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Judge blocks Biden policy narrowing focus of deportations

The states of Arizona, Montana and Ohio won a preliminary injunction on Tuesday enjoining a Biden administration immigration policy that narrows the Department of Homeland Security's deportation focus to immigrants deemed to be dangerous.

The guidance, initially instituted on an interim basis by President Joe Biden in January 2021, instructed DHS officials and officers of Immigration and Customs Enforcement, or ICE, to "focus their civil immigration enforcement efforts on noncitizens who present a threat to national or border security or public safety."

Texas immediately challenged the guidance in federal court and eventually won an injunction to prevent its enforcement, although that injunction was stayed by a ruling from a panel of appeals court judges.

While its temporary guidelines were being litigated, DHS made several changes and eventually passed permanent guidance for prioritized removal in September 2021.

It was this permanent rule that prompted the lawsuit by Arizona, Montana and Ohio, which was filed in Dayton federal court and assigned to U.S. District Judge Michael Newman, an appointee of Biden's predecessor Donald Trump.

The rule instructs immigration officials to conduct extensive analysis of an illegal immigrant's criminal history, mental and physical health, length of time in the country and various other factors before making a removal determination.

The states claimed this type of discretionary "balancing test" exceeded the scope of authority granted to DHS and ICE, and causes extensive harm by allowing more dangerous illegal immigrants within their borders.

DHS argued the states' financial harm is speculative at best and that its guidance ensures the most dangerous criminals will be removed from the country.

Newman sided with the states Tuesday, citing evidence of increased costs for Arizona that stemmed directly from a decrease in removal rates that required the state to either maintain custody of the immigrants or monitor them upon their release from prison.

In his analysis of the guidance against the backdrop of federal immigration law, Newman emphasized the federal government looks to inject flexibility into statutory language where there is none.

"Noncitizens with final removal orders," he wrote, "especially those meeting the criminal alien definition, must be detained during the removal period. Congress left no flexibility for DHS to release some noncitizens during the removal period."

The judge called the guidance "an end-run around" immigration law that requires immigrants who commit aggravated felonies to be detained and removed from the country within 90 days.

"The permanent guidance allows noncitizens to be released on removal-period and post-removal bond based on factors Congress did not intend DHS to consider and in contrast to DHS's own regulations," he said.

Biden and the federal government argued the guidance is not subject to judicial review because it does not represent a final agency action, but Newman disagreed.

He pointed out that because the guidance "displaces" the categorical analysis used by federal immigration agents to assess whether an illegal immigrant is subject to removal, it has a significant legal impact on the states.

"The states have shown that their criminal justice expenditures increase when DHS's detention and removal of noncitizens decrease," Newman said.

The federal government argued prioritization of removal of the most dangerous illegal immigrants is the most efficient and cost-effective use of its limited resources, but the judge again disagreed and questioned why that meant the agency had to relax its standards regarding the types of individuals who are deported from the country.

"ICE detentions have steadily declined since the onset of the COVID-19 pandemic, falling from a high of 19,174 detained noncitizens in March 2020 to 4,844 as of March 2022," Newman wrote. "Since the permanent guidance went into effect, ICE has detained, per month and on average, 3,980 noncitizens with a criminal conviction, 611 noncitizens pending criminal charges, and 241 noncitizens with no criminal record. This shows DHS was not under such a resource crunch that it needed to relax the mandatory detention standard."

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He determined the states are likely to prevail on their legal challenges to the permanent guidance because it establishes a "binding norm" that displaces federal immigration law but was not subject to the notice and comment period required for agency rules.

Newman ultimately decided to grant the states' request for a nationwide injunction, emphasizing that immigration law "demands uniform application across the country."

Neither DHS nor the Ohio Attorney General's Office immediately responded to requests for comment.

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Paul Ingram/TucsonSentinel.com

The border wall east of Sasabe, Arizona in September 2020.