A Biden administration policy that prioritized the detention of undocumented immigrants that is considered a threat to public safety and national security has been suspended since Saturday, making millions of people vulnerable to deportation. .
A Texas federal judge had ruled the policy of illegal prioritization on June 10, a ruling that went into effect Friday afternoon after a federal court of appeals issued no decision to block it. The Department of Homeland Security said it effectively had no discretion under the ruling to set priorities on how its agents enforced the deportation laws of immigrants from the country.
“While the department strongly disagrees with the South Texas District Court’s decision to overturn the guidelines, DHS will respect the court’s order as it continues to appeal,” the department said in a statement.
He said Immigration and Customs Enforcement agents would make enforcement decisions on a case-by-case basis “in a professional and responsible manner, informed by their experience as law enforcement officials and in the best way possible. protect against the greatest threats to the homeland. ” ”
The court order leaves the government in an unusual situation. Recent administrations have set at least some priorities for establishing which undocumented immigrants should be targeted for deportation, in most cases trying to identify people who have committed crimes or pose some other threat before moving on to others. The Trump administration significantly expanded the range of immigrants identified for deportation, but even then, there were some guidelines for targeting criminals, legal experts said.
The removal of the guidelines is likely to renew some of the fears that immigrant communities achieved during Donald J. Trump’s presidency, when almost anyone without legal residency was detained, even though the administration de Biden is committed to taking a measured approach to implementation even without a prioritization policy.
In a political note to immigration officers last year, Secretary of Homeland Security Alejandro Mayorkas had ordered officers not only to prioritize immigrants involved in crimes and security threats, but to take other factors into account. when deciding whether to detain them, such as whether they had lived in the United States for many years, were elderly, or had children born in the United States.
This leaves almost all of the country’s estimated 11 million undocumented immigrants theoretically open to arrest and deportation, although exactly who the target would be and how is unclear.
“The problem with moving away from priorities is that there is no standardization, no rhyme, no reason,” said Karen Tumlin, founder of Justice Action Center, an immigrant rights group.
“A 20-year-old person here who is the father of U.S. citizen children could be subjected to an expulsion proceeding,” Ms. Tumlin said. “Someone who leaves their child at school and has never committed any crime could be arrested.”
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Biden’s immigration policy was the last to be blocked by the courts based on challenges filed in conservative-led states, in this case Texas and Louisiana.
Judges have also blocked the administration from lifting pandemic-related restrictions at the border, renewing protections for young immigrant “dreamers” who arrived in the country as children and canceling a policy that forces many to asylum seekers to remain in Mexico while their immigration cases remain. considered by U.S. courts.
In the September 2021 political note, Mr. Mayorkas ordered immigration officers to use “discretionary authority” to decide who should be arrested and deported from the country.
Being present in the country without authorization “should not in itself be the basis of an enforcement action,” the note said. “We will use our discretion and focus our enforcement resources in a more specific way,” targeting first those who posed a threat to public safety or national security, he specified.
“Most undocumented noncitizens who could have been expelled years ago contribute to members of our communities,” the memorandum said, noting that the federal government’s exercise of discretion in immigration matters was a “deeply rooted tradition” that was supported by law.
The new priorities marked a change in the control of immigration in the interior of the country. The change was part of a broader effort by President Biden to adopt what he called a more humane immigration strategy than his predecessor, whose administration participated in much more widespread immigration arrests.
ICE agents in the Trump era often raided homes or workplaces to arrest immigrants who had recently been identified for expulsion, sweeping others who were present, sometimes mere spectators. Officers carried out large-scale operations in the so-called sanctuary cities and made hundreds of arrests.
Fearing that they might be arrested, many unauthorized immigrants during this period refrained from spending time outdoors with their families and limited their outings to trips needed to buy groceries and go to work.
The Obama administration deported millions of people, but did not carry out major incursions into the workplace, and most of the people eliminated were recently cross-border. He also gave priority to criminals for deportation.
The lawsuit that led to Friday’s ruling was filed by Texas and Louisiana, who argued that their states faced tensions over services, such as health care, when they were required to provide them with a large number of undocumented immigrants. They also claimed that there was an increased risk of crime for their communities when the government did not evict people who were in the country illegally, although studies have shown that undocumented immigrants are less likely to commit crimes than other residents.
In the lower court’s decision, Judge Drew B. Tipton, appointed by Trump, concluded that the Secretary of Homeland Security’s decision to adopt priorities was “arbitrary and capricious” and that federal law required a series of procedures before ‘this policy change, including a public change. comment period.
He also ruled that the policy violated immigration law because it “ties the hands” of agents in the field and “changes the norm” for who they can arrest and when.
The judge had suspended his decision to allow the government to file an emergency appeal. But the stay expired Friday, and the U.S. Court of Appeals for the Fifth Circuit had not yet issued a decision, leaving Judge Tipton’s order to take effect.
Immigrant advocates who supported the policy said immigration agencies have long received guidance from the White House. They said the Supreme Court, which is expected to be asked to rule on the current case, had previously ruled that the executive had discretion in immigration matters, including the deportation process.
Rebekah Wolf, a political adviser to the American Immigration Council, said the court ruling “could force the administration’s hand to make a mass indiscriminate application.”
Some of those who have advocated a tougher line on immigration applauded the lower court’s decision, arguing that immigration laws should be applied uniformly.
They said agents could not be expected to make value judgments about whether an undocumented immigrant should be able to remain in the United States. Anyone with a good argument against deportation could present the case to an immigration judge, said Andrew Arthur, a law and policy fellow at the Center for Immigration Studies, who favors restricting all immigration.
“Congress doesn’t allow immigration officers, nor can they expect them, to assess whether these are good parents, Little League coaches, or whether they are ushers in their local church,” he said. “ICE officers don’t have a crystal ball or a magic score sheet to know everything that happens in a person’s life.”
Most of the millions of unauthorized immigrants have lived in the country for at least a decade, often with U.S.-born children and deep ties to their communities. About two-thirds of undocumented adults participate in the workforce, according to the Pew Research Center.
“The ruling will generate more fear and uncertainty among people who have lived in our communities for years and decades,” said Sirine Shebaya, executive director of the National Immigration Project.
Government attorneys argued that the policy was a reasonable use of discretion that made sense given the limited resources of the Department of Homeland Security.
Even before Biden took office, a large number of migrants arrived at the southern border. This year, record numbers have been surpassed, coming from Mexico and Central America, as well as from Asia, Europe and Africa, where the Covid-19 pandemic caused widespread job losses.
People released from detention to apply for asylum can remain in the country until they have exhausted their legal claims before the courts and are ordered to leave. Others have crossed the border without following the legal asylum process; many of them can be deported immediately. The Biden administration’s policy called for immigration officers to also focus on those recent arrivals.