Agents are blocked from using discretion in deportation arrests
By Miriam Jordan
A Biden administration policy that prioritized the arrest of immigrants living in the country illegally who are considered a threat to public safety and national security has been suspended as of Saturday, rendering millions of people vulnerable to deportation.
A federal judge in Texas had ruled the prioritization policy illegal June 10, a ruling that took effect late Friday after a federal appeals court failed to issue any decision blocking it. The Department of Homeland Security said it effectively had no discretion under the ruling to set priorities for how its agents enforced the nation’s immigrant removal laws.
“While the department strongly disagrees with the Southern District of Texas’ court decision to vacate the guidelines, DHS will abide by the court’s order as it continues to appeal it,” the department said in a statement.
It said Immigration and Customs Enforcement agents would make enforcement decisions on a case-by-case basis “in a professional and responsible manner, informed by their experience as law enforcement officials and in a way that best protects against the greatest threats to the homeland.”
The court order leaves the government in an unusual situation. Recent administrations have set at least some priorities establishing which immigrants living in the country without legal permission should be targeted for removal, in most cases trying to identify people who have committed crimes or who pose some other threat before moving on to others. The Trump administration significantly broadened the range of immigrants identified for deportation, but even then, there was some guidance to target criminals, legal experts said.
The removal of the guidelines is likely to renew some of the fears that plagued immigrant communities during Donald Trump’s presidency, when nearly anyone without legal residence was subject to arrest, although the Biden administration has pledged to take a measured approach to enforcement even without a prioritization policy.
In a policy memo to immigration agents last year, the Department of Homeland Security secretary, Alejandro Mayorkas, had directed agents not only to prioritize immigrants involved in crimes and security threats but also to take into consideration other factors in deciding whether to apprehend them — such as whether they had lived in the United States for many years, were of advanced age or had U.S.-born children.
This leaves nearly all of the estimated 11 million immigrants living in the country without legal permission theoretically open to arrest and deportation, although exactly who would be targeted and how is unclear.
“The problem with moving away from priorities is, there is no standardization, no rhyme or reason,” said Karen Tumlin, founder of Justice Action Center, an immigrant rights group.
“A person here 20 years who is the parent of U.S.-citizen kids could be put in removal proceedings,” Tumlin said. “Someone dropping off their child at school who has never committed a crime could be arrested.”
In the September policy memo, Mayorkas instructed immigration officers to employ “discretionary authority” in deciding who should be arrested and removed from the country.
Being present in the country without authorization “should not alone be the basis of an enforcement action,” the memo said. “We will use our discretion and focus our enforcement resources in a more targeted way,” aiming first at those who presented a threat to public safety or national security, it specified.
“The majority of undocumented noncitizens who could be subject to removal have been contributing members of our communities for years,” the memo said, noting that the exercise of discretion by the federal government on immigration matters was a “deep-rooted tradition” that was supported by law.
The new priorities marked a shift in immigration enforcement in the interior of the country. The change was part of a broader effort by President Joe Biden to adopt what he called a more humane strategy on immigration than his predecessor, whose administration engaged in much more widespread immigration arrests.
ICE agents in the Trump era often raided homes or workplaces to arrest immigrants who had been recently identified for removal, sweeping up others who were present — sometimes mere bystanders. Agents conducted large operations in so-called sanctuary cities, making hundreds of arrests.
Out of fear that they might be apprehended, many immigrants lacking permanent legal status during that period refrained from spending time outdoors with their families and restricted their outings to necessary trips to buy groceries and go to work.
The Obama administration deported millions of people, but it did not conduct major work site raids, and most people removed were recent border crossers. It also prioritized criminals for deportation.
The lawsuit that led to Friday’s ruling was filed by Texas and Louisiana, which argued that their states faced strains on services, such as health care, when required to provide them for large numbers of immigrants living in the country illegally. They also claimed there was a heightened risk of crime to their communities when the government did not remove people who were in the country illegally, although studies have shown that people living in the U.S. without legal permission are less likely to commit crimes than other residents.
In the lower court decision, Judge Drew B. Tipton, a Trump appointee, concluded that Mayorkas’ decision to adopt priorities was “arbitrary and capricious” and that federal law required a series of procedures before such a policy change, including a public comment period.
He also ruled that the policy violated immigration law because it “ties the hands” of agents in the field and “changes the standard” for whom they can detain and when.
The judge had stayed his ruling to allow the government to pursue an emergency appeal. But the stay expired Friday, and the 5th U.S. Circuit Court of Appeals had not yet issued a ruling, leaving Tipton’s order to take effect.
Immigrant advocates who supported the policy said that immigration agencies have long received guidance from the White House. They said that the Supreme Court, which is expected to be asked to rule on the current case, had previously ruled that the executive branch had discretion over immigration matters, including the removal process.
Rebekah Wolf, policy counsel at the American Immigration Council, said the court ruling “could force the administration’s hand into indiscriminate mass enforcement.”
Some of those who have advocated a harder line on immigration applauded the lower court’s decision, arguing that immigration laws should be uniformly enforced.
They said agents could not be expected to make value judgments about whether an immigrant living in the country illegally should be allowed to remain in the United States. Anyone with a good argument against deportation could make the case before an immigration judge, said Andrew Arthur, a resident fellow on law and policy at the Center for Immigration Studies, which favors restricting all immigration.
“Congress doesn’t allow immigration officers, nor can it expect them, to assess whether these are good fathers, coach Little League or are ushers in their local church,” he said. “ICE officers don’t have a crystal ball or magical score sheet to know everything going on in a person’s life.”
Most of the millions of immigrants living in the U.S. without legal permission have been in the country for at least a decade, often with U.S.-born children and deep ties to their communities. About two-thirds of adults living in the country illegally participate in the workforce, according to the Pew Research Center.
“The ruling will lead to more fear and uncertainty among people who have lived in our communities for years and decades,” said Sirine Shebaya, executive director of the National Immigration Project.
Government lawyers argued that the policy was a reasonable use of discretion that made sense given the limited resources at the Department of Homeland Security.
Even before Biden took office, large numbers of migrants were arriving at the southern border. Record numbers have crossed this year, coming from Mexico and Central America as well as Asia, Europe and Africa, where the COVID-19 pandemic caused widespread job losses.
Those released from detention to pursue asylum claims are allowed to remain in the country until they have exhausted their legal claims in court and are ordered to leave. Others have crossed the border without pursuing the legal asylum process; many of them can be deported immediately. The Biden administration policy called for immigration agents to focus on those recent arrivals as well.