- The Washington Times - Thursday, July 21, 2022

The Supreme Court delivered a blow to President Biden’s immigration plans Thursday, rejecting his bid to revive Homeland Security rules that would have limited which illegal immigrants can be targeted for arrest or deportation.

Instead, the justices said they will speed the case onto their calendar for a full hearing later this year.

Mr. Biden’s team had lost in lower courts, with judges ruling that Homeland Security Secretary Alejandro Mayorkas cut legal corners and violated immigration law in carving whole categories of illegal immigrants out of danger of deportation.



Mr. Biden’s lawyers had asked the justices to stay the lower court decision while the case was argued, but a divided Supreme Court rejected that. Justice Amy Coney Barrett, a GOP appointee, joined the court’s three Democratic appointees in dissenting.

It marks the first 5-4 ruling in the court’s history that was divided along gender lines.

The court did agree to the Biden team’s request to skip over more lower-court wrangling and take the case up directly. The justices set oral argument for the first week in December.


SEE ALSO: Chief immigration judge quits amid Biden administration purge


But in the meantime, the rules that Mr. Mayorkas issued last year remain on hold.

Mr. Mayorkas had argued that U.S. Immigration and Customs Enforcement was stretched too thin and needed to focus on high-priority targets. Under his rules, ICE officers were pushed to justify each arrest with a write-up defending their decision-making.

Being in the country illegally was no longer enough of a reason, Mr. Mayorkas said. He said officers needed to look for major criminal records, and even in those cases needed to balance them against other factors, such as how long ago the crimes occurred and whether the migrant was supporting a family.

The 5th U.S. Circuit Court of Appeals earlier this month blasted the secretary’s reasoning, saying Mr. Mayorkas’ policy had led to a “concerning decline in overall enforcement” against illegal immigrants in the country’s interior.

The three-judge panel also questioned Mr. Mayorkas’ attempt to inject Mr. Biden’s “equity” agenda into immigration officers’ decisions.

“DHS’s replacement of Congress’s statutory mandates with concerns of equity and race is extralegal, considering that such policy concerns are plainly outside the bounds of the power conferred by the [Immigration and Nationality Act],” the judges wrote.

The 5th Circuit upheld a ruling by District Judge Drew B. Tipton, a Trump appointee to the bench in Texas, who vacated Mr. Mayorkas’s memo in response to a lawsuit brought by Texas Attorney General Ken Paxton.

While Mr. Biden lost in that case, he was prevailing in another case out of Ohio, where a separate federal appeals court sided with Mr. Mayorkas.

The split between the two circuits, even though it came on preliminary rulings, may have played a role in pushing the justices to speed the case to their docket.

In the order announcing their decision, the justices told the parties to submit briefs on whether Texas had standing to sue, whether the judge could vacate Mr. Mayorkas’ policy, and whether Mr. Mayorkas broke immigration law or the Administrative Procedure Act.

Mr. Biden took office promising to wipe away Trump-era immigration policies, but he’s met with stiff resistance in the federal courts.

The Supreme Court did deliver one victory last month when it ruled federal law does not require the administration to restart President Trump’s “Remain in Mexico” policy for illegal border crossers. The justices sent that case back to a court in Texas for more argument.

That ruling was 5-4, with Chief Justice John G. Roberts Jr. and Justice Brett M. Kavanaugh siding with the court’s Democratic appointees in backing Mr. Biden’s stance.

• Stephen Dinan can be reached at sdinan@washingtontimes.com.

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