The destruction of immigration enforcement by the Biden administration is deliberate. It’s time people stop referring to Biden’s immigration incompetence; the people staffing the Biden bureaucracy are very competent at damaging our sovereignty and public safety.A case brought by Texas and Louisiana to force the Biden administration to enforce existing immigration laws proves the point, again. The lawsuit sought to force the administration to obey the law requiring that illegal aliens convicted of felonies or subject to final orders of removal be taken into federal custody rather than allowed to roam free. Biden administration policy rejected that. Think about that, the Biden administration wants to let illegal aliens convicted of felonies to roam free rather than obey the law.As with past non-enforcement of immigration laws by the Obama administration, the Biden administration tried to hide behind notions of prosecutorial discretion and prioritization to justify policy changes contrary to law.The case is Texas v. United States, filed on April 6, 2021. (That’s right, over a year ago.) Here is an excerpt from the Amended Complaint:
1. The Biden Administration is refusing to take custody of criminal aliens despite federal statutes requiring it to do so. Instead, Defendants have issued and implemented a series of unlawful agency memoranda that allow criminal aliens already convicted of felony offenses to roam free in the United States. Such aliens belong in federal custody, as Congress required.2. When the Texas Department of Criminal Justice (“TDCJ”) incarcerates an alien already convicted of a felony criminal offense, it informs U.S. Immigration and Customs Enforcement (“ICE”). If, pursuant to federal law, the alien should be removed from the United States when his sentence expires, ICE can send TDCJ a detainer request. Upon receiving such a request, TDCJ will hold an alien instead of releasing him into the community.3. But since the inauguration, the Biden Administration has rescinded at least 150 detainer requests previously issued to TDCJ, and ICE has declined to take custody of dangerous criminal aliens that it had previously sought.4. In Louisiana, an alien convicted of a felony criminal offense may be held in a State prison operated by the Louisiana Department of Public Safety and Corrections (“LDPSC”) or may be held pursuant to an agreement with the State in a local Parish prison. Upon receiving an ICE detainer request, the LDPSC or the local Sheriff will hold an alien pending retrieval by ICE instead of releasing him into the community. The Federal Government also operates federal detention facilities in Louisiana, where federal detainees are held pending removal and thereafter deported. ICE also has a Field Office in New Orleans, Louisiana, where decisions are made and policies are implemented resulting in the failure to remove illegal aliens subject to mandatory removal. Upon information and belief, ICE is not removing individualssubject to mandatory deportation, causing individuals in facilities in Louisiana to be released in local communities in Louisiana.5. That is indicative of a broader shift in federal policy that began on the first day of the Biden Administration and has resulted in a “crisis on the border.”1 The detainer releases themselves are directly attributable to “interim guidance” issued by the United States Department of Homeland Security (“DHS”) (the “January 20 Memorandum”) and ICE (the “February 18 Memorandum”) in memoranda issued earlier this year. As a result of those memoranda, ICE is now failing to issue detainer requests for other dangerous criminal aliens in Texas.6. Federal law requires Defendants to take custody of many criminal aliens, including those with final orders of removal, those convicted of drug offenses, and those convicted of crimes of moral turpitude. By refusing to take these criminal aliens into custody, Defendants have disregarded non-discretionary legal duties.7. Defendants’ actions violate the Immigration and Nationality Act, the Administrative Procedure Act (“APA”), binding agreements DHS negotiated with the State of Texas and the State of Louisiana (the “Agreements,” described infra at III.D.), and the United States Constitution.8. DHS has now issued a third memorandum on this issue (the “September 30 Memorandum”). It suffers from the same legal infirmities as the Administration’s first two attempts and will have the same effect of reducing enforcement, including the issuance of detainers for criminal aliens who have committed aggravated felonies, crimes of moral turpitude, and drug crimes, as well as aliens with final orders of removal.9. This Court can and should set aside the agency actions leading Defendants to violate federal law.
After a year of litigation and a bench trial, the Court ruled against the administration on June 10, 2022.
