Deportation pause blocked by Trump-appointed judge—01-29-21
Immigration news, in context
This is the sixty-fifth edition of BORDER/LINES, a weekly newsletter by Felipe De La Hoz and Gaby Del Valle designed to get you up to speed on the big developments in immigration policy. Reach out with feedback, suggestions, tips, and ideas at BorderLines.News@protonmail.ch.
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This week’s edition:
In The Big Picture, we look at the recent injunction against President Biden’s 100-day deportation pause.
In Under the Radar, we examine some recent immigration-related executive appointments and what they portend.
In Next Destination, we discuss executive actions that are expected next week.
The Big Picture
The news: A federal judge in Texas temporarily blocked the enactment of a 100-day pause on most deportations, which was part of President Joe Biden’s early push on immigration.
What’s happening?
During the presidential campaign, one of Biden’s more specific and ambitious promises on immigration executive action was a moratorium on deportations and reevaluation of the enforcement policies immediately upon taking office. On inauguration day, he set the wheels in motion by having his acting Homeland Security secretary issue a memo ordering interim guidelines for enforcement priorities, a general review of enforcement practices, and a stop to removals for people with final orders.
We went into more detail in last week’s newsletter, but the memo amounts to a pretty comprehensive pause. There were some exceptions; for example, the moratorium doesn’t apply to those who had arrived in the country after November 1, 2020. This, along with the lack of action on detention and the fact that people would still be detained even as deportations stopped, dissatisfied some advocates, but it was nonetheless a pretty sweeping move, and one rooted in the executive’s longstanding discretion on immigration enforcement.
Almost immediately, Texas Attorney General (and noted defendant in securities fraud cases) Ken Paxton filed a lawsuit seeking to have the memorandum declared unlawful and thrown out, or at least enjoined or postponed (and have the federal government pay for Texas’ attorney fees). The complaint leaned heavily on contractual agreements signed between DHS and several states and localities in the last weeks of the Trump administration, as first reported byBuzzFeed News. These agreements were designed to essentially force the department to give these jurisdictions advance notice of and a chance to weigh in on changes to federal immigration policy, leading to somewhat absurd claims in the Texas lawsuit like a count of “Failure to Provide Notice to and Consult with Texas” in rolling out the federal policy.
The presiding judge in this case is Drew Tipton of the Southern District of Texas, one of the many federal judges nominated by Trump for the positions left open by former Senate Majority Leader Mitch McConnnell’s refusal to consider Obama-era nominees. The Federalist Society member was confirmed by a straight party-line vote in June of last year, receiving zero Democratic votes. On Tuesday, Tipton granted the plaintiff’s request for a nationwide temporary restraining order, enjoining the government from following the 100-day moratorium provision of the memo for fourteen days while the case continues to be litigated (not the whole memo; the other provisions can remain in effect).
Ultimately, Tipton emphasized that this decision was not made on the basis of Texas’ arguments around its agreement with DHS—issues that he considered “of such gravity and constitutional import that they require further development of the record and briefing prior to addressing the merits”—but on the basis that it was likely the government had violated federal immigration law the Administrative Procedure Act. The emergency injunction was appropriate because, in Tipton’s estimation, allowing the government to defer deportations would cause irreparable harm to the state of Texas.
Regular readers of the newsletter will be familiar with the APA, which proved to be a mighty stumbling block to Trump and Stephen Miller’s immigration agenda. Essentially, it holds that regulatory shifts and new federal policies must go through some sort of process, often involving public notice and comment, and can’t be made in a way that is arbitrary and capricious. In this context, the APA invocation is a bit puzzling given the clear precedent on the executive’s ability to prioritize and defer enforcement; this was not a policy creating new rules or procedures, but rather pausing a certain type of enforcement for a set period of time.
The argument around immigration law is a little more straightforward: 8 U.S.C. § 1231(a)(1)(A) notes that “when an alien is ordered removed, the Attorney General shall remove the alien from the United States within a period of 90 days.” This provision has previously been invoked to guarantee that detainees who cannot be removed in that period are released from detention, i.e. the precedent falls more along the lines of a 90-day limitation on the government’s ability to hold these individuals without removing them. Tipton takes it as a statutory demand on the government, i.e. it must remove those with final orders within 90 days.
