By Camilo Montoya-Galvez
Afederal judge in Ohio on Tuesday partially blocked a Biden administration directive that instructed Immigration and Customs Enforcement (ICE) officers to prioritize certain groups of immigrants for arrest and deportation, agreeing with a legal challenge mounted by three Republican-led states.
Judge Michael Newman of the U.S. District Court for the Southern District of Ohio, an appointee of former President Donald Trump, said a September 2021 memo issued by Homeland Security Secretary Alejandro Mayorkas led ICE agents to violate laws mandating the detention of certain immigrants facing deportation because of criminal convictions.
Mayorkas’ memo directed ICE agents to focus on arresting immigrants found to pose a threat to national security or public safety, as well as migrants who recently crossed a U.S. border illegally. Mayorkas’ memo was similar to two other Biden administration immigration enforcement policies issued earlier in 2021 that also narrowed the categories of immigrants subject to deportation.
However, Mayorkas’ directive gave ICE more discretion to decide whether immigrants with criminal convictions threaten public safety, instructing agents to consider a set of aggravating factors, such as the gravity of the offense and prior arrests, and mitigating factors, including prior service in the military and the time the immigrant has lived in the U.S., before making arrests.
In his ruling, Newman recognized that federal officials have discretion when enforcing immigration laws, saying Mayorkas’ “balancing analysis is acceptable at certain points in the removal process.” But he said Congress mandated the detention of immigrants with certain criminal convictions and those with final orders of deportation.
“The Permanent Guidance displaces the custody and removal factors Congress intended DHS officials to consider for its extra-textual totality-of-the-circumstances analysis,” Newman wrote in his 79-page opinion.
Through his nationwide injunction, Newman prohibited federal agents from relying on Mayorkas’ guidance to make “custody decisions” about immigrants subject to mandatory detention. He also blocked the use of the memo to release or delay the deportation of immigrants with final orders of deportation.
It’s unclear how ICE will comply with Tuesday’s ruling and whether the agency will continue to enforce parts of Mayorkas’ memo that were not blocked. Representatives for DHS did not respond to a request to comment on the ruling. The Justice Department, which could appeal the order, did not comment.
Tuesday’s court order is a victory for Republican officials in Arizona, Montana and Ohio, who filed the lawsuit against Mayorkas’ directive. It is also yet another legal defeat for President Biden’s immigration agenda, which has been stymied by lawsuits from conservative states, particularly Texas.
Days after Mr. Biden took office, Texas successfully challenged and blocked his administration’s attempt to pause deportations from the U.S. interior for 100 days. The state has also convinced judges to order the Biden administration to reinstate Trump-era border policies, including a program that requires asylum applicants to wait for their U.S. hearings in Mexico.
Over the past year, the Biden administration has sought to reshape immigration policies at ICE, an agency that has faced intense criticism from progressives and advocates for immigrants.
In addition to enacting new enforcement priorities, the administration has barred ICE from detaining pregnant or nursing women, victims of serious crimes and migrant families traveling with minor children. It also discontinued mass immigration arrests at worksites.
The Biden administration’s policies, along with the coronavirus pandemic, have kept ICE arrests and deportations low. ICE arrested 74,082 immigrants in fiscal year 2021, which ended in October, a 28% drop from 2020, while carrying out 59,011 deportations, an all-time low for the agency.
Republican lawmakers have said the Biden-era directives encourage unlawful migration and bar ICE agents from fully enforcing immigration laws.
Top Biden officials have argued their policies allow ICE to better focus its finite enforcement resources on non-citizens with serious criminal convictions who could victimize community members, while sparing undocumented immigrants who have lived and worked in the U.S. for years without committing crimes.
In a January interview, Mayorkas said the changes represented “a profound shift away from the prior administration’s indiscriminate enforcement.”
“We have fundamentally changed immigration enforcement in the interior,” Mayorkas told CBS News. “For the first time ever, our policy explicitly states that a non-citizen’s unlawful presence in the United States will not, by itself, be a basis for the initiation of an enforcement action.”