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The Supreme Court on Thursday rejected the Biden administration’s request to reinstate a policy limiting immigration arrests after a Texas district judge said the guidelines for immigration officials violated federal laws.
Instead, the court said it would hear the case on its merits in December. Four justices — Sonia Sotomayor, Elena Kagan, Amy Coney Barrett and Ketanji Brown Jackson — said they would grant the administration’s request to delay a lower court’s decision. It was Jackson’s first vote since joining the court.
In September, the Department of Homeland Security directed U.S. Immigration and Customs Enforcement (ICE) officials to prioritize the detention of recent border crossers and immigrants who pose a threat to national security and public safety, and to consider giving immigrants a break with mitigating factors, such as farm workers who pick crops and grandmothers who care for American children.
Homeland Security Secretary Alejandro Mayorkas said being in the country without authorization “should not be grounds alone” for arrest or removal, a change from the Trump administration’s perspective.
Republican attorneys general across the country filed lawsuits, and those in Texas and Louisiana were successful. Judge Drew Tipton of Texas agreed with the argument that the policy burdens them with the costs of education, health care and other services for immigrants and ignores federal laws that require ICE to detain and deport immigrants who have committed serious crimes or received a recent warrant deportation.
Tipton, appointed to the bench by President Donald Trump, sided with the states and freed up ICE’s priorities, leaving the agency without any operational guidance. A panel of the U.S. Court of Appeals for the 5th Circuit denied the administration’s request to stay Tipton’s order while it hears the merits of the case.
Across southern Arizona, a full range of border issues for Biden
That was the opposite of what a panel of the US Court of Appeals for the 6th Circuit found when it considered a nearly identical case brought by Arizona, Montana and Ohio.
Chief Justice Jeffrey Sutton, a Republican appointee, wrote that DHS policy “does not tie the hands of immigration officials” and that congressional mandates allow some flexibility.
Federal laws require ICE to detain immigrants with serious criminal records and anyone with a final deportation order for deportation within 90 days. But such enforcement never materialized, Sutton writes. “Which presidential administration, since this law went into effect in 1996, it’s fair to wonder, has come close to removing all eligible noncitizens within 90 days, whether for legally permitted reasons or not?” he wrote.
Sutton writes that Republican and Democratic administrations have long established their own enforcement priorities. Under Trump, anyone in the United States illegally can be subject to enforcement action, while the Obama administration tried to limit removal to “criminals, not families.”
The 5th Circuit panel said it was “inclined to agree” with Tipton and denied the Biden administration’s request to stay Tipton’s ruling, striking down ICE’s enforcement priorities.
The Texas case is among a series of lawsuits seeking to overturn Biden’s immigration policies, which he has characterized as a more humane approach to law enforcement. The president tried to “pause” deportations for 100 days, a policy that Tipton also blocked, and he introduced a bill that would allow most of the 11 million undocumented immigrants on the path to American citizenship. The bill largely failed in a divided Congress.
Solicitor General Elizabeth B. Prelogar on July 8 asked the Supreme Court for an emergency stay of the 5th Circuit, writing in a brief that the Tipton decision reversed the agency.
“Thousands of DHS employees across the country were told to ignore their training and stop complying with the Secretary’s instructions,” she wrote in the request. “This decision frustrates the secretary’s leadership of the department he leads and disrupts DHS’s efforts to focus its limited resources on noncitizens who pose the most serious threat to national security, public safety, and the integrity of our nation’s borders.”
Mayorkas said his policy guidelines instruct agents to set priorities, just as he did as U.S. attorney in Los Angeles years ago. He said the agency has limited resources and must use them effectively to make communities and the border more secure.
“Is the grandmother who came into this country 30 years ago, who cleaned our neighbors’ houses to provide a better life for her U.S. citizen grandchildren, really a threat to public safety?” he said in an interview in September when the guidelines were made public.
Deportations and arrests at ICE fell to their lowest levels in the agency’s history last fiscal year. Officers working inside the United States made about 74,000 administrative arrests, down from 104,000 the previous year and an average of 148,000 annually from 2017 to 2019.
Texas and Louisiana say enforcement has remained low despite record-high apprehensions at the border, which Republicans attribute to Biden’s softer immigration policies. They challenged the administration’s claim that it lacks sufficient funding to detain and deport immigrants, noting that the president’s budget proposal for the next fiscal year calls for a “dramatic reduction” in detention beds from 34,000 to 25,000.
“It would be particularly troubling to allow applicants to ignore congressional orders under the current circumstances because the facts show that the problem is, at least in part, self-inflicted,” the states wrote to the Supreme Court, opposing the administration’s request for a stay.
Daniel Bible, acting deputy executive associate director of ICE’s Enforcement and Removal Operations, said in a government affidavit that it would be “impossible” for the agency to detain anyone eligible for deportation. ICE has 6,000 immigration officers, 34,000 detention beds and, as of early June, more than 4 million undocumented immigrants, including 327,000 people with criminal records.
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