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Biden Administration Halts Limits on ICE Arrests

U.S. Immigration and Customs Enforcement's fugitive operations team makes an arrest.
U.S. Immigration and Customs Enforcement's fugitive operations team makes an arrest. | Image by Lucy Nicholson/Reuters

The Biden administration has rescinded its guidance on whom federal immigration agents should arrest and deport from the U.S. after a court ruling went into effect this weekend.

In September 2021, Homeland Security Secretary Alejandro Mayorkas issued a memo directing Immigration and Customs Enforcement (ICE) agents to arrest unlawful migrants deemed a threat to public safety or national security or who recently crossed a U.S. border unlawfully.

Mayorkas argued that someone’s status as an unlawful migrant should not be the sole reason to arrest them. As a result, unlawful migrants who arrived in the U.S. before November 2020 and had not committed any serious crimes have generally been shielded from arrest and deportation.

“In exercising our discretion, we are guided by the fact that the majority of undocumented noncitizens who could be subject to removal have been contributing members of our communities for years,” Mayorkas wrote.

Earlier this month, U.S. Judge for the Southern District of Texas, Drew Tipton ruled that Mayorkas’ memo was unlawful because he lacked the authority to issue such a directive.

Tipton’s ruling did not go into effect immediately to give the Biden administration time to appeal. The Department of Justice also asked the Fifth Circuit Court of Appeals to suspend Tipton’s ruling.

However, the appellate court did not issue a decision on the government’s request, and Tipton lifted the pause on his ruling on Saturday morning.

Tipton ruled that Mayorkas’ memo was too restrictive on ICE agents, saying it shielded some unlawful migrants with criminal records from arrest.

The directive’s implementation also violated laws because Mayorkas enacted the memo in an “arbitrary and capricious” fashion, according to Tipton.

The judge ruled that the government should have held public comment on the directive before its implementation.

“It is also true that the Executive Branch may prioritize its resources. But it must do so within the bounds set by Congress,” Tipton wrote in his 96-page opinion. “Whatever the outer limits of its authority, the Executive Branch does not have the authority to change the law.”

Mayorkas’ directive ordered ICE agents to weigh “aggravating factors,” including the nature of crimes committed by the unlawful migrant, the harm inflicted on victims, and previous convictions.

It also instructed them to consider “mitigating factors,” like the age of the unlawful migrant, the time they have lived in the U.S., and past military service, before deciding whether to make an arrest.

Tipton found that part of the directive was limiting ICE agents’ discretion and violating mandatory detention laws.

“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,” Tipton wrote.

Tipton made the ruling after Mayorkas’ memo was challenged by officials in Texas and Louisiana. Tipton ruled that both states were financially harmed by Mayorkas’ directive because of the costs of detainment and provision of social services, such as healthcare, to unlawful migrants.

“This ruling is just another step in restoring order to our Southern Border,” Texas Attorney General Ken Paxton said after Tipton handed down the decision. “I continue to be baffled at the blatant disregard for the law that the Biden Administration has repeatedly shown. It is beyond logic as to why they would want to break the law and threaten the safety of fellow Americans. If President Biden thinks the State of Texas isn’t ready to fight him and his disastrous border policies on every front, he’s dead wrong. I’ll just keep suing him in court — and winning.”

In a statement to CBS News on Saturday, the Department of Homeland Security said it “strongly” disagreed with Tipton’s ruling but would still comply with the order.

“During the appeals process, ICE agents and officers will 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 department said.

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2 Comments

  1. CITIZEN

    The main concern by the administration is the votes being taken away. After all, vote for the hands that gives you all/anything you want for free.

    Reply
  2. Victor Moreland

    I have it on good authority that 90% of the *migrants* entering the US will be voting Republican first chance they get…

    Reply

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