- The Washington Times - Thursday, July 7, 2022

A federal appeals court has shot down the Biden administration’s request to revive its “priorities” policy for enforcing immigration law in the interior of the country — and delivered a scorching rebuttal to Homeland Security Secretary Alejandro Mayorkas.

The 5th U.S. Circuit Court of Appeals said Homeland Security was “not in good faith” when it argued it doesn’t have enough resources to enforce the law, and said there’s been a “concerning decline in overall enforcement” against illegal immigrants in the country’s interior.

The three-judge panel said Mr. Mayorkas likely cut procedural corners and violated the letter of immigration law with his priorities policy, which instructs immigration officers and agents to focus almost exclusively on recent border jumpers and illegal immigrants with severe criminal records.

The judges, in an unsigned opinion, also chided Homeland Security for attempts to inject President Biden’s “equity” agenda into immigration enforcement.

“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 ruling came on a procedural matter.

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After a district judge issued a ruling vacating the Mayorkas priorities policy, the administration appealed and asked the appeals court to allow the Mayorkas policy to remain in effect while the case proceeds.

The judges said Wednesday in their ruling that Homeland Security is likely to lose its appeal, so it doesn’t deserve a stay.

The court said Congress laid out clear guidelines about immigration cases that are considered mandatory for enforcement, based on the level of criminality or the deportation process used.

Mr. Mayorkas’s new rules undermine the law, the judges said, creating a new higher standard agents and officers have to meet before they can make an arrest.

The secretary’s rules also require officers to balance cases, giving credit to illegal immigrants who support families or have been here for a long time in violation of the law, or whose crimes are years old.

The court said that also flies in the face of the law, saying Congress required “categorical” treatment.

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Texas had sued to block the new rules, saying under the Mayorkas policy more illegal immigrant criminals will be allowed to remain here.

Numbers presented by the state pointed to dozens of people Homeland Security would have deported in the past but who have been, or will eventually be, set free under Mr. Mayorkas’s policy. Four had already committed new crimes in Texas, and at least one remains at large.

Mr. Mayorkas justified his policy by saying U.S. Immigration and Customs Enforcement has limited resources and detention capacity, and he said he wanted to focus those on the worst offenders.

The judges said that argument “was not in good faith.”

Even as he complained about money, Mr. Mayorkas submitted budget requests asking for even less detention space than Congress gave him, the judges said.

They added: “We further note the oddity that DHS emphasizes ‘limited resources’ as its main defense of a rule that increases the complexity of its purportedly already-overwhelmed agents’ jobs.”

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

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