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Federal judge halts Biden deportation policies
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Federal judge halts Biden deportation policies

  • U.S. Border Patrol agents at the Ajo Border Patrol Station.
    Lee Roberts/U.S. Army Corps of EngineersU.S. Border Patrol agents at the Ajo Border Patrol Station.

Siding with Texas and Louisiana, a federal judge ruled Thursday the Biden administration's new policies limiting deportations violate standards set by Congress.

In the latest blow to President Joe Biden’s immigration policies, U.S. District Judge Drew Tipton in Texas agreed with the two states in finding the Department of Homeland Security is unlawfully allowing some immigrants to go free when it should be deporting them due to their criminal records.

Tipton, appointed by former President Donald Trump last year, ordered DHS to stop enforcing memos the agency’s officials issued in the first month of Biden’s presidency that established new guidelines for deportations.

The memos directed Immigration and Customs Enforcement officers to prioritize deporting undocumented immigrants who are national security threats, who entered the country after Nov. 1 and who are public safety threats serving time after their convictions for certain aggravated felonies.

The guidance was part of Biden’s effort to “rebuild fair and effective asylum procedures that respect human rights and due process” following the draconian measures taken by his predecessor that severely limited who can qualify for asylum and left all paperless immigrants at risk of deportation.

Texas and Louisiana sued the government and DHS officials over the new guidance in April.

They say ICE is failing to issue detainer requests for dangerous immigrants incarcerated in their states, forcing them to spend more money jailing those who commit more crimes and harming their interest in protecting their residents from immigrant criminals.

ICE can issue detainer requests to prison and jail officials asking them to hold undocumented immigrants behind bars so federal immigration agents can pick them up.

Tipton found Texas’ arguments on crime-response costs persuasive.

He said the Lone Star State has put forth undisputed evidence that in the first two months of Biden’s presidency, ICE had rescinded detainers for 68 immigrants locked up in Texas jails or prisons.

“Of note, the list includes aliens who were convicted of possessing over fifty pounds of a narcotic, manufacturing over 400 grams of methamphetamine, theft, intoxication assault with a vehicle, and the sexual assault of a child,” Tipton wrote in a 160-page order.

The judge found DHS is flouting a uniform procedure for deporting immigrants that Congress established in the Illegal Immigration Reform and Immigration Responsibility Act of 1996, as the statute mandates the detention of immigrants convicted of serious drug offenses, crimes of moral turpitude and those who have received final removal orders.

The government argued that the states were only speculating that immigrants who would otherwise have been taken into ICE custody will commit more crimes and said its new deportation regime could result in a “net reduction in crimes” committed by paperless immigrants.

Tipton was unpersuaded.

“Texas spends $62.34 per day per inmate in its detention facilities,” he wrote. “In 2018, Texas detained 8,951 criminal aliens for a total of 2,439,110 days, costing $152,054,117. If even one alien not detained due to the memoranda recidivates, Texas’s costs ‘will increase’ in accordance with its current cost per inmate.”

The judge determined the Biden administration’s arguments were undercut by the fact the federal government provides aid to states to offset the cost of detaining undocumented immigrants in state prisons under the State Criminal Alien Assistance Program.

“In 2018 the federal government through SCAAP reimbursed Texas $14,657,739 of the total $152,054,117 Texas spent on detaining criminal aliens,” Tipton wrote. 

“Although amounting to less than 10% of Texas’s actual costs in 2018, SCAAP payments demonstrate that the federal government has long acknowledged that states like Texas incur financial harm as a direct result of the unlawful behavior of criminal aliens,” he added.

Tipton is well-versed in Biden’s deportation policies.

He issued a temporary restraining order Jan. 26 and followed up with an injunction blocking Biden from implementing a 100-day pause on deportations in another lawsuit filed by Texas.

The Biden administration claimed the pause was needed to ensure those facing deportation could remain in the country while DHS reviewed its policies to effectuate a more just immigration system.

Tipton’s latest order is the second major blow in a week to Biden’s attempted overhaul of the nation’s immigration rules.

U.S. District Judge Matthew Kacsmaryk, another Trump appointee, last weekend ordered DHS to reinstate a Trump program known as Remain in Mexico that forced more than 70,000 asylum seekers to wait in Mexico for adjudication of their cases, letting them in the country only long enough to attend hearings under makeshift tents in South Texas before immigration judges presiding via videoconference software.

On Wednesday, the Biden administration proposed new rules in which asylum claims would be handled by asylum officers and immigration judges would only consider appeals from those denied asylum or other means of staying in the United States.

The rules are meant to cut down the backlog of more than 1 million pending asylum cases. But before taking effect, they must first go through a notice-and-comment period in which the public can weigh in on them.

Some agency rules don’t have to go through that step and the Biden administration argued in court documents its changes to deportation priorities are exempt because they simply spell out DHS procedure.

But Tipton agreed with Texas and Louisiana the memos dictating the new deportation guidelines should have been posted for the public to comment on and DHS’s bypass had violated the Administrative Procedure Act.

He issued a nationwide preliminary injunction blocking the Biden administration from enforcing its deportation guidelines.

He also ordered it to file monthly reports with him about the number of immigrants released from custody who should have been picked up by ICE. In addition, he wants the number of immigrants who have received final deportation orders, and the number of that group who were not detained.

And in a move sure to draw condemnation from immigrant advocates, Tipton said for all immigrants not detained whom he found federal law requires them to be, the government must provide under seal their last known residence or address, the reason why they were not detained and the person who made that decision.

The White House did not respond Thursday to a request for comment on the order.

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