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Federal Judge Suspends Biden’s 100-Day Deportation Moratorium

Posted by Matthew Green | Feb 09, 2021 | 0 Comments

Since entering office, President Biden has issued a number of executive actions relating to immigration.  One of these actions overturned a 2017 executive order made by former president Trump which maximized the enforcement priority of all undocumented immigrants. Following this reversal, Acting Homeland Security Secretary David Pekoske issued a memorandum to U.S. Immigration and Customs Enforcement, Customs and Border Protection, and Citizen and Immigration Services which declared a review of policies and practices concerning immigration enforcement. During the course of this review, the document calls for “a 100-day pause on certain removals to enable focusing the Department's resources where they are most needed.” This pause on deportation does not include immigrants who pose a national security risk or are suspected of terrorism or espionage, nor does it shield those who entered the country after November 1, 2020.  On January 22, the day the moratorium went into effect, Texas Attorney General Ken Paxton filed a lawsuit against the policy.   

Why did the state of Texas sue over the deportation moratorium?

In order to fully understand the lawsuit, we must return to the final days of the previous administration. On January 8, Ken Cuccinelli, the then second-in-command at the Department of Homeland Security (DHS), signed an agreement with Texas which then required the department “to consult Texas and consider its views” prior to changing policies related to the enforcement of federal immigration law. 

As part of its arguments against the deportation moratorium, Texas argued in court that the policy violated this agreement from early January, as well as federal immigration law that governs arrests and deportations. Paxton, as quoted by NPRalso claimed that the state “defends the largest section of the southern border in the nation” and that “failure to properly enforce the law will directly and immediately endanger citizens and law enforcement personnel.”

It must be noted that the agreement made between Texas and DHS is legally dubious. U.S. News reports that “experts say the agreements were a last-ditch effort by the Trump administration to curtail potential future actions by the Biden administration.”  CBS News reports similarly, citing that “DHS signed similar deals with other states and localities, but legal experts have questioned whether they are legally enforceable” (emphasis added).

The Justice Department lawyers representing the Biden administration did not fail to question the legality of the agreement. In court, they argued that it was, in fact, “invalid” and “unenforceable.”  They wrote in a filing that “The federal government has plenary power over the enforcement of federal immigration law and an outgoing administration cannot contract away that power for an incoming administration.” In addition to this, they also argued that Texas had failed to show that the moratorium caused the state harm. 

The Ruling

In suing the Biden administration, Attorney General Paxton requested a temporary restraining order on the deportation moratorium. On January 26, Trump-appointed U.S. District Judge Drew Tipton of the Southern District of Texas granted this request; the policy will be paused for at least 14 days.  In the meantime, Judge Tipton will consider the lawsuit.

This temporary restraining order blocks DHS from maintaining the freeze on deportations.  The ruling does not, however, prohibit the administration from enforcing the rest of the provisions in the memorandum. 

Judge Tipton said in his ruling that the temporary block was not granted on the basis of the January 8 agreement, which raise issues “of such gravity and constitutional import that they require further development of the record and briefing.”  Instead, his decision was deemed appropriate under the Administrative Procedures Act, a law which “regulates policy changes and the way they are implemented by the federal government.” He also found that Texas had shown that the moratorium would inflict harm to the state. Furthermore, he described the policy as not only “arbitrary and capricious,” but also in contradiction to immigration law.  The Biden administration, according to Tipton, failed “to provide any concrete, reasonable justification” for the moratorium.

Following this outcome, the White House made a statement to CBS News: "We're confident that as the case proceeds, it will be clear that this measure was wholly appropriate in ordering a temporary pause to allow the agency to carefully review its policies, procedures, and enforcement priorities – while allowing for a greater focus on threats to public safety and national security.” A 100-day pause on deportations would, as the statement points out, provide the agency with time to make careful review, especially of the cases of individual detainees. Time would certainly be needed—according to ICE, there are currently 14,195 people in immigration detention centers nationwide.

About the Author

Matthew Green

Managing Attorney. Green | Evans-Schroeder (formerly Law Offices of Matthew H. Green) focuses on the aggressive defense of immigrants. A native of Arizona, Mr. Green understands the difficulties that immigrants and families of immigrants face when a loved one is charged with a crime. He knows how frightening it can be for some...

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