A federal judge ruled against the Department of Homeland Security (DHS) last Friday to eliminate a tenet of the Biden administration’s immigration policy. The Biden administration filed an appeal with the Fifth Circuit Court of Appeals on Wednesday.
Ruling in favor of the states of Louisiana and Texas on June 10, Southern District of Texas Judge Drew Tipton voided a DHS directive that limited who federal agents could arrest or deport.
DHS Secretary Alejandro Mayorkas announced the directive in September 2021, issuing new guidelines on the circumstances under which unlawful migrants may be arrested and deported by federal agents.
The guidelines stated that being an unlawful migrant, that is, being present in the United States without legal authorization, “should not alone be the basis” for federal agents to arrest or deport someone on U.S. soil.
The Biden administration directed DHS to prioritize investigating and arresting unlawful migrants who posed a threat to “national security, public safety, and border security.”
Individual federal law enforcement agents ultimately maintained discretion over when to exercise their arrest powers. However, the guidelines advised agents to consider aggravating and mitigating factors when determining whether to execute an arrest, emphasizing that the individual should pose some threat to other people.
Mayorkas defended the policy in a speech at the U.S. Conference of Mayors in January, “We will not dedicate our limited enforcement resources to apprehend individuals who have been here in this country for many years, who have been contributing members of our communities.”
In the Southern District of Texas court, Biden administration lawyers argued DHS was reasonably exercising its prosecutorial discretion. Tipton disagreed.
“The Executive Branch may prioritize its resources. But it must do so within the bounds set by Congress,” wrote Tipton, according to NPR. “Using the words ‘discretion’ and ‘prioritization,’ the Executive Branch claims the authority to suspend statutory mandates. The law does not sanction this approach.”
Tipton commented further on officer discretion, writing, “At times, agents and officers on the ground are forced to make quick decisions as they encounter individuals, and this scheme ties their hands and changes the standard under which they make decisions on whom to detain and when,” per CBS News.
The Biden administration’s appeal argued that Tipton had overstepped his authority in his decision and left DHS “rudderless” by stripping the agency of its ability to establish arrest priorities, per Law360.
