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Fifth Circuit halts order for Biden to step up deportations

An appellate panel found the federal government's decisions on who to prioritize for deportation are “presumptively unreviewable” by courts.

A Trump-appointed federal judge erred in blocking the Biden administration’s policies guiding which undocumented immigrants it is prioritizing to arrest for deportations, a Fifth Circuit Court of Appeals' panel ruled Wednesday.

In President Joe Biden’s first month in office, the Department of Homeland Security issued memos establishing new guidelines for deportations.

In accord with Biden’s goal of moving away from the heavy-handed immigration enforcement policies of his predecessor, the memos directed Immigration and Customs Enforcement officers to prioritize deporting three categories: immigrants who are national security threats, those who entered the country after Nov. 1 and those who have been convicted of aggravated felonies or gang-related crimes.

Texas and Louisiana sued the government and DHS officials over the new guidance in April, claiming ICE was failing to issue detainer requests for dangerous immigrants incarcerated in their states and forcing them to spend money jailing those who commit more crimes.

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

U.S. District Judge Drew Tipton, an appointee of former President Donald Trump, sided with the states and issued a nationwide injunction, effective Aug. 30, blocking the Biden administration from enforcing its deportation guidelines.

Tipton determined DHS was flouting the Illegal Immigration Reform and Immigration Responsibility Act of 1996, as it mandates the detention of immigrants convicted of serious drug offenses, crimes of moral turpitude and those who have received final removal orders.

But U.S. Circuit Judge Gregg Costa, a Barack Obama appointee, wrote Wednesday for a unanimous three-judge panel of the Fifth Circuit that Tipton’s injunction had infringed on “immigration officials’ traditional discretion to decide when to remove someone.”

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Costa wrote those decisions are “presumptively unreviewable” by courts because ICE lacks the resources to deport all the estimated 11 million undocumented immigrants in the country.

The panel left untouched part of Tipton’s injunction that mandates the arrest of immigrants jailed for certain serious crimes against whom ICE has issued a detainer, and the detention for 90 days of immigrants who have received final orders of removal, as spelled out in the 1996 law.

But the judges found Tipton went too far by eliminating Homeland Security’s broad discretion on which immigrants to arrest for removal in the first place.

A stay of the lower court's order is appropriate, Costa wrote, because the Biden administration has proven it is likely to win in its appeal of Tipton’s injunction and complying with the injunction is causing Homeland Security the irreparable injury of losing time spent arresting immigrants who would not be arrested under the new standards.

“Judicial interference with a government agency’s policies often constitutes irreparable injury. And prosecutorial discretion is a core power of the Executive Branch, so its impairment undermines the separation of powers,” Costa added in a 15-page order.

The White House claims its policies are working as ICE is arresting less immigrants overall but more public safety threats who have been convicted of aggravated felonies.

From February through July of this year, the federal government says, ICE arrested 25,916 immigrants compared to 39,107 in the same period in 2020. But it has arrested 2,000 more with aggravated felonies, and that group now accounts for 20% of ICE arrests.

Critics of the policies – including a group of ICE officers who belong to the Washington nonprofit Federal Police Foundation and joined four Texas sheriffs in another lawsuit over the new enforcement regime – say they resulted in the lowest monthly number of ICE arrests on record, fewer than 3,000 in April.

They also claim ICE management has denied ICE officers’ requests to place detainers on dangerous immigrants, or rescinded detainers on them – among them a man who had a quarter pound of heroin in his vehicle when he rammed a police car while fleeing with a baby in the backseat, and another who was convicted of molesting a child and reentered the country after being deported.

The Fifth Circuit’s ruling comes one month after a different panel of the New Orleans-based appellate court declined to stay another Trump appointee’s order for the Biden administration to restart Trump’s Remain in Mexico program, formally known as the Migrant Protection Protocols.

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More than 60,000 asylum seekers were turned back to Mexico to await resolution of their cases after Trump implemented MPP in January 2019.

That panel declined to issue a stay because it determined Biden’s injury of having to restore MPP was self-inflicted as he had terminated the program two months after Texas and Missouri sued him and Homeland Security officials for suspending it, rather than waiting until the litigation was resolved.

The deportation-guidelines litigation is different, Costa wrote, because Texas and Louisiana sued more than two months after DHS announced its new enforcement priorities.

Costa’s panel heard arguments in the case Sept. 8 after placing a temporary administrative stay on Tipton’s injunction.

DHS and Texas Attorney General Ken Paxton did not immediately respond Wednesday afternoon when asked to comment on the order.

Costa was joined on the panel by U.S. Circuit Judges Leslie Southwick, a George W. Bush appointee, and James Graves, appointed by Obama.

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A group of more than 100 people, who surrendered to Border Patrol agents near Sasabe, including more than 90 children.