Court Allows ICE to Use Enforcement Priorities Set by the Biden Administration

by Raul Pinto

The Fifth Circuit Court of Appeals on Wednesday stayed a significant part of an earlier decision by the Northern District of Texas that would have blocked the implementation of the Biden administration’s immigration enforcement priorities. In doing so, the Fifth Circuit emphasized that decisions regarding whom to detain and prosecute remain the purview of the executive branch, in this case U.S. Immigration and Customs Enforcement (ICE).

The administration’s enforcement priorities were set in two memos issued early this year.

In a memo issued by the U.S. Department of Homeland Security (DHS) on January 20, DHS would focus its resources in removing individuals who: 1) posed a threat to national security; 2) were arrested while trying to enter the United States unlawfully; or 3) presented a risk to public safety by having been convicted of an aggravated felony as defined in the immigration law. A follow-up ICE memo issued on February 18 allowed ICE agents to arrest individuals who were outside of these three categories with supervisory approval.

Texas and Louisiana sued to block the administration from implementing these new priorities. Judge Matthew J. Kacsmaryk, a Trump appointee, ruled that ICE—as a law enforcement agency—has no discretion to decide who it arrests and charges with a violation of the law. Instead, the judge ruled, ICE must take into custody immigrants who are deportable or inadmissible.

As noted by the Court of Appeals, this broad interpretation ignores long-standing precedent granting law enforcement discretion about charging decisions. The decision also raises concerns of whether the agency has the resources to enforce the law in such an expansive manner.

However, the recent Fifth Circuit decision did not completely block Judge Kacsmaryk’s injunction. The Court’s ruling only applies to the enforcement discretion allowed in ICE’s decisions before detaining an individual. The injunction does not apply to individuals who are facing enforcement actions and are subject to so-called mandatory detention, like detainees with qualifying convictions against whom ICE has lodged a detainer or individuals subject to removal orders, as the Fifth Circuit noted.

The Fifth Circuit made the decision to block Judge Kacsmaryk’s ruling while the parties continue to litigate the merits of the lawsuit. Thus, the government will need to continue to defend its enforcement priorities or issue new guidance. The government informed the Court that will happen later this month.

In the past, different administrations have implemented priorities for enforcing immigration laws and have not faced court challenges.

President Obama established enforcement priorities in 2014 that focused on individuals who posed a national security threat, had serious criminal records, and people with final orders of removal, among others. In contrast, when President Trump took office, his administration established broad priorities for enforcement, which subjected nearly all undocumented immigrants to possible enforcement.

The Court of Appeal’s decision blocking the lower court’s ruling contributes to a lack of clarity about how ICE enforces immigration laws.

Recognizing a need for more publicly available information, several groups filed a request under the Freedom of Information Act asking for information, including weekly reports, about the agency’s enforcement activities. Even as DHS’ ability to set its own enforcement priorities remains unclear, it is important that the public understand how ICE continues to enforce immigration laws and how our communities are impacted.

This post originally appeared on Immigration Impact .Reprinted with permission.


About The Author

Raul Pinto is a Senior Staff Attorney at the American Immigration Council. His work focuses on promoting transparency in the field of immigration, helping to lead the Council's Freedom of Information Act (FOIA) work, and supporting litigators, open-government organizations, and other advocates encourage agency transparency on immigration issues, with a focus on enforcement and due process. Previously, Raul was a Senior Attorney with the North Carolina Justice Center representing low-income immigrants at all stages of the immigration process. Prior to his work at the NC Justice Center, Raul was a staff attorney at the ACLU of North Carolina investigating civil rights violations with an emphasis on immigrants' rights. Raul holds a J.D. from City University of New York School of Law and a B.A. from Rutgers University.


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