Was the Government Frank with Judge Tipton on the Reasons for the 100-Day Removal 'Pause'?

And with the American people? Proof of a tie to Covid-19 must be presented

By Andrew R. Arthur on February 3, 2021

I noted last week that Judge Drew B. Tipton of the U.S. District Court for the Southern District of Texas issued a temporary restraining order (TRO) blocking implementation of a 100-day "pause" on the removal of most aliens subject to final orders of removal, announced by DHS on January 20. Review of that decision, and of the memorandum announcing the pause, raises the question of whether the government has been frank about the reasons for that pause, both with Judge Tipton and the American people.

Here is the exact language from the memorandum, explaining the need for that "pause":

In light of the unique circumstances described above, DHS's limited resources must be prioritized to: (1) provide sufficient staff and resources to enhance border security and conduct immigration and asylum processing at the southwest border fairly and efficiently; and (2) comply with COVID-19 protocols to protect the health and safety of DHS personnel and those members of the public with whom DHS personnel interact. In addition, we must ensure that our removal resources are directed to the Department's highest enforcement priorities. Accordingly, and pending the completion of [a review of enforcement policies and priorities], I am directing an immediate pause on removals of any noncitizen with a final order of removal (except as noted below) for 100 days to go into effect as soon as practical and no later than January 22, 2021.

The "unique circumstances" are defined earlier in the memorandum, as follows: "The United States faces significant operational challenges at the southwest border as it is confronting the most serious global public health crisis in a century."

We are all, to one degree or another, facing "significant operational challenges" in our daily lives from "the most serious global public health crisis in a century", so that assertion is facially valid, even if it does not logically make much sense in this context.

Judge Tipton considered the foregoing wording in his decision, parts of which he specifically referenced in concluding that the pause is "arbitrary and capricious" in violation of the Administrative Procedure Act (APA). It is unclear what exactly the government argued with respect to the logic that Covid-19 is a factor requiring DHS to pause almost all removals, but it had to have been along the same lines.

The court was not buying it, holding:

It remains unknown why a 100-day pause is needed given the allegedly "unique circumstances" to which the January 20 Memorandum alludes. Indeed, despite such unique circumstances, DHS did not state or explain why 100 days specifically is needed to accomplish these goals. [Emphasis in original.]

Here's the problem: BuzzFeed News reported that then-candidate Biden's campaign had promised that there would be a "100 day moratorium on any deportations of people already in the United States" on February 22. In fact, the candidate had made a similar identical pledge at a CNN town hall in Nevada on February 20, when he stated:

We have a right to protect the border. But the idea — and by the way, nobody — and some of you are going to get mad at me with this — but nobody is going to be deported in my first 100 days until we get through the point that we find out the only rationale for deportation will be whether or not — whether or not you've committed a felony while in the country.

Lest you have forgotten the most critical issues at the time that Biden made those statements, the words "Covid-19", "coronavirus", "China", "Wuhan", and "pandemic" never came up at the Nevada town hall.

This is not to say that a pandemic was not a possibility last February. In fact, in a USA Today op-ed from January 27, 2020, Biden questioned then-President Donald Trump's ability to handle a pandemic, noting:

The outbreak of a new coronavirus, which has already infected more than 2,700 people and killed over 80 in China, will get worse before it gets better. Cases have been confirmed in a dozen countries, with at least five in the United States. There will likely be more.

And, on January 31, 2020, Biden stated: "You know we have right now a crisis with the coronavirus, emanating from China. ... This is no time for Donald Trump's record of hysteria and xenophobia — hysterical xenophobia — and fearmongering to lead the way instead of science."

His exact meaning, however, was and is not clear. That same day, Trump's secretary of Health and Human Services declared a public health emergency and barred the entry of most foreign nationals who had traveled to China (the initial source of Covid-19). Biden made his statements in Iowa shortly after those announcements, but it is not clear that he was making them in response to the announcements.

The next day, though, he tweeted:

He had to have known about the public health emergency and China travel ban at that point.

It was not, however, until March 11 that the UN World Health Organization declared a Covid-19 pandemic, and two days later that Trump announced a national emergency in connection with the pandemic.

But Biden did not tie his promise of a 100-day pause in removals to the exigencies of a pandemic (which had not yet been declared) in his CNN town hall, or in his statement that he would implement such a moratorium two days later. That statement was issued in conjunction with the Latino Victory Fund, again as a tweet:

In other words, candidate Biden promised a 100-day moratorium last February for reasons that were unrelated to the Covid-19 pandemic (to assess whether those subject to removal had committed a felony in the United States in one instance, and "to support immigrant communities" in the other). And yet, the Covid-19 pandemic is one of the main reasons that DHS advanced as a reason for that "pause".

There is more. Candidate Biden set forth his immigration proposals in two documents: his "Plan for Securing our Values as a Nation of Immigrants"; and the "Biden-Sanders Unity Task Force Recommendations". The former does not reference a 100-day moratorium on removals, but the latter does. Here is what it says, under the heading "Undoing the Harms of the Trump Administration and Righting the Wrongs":

Enact a 100-day moratorium on deportations of people already in the United States while conducting a full-scale study on current practices to develop recommendations for transforming enforcement policies and practices at ICE and CBP.

That is the sum total of the proposal in that document, which was issued on July 8, 2020. The pandemic was very real on that date (there were 64,914 new COVID cases that day according to the CDC, and 991 deaths). Despite these facts, the pandemic is not given as a reason for that moratorium, which instead (as noted) is tied to "a full-scale study on current practices to develop recommendations for transforming enforcement policies and practices at ICE and CBP".

Now, facts on the ground change with time, and it is possible that the pandemic is now a main reason DHS believes that it requires a 100-day pause in removals, as stated in the January 20 memorandum (although, like Judge Tipton, the connection between the two escapes me). But it is incumbent on DHS and the administration to present all of the documents that it prepared in advance of the issuance of that memorandum to establish that to be true.

Because there are a lot of facts suggesting that the 100-day removal moratorium was simply issued to keep a promise made on the campaign trail, for reasons that had nothing to do with Covid-19, one of its main — and professed — purposes.