Supreme Court says Biden cannot, for now, reset ICE deportation priorities
The Supreme Court of Justice on Thursday denied an emergency appeal requested by the Joe Biden government to immediately restore the policy of deportation priorities while reviewing the entire process in which two appeals courts gave contrary rulings.
However, the highest court of justice said it will hear the merits of the case in December, when it will hold a hearing for the lawyers of both parties in the process to present their oral arguments.
Judge Ketanji Brown Jackson participated for the first time in the ruling (5-4), who along with judges Sonia Sotomayor, Elena Kagan, Amy Coney Barrett would have agreed to the Biden Administration’s request to suspend a ruling issued by a federal court. district of Texas that annulled the immigration policy of the president in terms of expulsion priorities, said The Washington Post.
On its Twitter account, the Scotusblog site said the court “has denied the Biden administration’s request to allow it to implement its immigration enforcement policy while litigation continues, BUT agrees to hear the case in December.” without waiting for the lower court to intervene.”
The emergency resource
Last week, the government filed an emergency appeal before the highest court to annul the ruling of a federal court in the District of Texas that, in June, halted the deportation priorities of the Immigration and Customs Enforcement Office (ICE).
The step was taken after two different rulings issued by the 5th and 6th Circuit Courts of Appeals, decisions that generated a contradiction on the subject.
The purpose of the legal appeal was to nullify the ruling pronounced by federal judge Drew Tipton, of the federal court for the Southern District of Texas, which on June 10 annulled the expulsion priorities focused on those foreigners with criminal records that constitute a threat to the public and national security of the United States.
The plaintiffs, the states of Texas and Louisiana, both governed by Republicans, allege that the DHS deportation policy announced in late September 2021 violated the Administrative Procedure Act (APA).
The Supreme Court’s decision to keep the Texas order to suspend Biden’s deportation priorities in force while it reviews the case in December, “is a severe blow to the White House and the president’s immigration policy because priorities cannot be established at the time to proceed with the removal of a foreigner,” says José Guerrero, an immigration attorney who practices in Miami, Florida.
“Now we have to see how the government will respond, through the agencies under the command of the Department of Homeland Security (DHS) and how it will implement the deportation cases,” he added.
“Removing the DHS Secretary Alejandro Mayorkas memo from last year where the priorities were set out, we have gone back to the previous position, where people who are out of status or have a deportation order, right now are in danger or there is a chance that they will be deported,” he warned.
Guerrero also said that “there should be no discretion. People with orders of deportation or without lawful stay status, before taking any step, should seek legal advice and see what available legal resources they can use in case they are in danger of deportation from the United States.
Biden’s arguments
In the brief sent last week to the Supreme Court to try to stop the Texas order, the DHS, the Office of Immigration and Customs Enforcement -ICE-, the Office of Customs and Border Control -CBP- and the Office of Citizenship and Services of Immigration -USCIS- asked the superior court to “suspend” the sentence of June 10 against the deportation priorities “pending the consideration and disposition of the government’s appeal before the Court of Appeals for the 5th Circuit” and any other procedure law available.
The resource also pointed out that the September 2021 memorandum signed by Secretary Mayorkas, which stipulates the priorities for action of that ministry, “has long been based on said guidance to harmonize their efforts and focus their limited resources.” .
In the Guide in question, Mayorkas “identified as priorities for the apprehension and removal (deportation) of non-citizens who threaten national security, public safety and border security,” he added.
The government’s effort, however, was dismissed by the majority of Supreme Court judges.
The court battle
On July 5, a panel of judges from the 6th Circuit Court of Appeals ruled in favor of the government’s deportation priorities, allowing DHS to focus on aliens who have committed serious crimes.
The ruling was in response to an appeal filed by the states of Arizona, Ohio and Montana, who argued in March that implementing the priorities would lead to increased crime and strain law enforcement resources.
The plaintiffs won the case at the district level in Ohio court, but a panel of judges of the 6th Circuit Court of Appeals vacated the judgment in a preliminary ruling.
In a second sentence, they reaffirmed that the government can implement the priorities stipulated in the memorandum issued by Mayorkas last year.
But the order could not be implemented until the decision of the Court of Appeals for the 5th Circuit was known, to which the government turned after a ruling issued, in a second lawsuit, this time filed by Texas and Louisiana.
Second failure
A day later, on July 6, a panel of judges on the New Orleans-based Court of Appeals for the 5th Circuit denied a government appeal to vacate a June 10 ruling by a U.S. district court. South Texas, which overturned ICE’s deportation priorities.
In a 32-page ruling, a New Orleans-based panel of the court said it “denied” the request made by the government through DHS, and that therefore the government is required by law to remove aliens ordered deported. and with a criminal record in a hurry.
In the June 10 ruling, federal judge Drew Tipton wrote that “the Executive Branch can prioritize its resources. But it must do so within the limits set by Congress.”
“Using the words ‘discretion’ and ‘prioritization’, the Executive Branch claims the power to suspend statutory mandates. The law does not sanction this approach,” he added.
The sentence, contrary to the one issued a day before by the Court of Appeals for the 6th Circuit, not only kept the restriction in effect at the national level, but also opened the door for the government to go to the Supreme Court in search of a brake through an emergency resource.
What are ICE’s deportation priorities
According to Secretary Mayorkas’ menorando issued at the end of September, ICE’s deportation priorities are as follows:
THESE ARE THE GOVERNMENT’S DEPORTATION PRIORITIES
In January DHS announced, effective immediately, four categories of deportation priorities, these being:
- Priority 1. National security. A homeland security agent may presume that a noncitizen is a deportation priority if:
- He or she has participated in or is suspected of participating in acts of terrorism or related to terrorist activities;
- He or she has engaged in or is suspected of engaging in espionage or espionage-related activities; either
- Her apprehension, arrest, or custody is necessary to protect the national security of the United States.
- Priority 2. Border security. A homeland security agent may presume that a noncitizen is a deportation priority if:
- She was apprehended at the border or at a port of entry while trying to enter the United States illegally on or after November 1, 2020; either
- Either he or she was not physically present in the United States before November 1, 2020.
- Priority 3. Public safety. A homeland security agent may presume that a noncitizen is a deportation priority if:
- She represents a threat to public safety and;
- He or she has been convicted of a felony as defined in section 101(a)(43) of the INA; either
- She has been convicted of a crime for which she was active in a criminal street gang, as defined in 18 U.S.C. § 521(a) Not under the age of 16 and intentionally participated in an organized crime gang or transnational criminal organization to further the illegal activity of the gang or transnational criminal organization.