On the harm front, the decision is a bit puzzling. Tipton seems to take at face value Texas’ specious claims that this pause will force it to incur significant costs. Part of the issue here seems to be conflation of undocumented immigrants as a whole with people with final orders of removal, who are ultimately a small fraction of this whole and are almost all in detention. Texas’ arguments that it will have to spend large amounts on public services like education makes no sense given that the memo doesn’t call for releases from detention except for the tiny number of people who will be both subject to the moratorium and have final orders of removal for 90 days or more. It also deploys the evidence-free argument that a pause in deportations will encourage further illegal immigration. Tipton accepts these claims, perhaps a consequence of his extremely limited experience on the immigration front.
How we got here
The executive has vast powers when it comes to immigration. Trump, for example, didn’t sign a single immigration bill during his time in office—all of his administration’s immigration policies, from the Remain in Mexico program to the ban on travel from Muslim-majority countries, were enacted via executive action or changes to administrative procedure. (And, as we’ve discussed before, the only reason federal courts ultimately ruled against many of these changes is because the administration broke the laws governing executive rule-making processes, not because Trump was acting out of turn.)
In theory, this all means that Biden should be able to reverse Trump’s immigration policies—and enact new ones—fairly quickly and without much interference. In practice, we’re already seeing immigration restrictionists adopt the same tactics that advocates used against the Trump administration. And on top of all that, Trump and Stephen Miller seem to have spent their last few weeks in power setting up as many hurdles as possible for the incoming administration. Late last year, DHS signed agreements with several jurisdictions requiring the department to give advance notice of any proposed policy changes. These jurisdictions, which include the state of Texas, would then have six months to review the policies and submit comments regarding the proposed changes—an obvious attempt to stymie any day one action taken by the Biden administration.
The federal immigration bureaucracy can and often does share power with state and local jurisdictions with regards to immigration enforcement. Some ICE detention centers are operated by local governments; every time someone is booked into a jail or state prison, a federal program requires that their data be run through several federal databases for immigration enforcement purposes; under 287(g) agreements, local police departments and sheriff’s offices can enforce some aspects of immigration law, including temporarily detaining people so they can be arrested by ICE. But the executive branch can’t offload its policymaking power to state or local governments, even though it can—and in some cases is required to—take local concerns into account.
In 2014, for example, President Obama took executive action expanding Deferred Action for Childhood Arrivals (DACA) and creating a new program called Deferred Action for Parents of Americans and Lawful Permanent Residents (DAPA). In the same way that DACA lets undocumented people who meet certain requirements live and work in the U.S. without granting them legal status, DAPA would have given the undocumented parents of U.S. citizens or permanent residents work authorization and exemption from deportation.
Texas and 25 other states sued the Obama administration over DAPA, claiming the program would lead to more unauthorized migration and, more pertinently, that it violated the Administrative Procedure Act. The violation didn’t lie in the Obama administration’s authority to defer deportations for certain classes of individuals, but rather in its failure to properly notify state and local jurisdictions, which would have to take on new costs given the increase in people applying for state-subsidized driver’s licenses.
All of this is to say that although the executive branch is required, to some degree, to take local considerations into account while making immigration policy changes, the recent DHS agreements with Texas and other states are a drastic overreach. This isn’t the first time the Trump administration attempted to give state and local jurisdictions more authority over immigration policy: in 2019, the administration began requiring jurisdictions to opt in to receiving refugees as part of its broader attempt to decimate refugee resettlement efforts in the U.S.
At the same time, the Trump administration worked to thwart local attempts to shield immigrants from deportation by threatening to withhold federal funding from so-called “sanctuary” cities and ramping up federal immigration enforcement in those areas.
What’s next?
The case is continuing, and ultimately the restraining order is only set to be active for 14 days as of Tuesday. At the end of this period, Tipton might issue a new, longer injunction, or allow the policy to go back into effect if he’s unconvinced by Texas’ subsequent arguments. It’s unlikely that he would issue any final ruling in this timeframe. The federal government could seek to have his restraining order overturned by a higher court, but so far it doesn’t appear to have moved to do that. Ultimately, the ruling prevents a total pause on deportations as a matter of policy, but the administration still has wide latitude to de-emphasize deportations and slow them down.
