- The Washington Times - Saturday, June 11, 2022

A federal judge tossed out Homeland Security Secretary Alejandro Mayorkas’ policy limiting ICE’s targets for enforcement actions, ruling Friday that the government has a general duty to try to detain and deport immigrants without documentation who have significant criminal records or who have been ordered removed by an immigration judge.

Judge Drew B. Tipton said evidence produced in the case showed that under Mr. Mayorkas’ policy, migrants whom the law demanded be detained were in fact being released, including many with serious drug offenses, assault with a firearm, or sexual battery.

He said those are the types of cases Congress said it wanted to see detained and deported, and any policy that alters that scheme must fall.

“The legal issues are varied and complicated. But the core of the dispute is whether the Executive Branch may require its officials to act in a manner that conflicts with a statutory mandate imposed by Congress. It may not,” the judge said.

The ruling is the latest to challenge President Biden’s immigration policies. The new administration has also stumbled in its attempts to end several Trump-era border controls, such as the Remain in Mexico program.

Like Judge Tipton, many of those other cases emerged from judges appointed by President Trump, and they involved scoldings of Mr. Mayorkas for taking too many shortcuts to try to implement his vision.

In this case, Mr. Mayorkas issued a memo in September laying out new rules for what kinds of immigrants could be detained and arrested by agents and officers at Immigration and Customs Enforcement (ICE) and Customs and Border Protection (CBP), which combine to handle immigration matters in the interior and at the border.

Mr. Mayorkas said it is no longer enough for someone to be in the country illegally. To be a target for arrest, detention and deportation someone must have triggered a priority, either having just recently jumped the border, been considered a national security risk or had a serious enough criminal offense.

Drug offenses, multiple felonies, human traffickers, money launderers and weapons violators didn’t automatically qualify. Even migrants who had been a final deportation order from an immigration judge weren’t considered automatic targets, Judge Tipton said.

The result of the new policies was a dramatic drop in criminals being arrested and detained, the judge said.

Judge Tipton said Mr. Mayorkas had tried to cloak his broad prohibitions under terms like “priorities” and “discretion.” But the result was still an attempt to suspend the law as written, the judge said.

He said evidence in the case showed agents and officers considered Mr. Mayorkas’ policy to be “substantially limiting if not eliminating their discretion to make detention decisions.”

“The result is that an ostensibly permissive Final Memorandum is effectively mandatory at the most important level: the agents and officers who are tasked with enforcing the law,” the judge wrote.

The government’s ability to detain immigrants who are in the U.S. illegally is at the heart of the case — and indeed, at the heart of many of the arguments over immigration enforcement.

When people can be detained pending their immigration court proceedings, they can be quickly deported. When they are released into communities, deportation comes years in the future or, more often, never.

But detention capacity is limited.

The Trump administration, by shifting funds, surged bed space to an average of about 55,000 a day.

Under Mr. Mayorkas, Homeland Security has asked for just 25,000 beds, and sought to eliminate family detention altogether. Currently ICE is funded for about 34,000 beds, but has been leaving many of them empty.

The average daily population in April was just 19,176, Judge Tipton noted.

Another area where Mr. Mayorkas’ policy has made a dent is in “detainer” requests to state and local prisons and jails to hold immigrant targets in their custody for ICE to pick up.

Under Mr. Mayorkas’ rules, ICE has been canceling a number of detainers it had placed previously.

Texas says ICE canceled 170 detainers from the start of the Biden administration to Feb. 15, 2022, though it did reissue detainers or take custody of 29 of those.

Among the rest, 55 had serious drug offenses on their record, Judge Tipton said. And 17 of those whose detainers were canceled had already broken their terms of release, four committed new crimes and one is still at large.

The case was brought by Texas and Louisiana, who said released criminals have an impact on their own operations, both in terms of more crime and more costs to the states.

Judge Tipton said that was enough of an injury for them to be able to sue.

He ordered a revocation of Mr. Mayorkas’ memo.

America First Legal, an organization of former Trump administration officials that had backed Texas and Louisiana, predicted the Biden administration would appeal, but called Judge Tipton’s decision “a momentous occasion.”

“This is a crucial victory for the rule of law in America — and a major defeat for the open borders radicals in the Biden administration,” said Stephen Miller, the group’s president.

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

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