Court strikes down Biden immigration enforcement priorities

A federal judge has blocked the Biden administration’s immigration enforcement priorities that directed border agents to focus on those with serious criminal records.

The Biden administration in two memos directed U.S. Immigration and Customs Enforcement (ICE) agents to focus on those deemed a threat to public safety, requiring officers to seek approval from a supervisor before veering from the priorities.

But following a challenge from Texas and Louisiana, a U.S. district court judge in Texas ruled that border agents should be able to pursue migrants in “overlooked categories.”

In a 160-page ruling that begins by quoting a 1996 Senate Judiciary Committee Report noting the need to enforce immigration laws, Judge Drew Tipton argues that agents cannot be required to prioritize some groups of undocumented individuals over others.

“Government has instructed federal officials that ‘shall detain’ certain aliens means ‘may detain’ when it unambiguously mean[s] must detain. Thus, the court inquires whether the executive branch may direct officials to enforce a law enacted by Congress in a way that is contrary to the plain language of the law. That inquiry yields a clear answer: it may not,” wrote Tipton, who was appointed to the bench by former President Trump.

The enforcement priorities laid out by the Biden administration in February deemed that those living in the U.S. without legal status would be considered a public safety threat if they’ve been convicted of an aggravated felony, a term that includes violent crimes but can include some serious but nonviolent offenses. The memo also encourages a focus on those involved in gang activity.

But Texas and Missouri argued this would prevent ICE agents from going after others with a criminal history.

“The States point out that the priority categories enumerated in these Memoranda omit certain others—namely, aliens convicted of serious drug offenses, aliens convicted of crimes of moral turpitude, and aliens subject to a final order of removal,” Tipton wrote.

Also at issue for the two states were so-called detainers, which allows ICE officials to request local authorities to hold foreign national convicts for up to 48 hours after their jail sentences are scheduled to end. 

Texas state law makes it obligatory for state and local officials to cooperate with ICE detainers, but the practice is optional in many other states.

The Department of Homeland Security did not immediately respond to a request for comment.

“ICE’s enforcement priorities were created to limit some of the harm experienced by immigrant communities over the last four years by narrowing the agency’s focus on people the government believes to be threats to national security and public safety,” Jorge Loweree, policy director at the American Immigration Council, said in a release.

“Immigration enforcement has operated on overdrive for years, with immeasurable consequences for immigrant families and communities throughout the United States. Today’s decision upends meaningful efforts to move away from a dragnet approach to immigration enforcement.”

The memos enjoined in the ruling are part of a broader pattern by the Biden administration to push border agents to focus enforcement efforts on a narrower subset of the migrant population.

A June memo from ICE gave its prosecutors more discretion to drop cases being pursued in immigration court.

The memo allows the agency’s lawyers to drop cases against green card holders and those who are elderly, pregnant or have serious health conditions or have been in the U.S. from an early age.

It also advises lawyers to weigh other “compelling humanitarian factors,” like whether a defendant is a caregiver or the victim of a crime.

ICE agents were also recently instructed to avoid deportation of victims of crime and not to take into custody those who are pregnant or nursing.

But Thursday’s ruling was the second in a week to overturn a Biden immigration policy.

Another Texas-based federal judge on Friday ordered the administration to reinstate Trump’s remain in Mexico policy, forcing asylum seekers to await their case on the other side of the southern border.

—Updated at 4:48 p.m.