One of the more interesting things to keep an eye on is how the judge ultimately engages with the question of the legality and applicability of the DHS-Texas agreement. He didn’t issue the restraining order under that premise, but he didn’t dismiss it either, signaling at least an openness to view the contract as a proper legal tool. On its face, the enforceability of such a contract seems very dubious for the simple fact that, as we note above, Congress has delegated immigration enforcement regulatory decision-making to the executive, and the executive cannot further delegate this to third parties. Even when there is a requirement for the executive to consult on decisions (usually with Congress), this is statutorily required, not something that can be entered into via contract.
A finding that these contracts are indeed enforceable could hit the brakes on pretty much every Biden immigration policy going forward. Every time the administration tried to enact a change, it would get sued by, for example, the Rockingham County Sheriff in North Carolina, who would effectively get veto power over the entirety of federal immigration policy. This was, of course, the intent behind signing these agreements on the Trump administration’s way out the door.
Either way Tipton ultimately rules, the loser will probably escalate this to the Circuit level, starting off a new era of endless litigation around immigration policy, just as there was under Trump. In the event that the policy is allowed to go forward, it’s not clear if the 100 days would reset or continue on from where they left off, or if the criteria would otherwise be tweaked (for example, if the November 1, 2020 cutoff would be advanced).
Under the Radar
Biden hires former immigration judges, advocates for DHS positions
The Biden administration has hired several heavy-hitters for key roles within DHS and its component agencies, signaling a desire to reverse the Trump administration’s immigration policies. Ashley Tabaddor, a longtime immigration judge and former head of the immigration judges’ union, will serve as chief counsel for U.S. Citizenship and Immigration Services. Adam Hunter, formerly of the Refugee Council USA, will now work as DHS’s deputy assistant secretary on immigration. David Shahoulian, who worked for DHS under the Obama administration, will be the assistant secretary for border security and immigration.
Much like Biden’s early comments and executive orders, these appointments suggest that his administration will be far less restrictive than Trump’s but may not go as far as immigration advocates may hope. Immigrant rights activists had plenty to criticize during the Obama era, including an increase in deportations, the detention of immigrant families and children, and the continued criminalization of immigrants. Whether Biden seeks to return to the Obama-era status quo or push immigration policy forward remains to be seen. In any case, it’s likely he’ll face far more opposition from the left than Obama did—partly because Trump’s extreme restrictionist agenda brought immigration into the public consciousness.
Next Destination
Forthcoming Biden executive orders on asylum seekers, refugees, and separated families
The Biden administration planned to issue several executive orders regarding immigration today (Friday, Jan. 29) but has since pushed the timeline back, Reuters reports. Most of the orders will reverse or entirely end Trump-era immigration policies.
One will dismantle the Migrant Protection Protocols, a program that began in 2019 and requires some asylum seekers from Spanish-speaking countries to wait in Mexico while their cases are adjudicated by U.S. immigration courts. The Biden administration has already stopped enrolling people in the MPP, also known as the “Remain in Mexico” program, but has said it’ll take time to end the program in its entirety.
A separate order will end three asylum agreements the U.S. reached with El Salvador, Guatemala, and Honduras, each of which allows the U.S. to send asylum seekers to those countries to have their cases adjudicated there instead—even though none of the three countries has a functional asylum system. Yet another order will create a task force to reunite families who were separated at the U.S.-Mexico border under the 2018 “zero tolerance” policy, which will be overseen by newly appointed DHS Secretary Alejandro Mayorkas.
Per Reuters, other orders will reinstate the Central American Minors program, which lets some children apply for asylum from their home countries rather than in the U.S.; end a Trump-era rule blocking anyone who passed through another country on their way to the U.S. from obtaining asylum, which is currently in litigation; promote citizenship and remove barriers on legal immigration; and lay out new guidelines for his administration’s refugee program.
Since none of the orders have been published yet and the reporting on their specifics remains vague, it’s hard to say what something like “removing barriers to legal immigration” means. It’s clear that Biden is committed to undoing most of Trump’s immigration policies, like Remain in Mexico and the asylum ban. What’s less clear is to what extent he plans on changing the immigration system to make it less permissive and more punitive—especially now that these orders are delayed.