Texas Sues, While the Biden Administration Hides ICE Data

To guide the judgments of the courts and the American people, ICE must release the FY 2021 ERO Report

By Andrew R. Arthur on March 17, 2022

On March 15, my colleague Jon Feere explained the problems with ICE’s failure to release its detailed annual Enforcement and Operations (ERO) Report for FY 2021 while releasing its much more opaque ICE Annual Report for FY 2021. Coincidentally, that day the Texas Tribune ran an article explaining how Trump appointees to the federal bench “are helping Texas derail Biden’s immigration agenda”. Here’s how the two articles fit together, and why the ERO Report is so crucial to the interests of justice.

Texas’ Immigration Lawsuits. To its credit, the Texas Tribune admits that lawsuits were a popular tool utilized by Trump’s political opponents to block his various administrative proposals:

During Trump’s four years, California’s attorney general sued his administration 110 times over immigration, environmental policies, consumer rights and other issues. California had an 82% success rate as of Jan. 22, 2021, according to the news organization Cal Matters.

What goes around comes around, so when Biden took the helm — and largely dismantled immigration enforcement at the border and in the interior — it was time for a new set of plaintiffs to go to court in an attempt to ameliorate the harm.

Most of those plaintiffs are from the Texas state government (often joined by other states), and they have been busy filing actions in federal court in the Lone Star State seeking injunctions of Biden’s immigration policies.

The majority of those cases are being headed up by Texas Attorney General Ken Paxton, although Texas Land Commissioner George P. Bush (grandson and nephew, respectively, of former Presidents George H.W. and George W. Bush, and son of former Florida Governor Jeb Bush) has filed a challenge to Biden’s border wall “pause”.

This is not to say that Texas’ challenges to the Biden administration have strictly targeted the president’s immigration policies (there are others that take on mask mandates and the shutdown of the Keystone XL Pipeline), but as the Tribune explains, of the 20 lawsuits Texas has brought, seven were immigration-related.

Of those 20 suits, 16 have been heard by judges appointed by Donald Trump, which is really the focus of the Tribune’s article. That should not be a surprise, however.

The federal trial courts in Texas are broken down into four separate districts. Of the 12 active judges in the Northern District, six were Trump appointees; of the eight in the Eastern District, four were placed there by the 45th president; and of the 18 in the Southern District, five got their jobs thanks to Trump (two are Reagan holdovers).

Trump did not make as strong an impression on the bench in the Western District of Texas: Of the 12 judges there, only three are Trump appointees — which is why you don’t see the state filing immigration suits in El Paso. Still, of 50 U.S. District Court judges in Texas, 18 (36 percent) were installed under the last administration.

“Forum shopping” for a favorable court is a staple of the law (it is practically malpractice if you don’t at least try), but one “expert” cited by the Tribune complains about it in this instance:

I think the real sort of negative long-term problem here is not the implications for any particular immigration policy, but rather the notion that immigration policy is going to be set by whichever district judge gets their hands on it first. ... That's especially problematic when the district judge is being hand-picked by the plaintiff.

I cannot remember many complaining when Trump actions were challenged in the Northern District of California. Every active judge there was appointed by President Obama, and of the nine senior judges (who occasionally hear cases), seven of nine were Democratic appointees. Its jurisdiction stops well north of the border — the southernmost court is in San Jose, which is in the San Francisco Bay area.

That did not stop judges there from issuing injunctions having to do with such border-related issues as asylum claims filed by illegal migrants or the Migrant Protection Protocols (MPP, better known as “Remain in Mexico”).

By the way (and not to get off topic), when the Ninth Circuit “sort of” sustained that judge’s MPP order, its logic was extremely flawed. Under its reasoning, DHS would be required to process every illegal migrant under the “expedited removal” provision in section 235(b)(1) of the Immigration and Nationality Act (INA), which means none could be sent back across the border to await asylum adjudications.

That provision of the INA is clear that such aliens are supposed to be detained until they are removed or granted asylum, but the Biden administration now contends that it can process those aliens under “regular removal” and release them. It’s wrong about that, too, but this case demonstrates a certain “flexibility” among immigrant advocates when it comes to precedent.

Back to the point, however. I am a lawyer (and a former immigration judge) and even I can see that there are problems with allowing courts to set immigration policy. When an administration disregards the law, however, there is little recourse for those affected except to head to the nearest tribunal — particularly if they think they are going to get a sympathetic ear.

ICE ERO Report. Which brings me to the still-missing ICE ERO Report for FY 2021. Feere notes that the report that ICE has released is a poor substitute because it “is a narrative-driven document that includes only a handful of enforcement-related statistics, all of which are intentionally written in a manner that is difficult to analyze and compare to previous years.”

He explains:

The still-unreleased report includes numerous tables and charts, year-over-year and monthly comparisons, and important numerical data — from detainers issued to criminality of aliens arrested to the number of arrests made in the interior of the United States compared to custody-transfer arrests from Border Patrol apprehensions — and would allow for a complete picture of the impact of the Biden administration’s controversial immigration enforcement policies.

Why the ICE ERO Report Is Important. Tellingly, Feere states: “In fact, the administration’s decision to keep this data hidden might be part of a plan to keep the courts in the dark.” Which brings me back to the Texas courts.

One of the cases they are handling is Texas v. U.S. The case was brought by the states of Texas and Louisiana against DHS to block restrictions the Biden administration 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.

At issue are two specific provisions in the INA, one of which requires ICE to take certain criminal aliens into custody as soon as they are released from confinement, while the other mandates that ICE arrest and detain all aliens ordered removed on criminal grounds until they are physically removed.

The DHS restrictions that were in place at the time that matter was initially heard limited (and in certain instances blocked) the ability of ICE officers to comply with these statutory mandates. Accordingly, Judge Tipton enjoined those restrictions.

A three-judge panel of the Fifth Circuit (two Obama appointees and one George W. Bush appointee) limited that injunction, but then the full Fifth Circuit (made up of 12 judges appointed by Republican presidents — including six placed by Trump — and five Democratic appointees) vacated the panel’s order and agreed to hear the case en banc (with all 17 judges participating).

Texas and Louisiana agreed to the government’s request to have the whole matter sent back to Judge Tipton after DHS Secretary Alejandro Mayorkas issued his own (slightly less stringent) ICE enforcement guidelines, and there it sits today.

Needless to say, the Biden administration contends that its approach to immigration enforcement is much more effective than Trump’s, but is it really? As Feere explains, we are only hearing part of the story — the part the president wants us to hear. In the interest of transparency, and to guide the judgments of the courts and the American people, it is time for ICE to release its ERO Report for FY 2021.