution.”
He then provided a thorough analysis of the executive’s power to dispense with laws and a history of prior attempts to prevent the government from doing so, beginning with King James II (1685-1688) to the present day, before concluding that “the Court is hard pressed, at this early stage of the litigation, to see how the Government can suggest that the Constitution confers upon the Executive the ‘discretion’ to ignore clear congressional commands contained in” sections 236(c)(1) and 241(a)(2).
When it comes to immigration in this country, Congress makes the rules, except when it doesn’t. But if Congress has included an express mandate in the INA, as it did in the two sections of the INA at issue, the executive must carry them out.
That 160-page order contains many important points concerning the ability of the States to sue the executive to force compliance with the law, the threats that criminal aliens pose, and the manner in which those memos constrain ICE agents in enforcing the INA.
The mandatory nature of sections 236(c)(1) and 241(a)(2) and the executive’s lack of discretion to deviate from the mandates therein, however, are the key ones.
This decision was a long time coming, and as noted will not be the last word. In a February 15 post, I explained how, beginning in early 2011, the Obama administration and then the Biden administration had attempted to fall back on the argument that ICE had “limited resources” and thus had to “prioritize” arrests, detentions, and removals as an excuse to not enforce the law in one manner or another.
Thus far, those efforts have been expansive, continuously restraining enforcement to limit it to an ever more limited number of aliens. Those efforts are a de facto amnesty for the aliens placed outside of ICE’s ever-narrowing “priorities”.
And, up until Judge Tipton issued his August 19 order, they were successful. Two factors paved the road for that decision.
The first was a challenge by Texas and several other states to block the implementation of the Obama administration’s “Deferred Action for Parents of Americans and Lawful Permanent Residents” (DAPA), which was essentially an administrative amnesty.
In the underlying litigation, the State of Texas was found to have “standing”, that is the right to sue to seek enforcement of the INA and to prevent attempts to subvert it.
In 2015, the Fifth Circuit Court of Appeals affirmed an injunction of DAPA’s implementation that had been issued earlier that year by a different U.S. district court judge in Texas, and in 2016, an evenly divided Supreme Court affirmed the Fifth Circuit’s judgment.
Those decisions made clear that states could sue when the executive branch deliberately refused to enforce the immigration laws or attempted to exercise authority Congress did not give it in the INA.
The second factor was the significant case law that emerged from numerous suits that were filed to block various immigration programs that President Donald Trump attempted to implement to deter fraud and constrain illegal immigration.
The most notable of those cases was the Supreme Court’s 2020 decision in DHS v. Regents of the University of California.
In Regents, a number of institutions, individuals, and groups sued the Trump administration over its decision to wind down the Deferred Action for Childhood Arrivals (DACA) program. The Court held that the administration’s decision to end that program was arbitrary and capricious, in violation of the Administrative Procedure Act (APA).
Some of the immigration plaintiffs in the various challenges against the Trump administration were successful, some ultimately weren’t, but that litigation developed a robust body of precedent for applying the APA to immigration. By my count, Judge Tipton cited Regents alone six times.
States and other entities that are suing the Biden administration have also learned another lesson from those who challenged Trump’s immigration initiatives — where to sue.
For example, that court is nowhere near a land border (three of the courthouses are in the Bay Area, the fourth much further north in Eureka), but plaintiffs in 2018 were still able to block an interim final rule that would have barred aliens from receiving asylum if they were subject to a presidential proclamation suspending or limiting entry into the United States across the Mexican border.
It makes sense for Texas to sue the Biden administration over its immigration initiatives in a federal court in the Lone Star State, and many of that state’s federal judges are Republican appointees, so it is good legal strategy to sue in certain courts there, too.
Respectfully, however, this is no way to run a railroad. As noted, first the Obama administration and now the Biden administration has pushed the non-enforcement envelope further and further, attempting to administratively grant the amnesty that has eluded them legislatively.
It was inevitable that some judge was going to block those ever-expanding efforts, as Judge Tipton has done. Undoubtedly, the Biden administration will seek to overturn the judge’s order, but the Fifth Circuit, if anything, became more conservative over the four years of the Trump administration than it was when it affirmed the DAPA injunction back in 2015.
And the Supreme Court added three new conservative justices since it issued its four-to-four decision in that case following the death of Justice Scalia.
Chief Justice John Roberts may want to keep out of politics, but sometimes political issues make their way to the Court. None is more political than an effort by states to seek federal protection for their citizens from criminal aliens that the executive refuses to provide.
Of course, Judge Tipton cannot force any ICE officer to question, arrest, detain, or deport any criminal alien. In lieu of that, however, the court is requiring proof that ICE is complying with its order, including the “guidance, protocols, or standards controll[ing] the detention of aliens in light of the fact that” it enjoined the Pekoske and Tae Johnson memos.
The judge also wants a monthly count of the number of aliens known to the government who are subject to detention under section 236(c) of the INA who were released or not detained — including those aliens’ last known addresses and the crimes for which they were convicted.
Finally, he wants a monthly tally of aliens under a final order of removal and subject to detention and removal under section 241(a) of the INA, the addresses of any aliens who weren’t detained pursuant to that provision, the reason why they were not detained, and — get this—the name of the person who made the decision not to detain them.
That latter demand — in particular — will get some attention from those in power at DHS and in the administration, and thanks to the judge’s disclosure demands, the rest of us will get know what the Biden administration is deliberately not doing when it comes to enforcing the law.
The last two Democratic administrations have increasingly restricted ICE enforcement. The Biden administration finally took that effort too far, and thanks to evolving case law, two states were able to convince a federal judge that he should block the president’s efforts to grant de facto amnesty to criminal aliens. That injunction may not stick, but the odds are in the states’ favor, thanks to favorable precedent and an exhaustive 160-page order from Judge Drew Tipton.