Homeland Security Secretary Alejandro Mayorkas broke the law when he wrote new rules limiting which illegal immigrants can be detained or deported, a federal judge ruled Tuesday, slapping an injunction on ICE that will limit its ability to pick and choose whom to target.
Judge Michael J. Newman’s decision is a serious blow to the Biden administration, which from its first days in office has tried narrow the pool of illegal immigrants in danger of deportation by U.S. Immigration and Customs Enforcement.
Judge Newman said that Congress was clear in setting out classes of illegal immigrants that it thought should be mandatory targets, and Mr. Mayorkas can’t unilaterally change those.
“DHS contends that seemingly mandatory statutes must be read flexibly to permit efficient law enforcement. At bottom, that is what this dispute is about: can the Executive displace clear congressional command in the name of resource allocation and enforcement goals? Here, the answer is no,” wrote the judge, a Trump appointee to a federal court in Ohio.
His temporary injunction blocks ICE from delaying deportation or refusing to detain targets based on Mr. Mayorkas’s guidance.
Homeland Security didn’t respond to a request for comment.
Mr. Mayorkas had cast his rules as “priorities” he ordered ICE to follow. He said the money Congress allocated to him for immigration enforcement was limited, and he wanted to spend it on the highest-value targets.
To that end, he said merely being in the country illegally is no longer a reason to be deported. There must be an aggravating circumstance, such as a serious crime or a recent illegal border crossing, to deserve arrest or deportation.
Even then, he said, ICE officers needed to search for mitigating factors, such as family who depended on an illegal immigrant’s income, in deciding targets.
The problem, said Judge Newman, is that the law lays out specific cases where enforcement must occur, and Mr. Mayorkas’s rules didn’t align with the law.
Arizona, Ohio and Montana had sued to stop Mr. Mayorkas’s rules. A separate challenge is also pending in Texas.
Arizona Attorney General Mark Brnovich, the lead plaintiff in the case, pronounced the ruling a “Victory,” and Stephen Miller, an architect of the Trump administration’s immigration policy and president of America First Legal, which worked with the states on the lawsuit, called the ruling a “colossal win.”
“Today’s decision reaffirms that Joe Biden does not have the authority to abolish ICE by memorandum, to mass release criminal illegal aliens near our homes and loved ones, or to suspend our immigration laws, our borders, our sovereignty, and our nationhood,” Mr. Miller said in a statement.
He pointed to reports in The Times that showed ICE arrests and deportations of convicts have plummeted, and releases of serious criminals have risen under the Biden administration.
According to secret data ICE has yet to release, its Enforcement and Removal Operations division recorded 48% fewer arrests of convicted criminals in 2021, compared to 2020, and deported 63% fewer criminals.
ICE also issued 46% fewer “detainer” requests asking state and local police to hold someone for pickup by deportation officers.
That data undercuts Mr. Mayorkas’s argument that his guidance is pushing ICE to focus on the most important cases.
The Biden administration sought from its first days in office to curtail ICE enforcement, bowing to pressure from immigrant-rights advocates who said too many people were being arrested and deported.
On Inauguration Day, then-acting Homeland Security Secretary David Pekoske issued a full deportation halt, but it was blocked by a judge.
In February, acting ICE Director Tae Johnson issued an update, and Mr. Mayorkas followed with what he called “permanent” guidance in late September.
Tuesday’s ruling dealt with that Mayorkas policy.
Judge Newman impose a nationwide injunction on ICE, ruling that it cannot follow through on key parts of Mr. Mayorkas’s guidance.
What that means in practice remains to be seen.
Biden administration officials have said given the money Congress makes available to ICE, it’s impossible to arrest, detain and deport all illegal immigrants considered enforcement targets under the law.
The administration says that means there must be priorities, and the ones Mr. Mayorkas set are defendable.
Judge Newman disagreed, saying the administration could either return to the rate of arrests and deportations that existed before or try to issue a new set of guidelines that is less restrictive on officers.
Jon Feere, a former chief of staff at ICE in the Trump years, said whatever ICE does, there’s plenty of room to boost enforcement.
“It’s ridiculous for them to be complaining about a lack of resources while not working to expand those resources,” he said. “But even with the resources they have, they obviously could do much much more. And now, after this ruling, perhaps they have to.”
*story by The Washington Times