The Memorandum Opinion and Order provides, in part:
This case is the culmination of a series of challenges to immigration-related memoranda issued within the Department of Homeland Security. 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.This past September, the Secretary of the Department of Homeland Security issued a rule—self-styled as a memorandum—governing civil immigration enforcement. The States of Texas and Louisiana say this memorandum conflicts with detention mandates under federal law. The Federal Government, in response, tries to reconcile the apparent contradiction between its memorandum and federal law. The Federal Government’s explanations fall short.Lawmaking is vested by the People in Congress. Congress has long used its legislative power to craft immigration law which will ultimately be enforced by the Executive Branch. The Executive Branch’s statutorily authorized discretion on civil immigration enforcement has historically ebbed and flowed. In the 1990s, Congress reigned in the Executive Branch’s discretion by mandating detention of criminal aliens1 or aliens with final orders of removal. The wisdom of the statute passed by Congress and signed into law by the President has no bearing here. The passions of the present sometimes conflict with the views of the past. But the law remains unless it is repealed or replaced. And the two statutes at issue in this case are still the law of the land.
[fn. 1 – “Criminal alien” is the term used by Congress in the statute. 8 U.S.C. § 1226(c); see also Johnson v. Guzman Chavez, ____ U.S. ____, ____ n.2, 141 S.Ct. 2271, 2280 n.2, 210 L.Ed.2d 656 (2021) (discussing detention of “certain criminal aliens” under Section 1226(c)). When used in this opinion, the Court refers to criminal aliens as those who have committed the offenses articulated in the statute.]
That brings us to the relevant immigration statutes. This case is not about aliens in general, or even aliens who are in the United States illegally. Sections 1226(c) and 1231(a)(2) of Title 8 of the United States Code state that the Executive Branch “shall” detain aliens convicted of specific types of crimes or who have final orders of removal. The Federal Government acknowledges that some immigration statutes mandate detention. But it disputes that Sections 1226(c) and 1231(a)(2) are among those statutes. In support, the Federal Government offers an implausible construction of federal law that flies in the face of the limitations imposed by Congress. It also invokes discretion and prioritization in an effort to evade meaningful judicial review.
True, the Executive Branch has case-by-case discretion to abandon immigration enforcement as to a particular individual. This case, however, does not involve individualized decisionmaking. Instead, this case is about a rule that binds Department of Homeland Security officials in a generalized, prospective manner—all in contravention of Congress’s detention mandate.
It is also true that the Executive Branch may prioritize its resources. But it must do so within the bounds set by Congress. Whatever the outer limits of its authority, the Executive Branch does not have the authority to change the law. Using the words “discretion” and “prioritization,” the Executive Branch claims the authority to suspend statutory mandates. The law does not sanction this approach. Accepting the Executive Branch’s position would have profound consequences for the separation of powers.
It is worth repeating that the Federal Government agrees that certain immigration statutes contain mandatory detention provisions. The question, then, is whether the statutes here are mandatory. The answer is yes: Sections 1226(c) and 1231(a)(2) mandate detention. All of this matters because the Administrative Procedure Act compels federal courts to set aside agency rules that are contrary to law, are arbitrary and capricious, or failed to observe the requisite procedure. After a trial on the merits, the States have shown that the Secretary’s memorandum is all three. For the reasons that follow, the Court vacates the memorandum.2
[fn. 2 – The Court understands that some may find the terms “alien” and “illegal alien” offensive, and the Court’s intent is certainly not to offend. These terms are used in this opinion because they are contained in the statutes as well as official government documents quoted by the Supreme Court in a seminal immigration case….]
That footnote 2 is disturbing. There was no reason for the judge to apologize or explain the use of the term “illegal alien,” which is the legal term for people illegally in the counrty. But it shows how even a judge who gets the law right is subject to the public pressures of the word police.
So a good outcome. But the outcome is not the main point. The main point is that we have a federal government that deliberately and carefully, with great thought, refuses to enforce the immigration laws.
CLICK HERE FOR FULL VERSION OF THIS STORY