SCOTUS continues judicial activism, allows Texas district judge to halt national enforcement priorities—07-25-22
Immigration news, in context
This is the 130th 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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Programming note: BORDER/LINES is moving from a Friday afternoon to a Monday morning publication schedule from now on. This will help us balance it with our other responsibilities and hopefully let readers peruse it during their morning news catch-up.
This week’s edition:
In The Big Picture, we examine the effect of an order on ICE enforcement priorities issued through SCOTUS’ so-called shadow docket.
In Under the Radar, we discuss an increase in criminal prosecutions for illegal border crossings.
In Next Destination, we look at new ICE guidelines designed to help preserve parental rights among detainees.
The Big Picture
The news: In a short writ of certiorari agreeing to hear the United States v. Texas case next term, which involves the Biden administration’s immigration priorities, the Supreme Court declined to stay a lower court injunction that had blocked these priorities. (Yes, we know there are confusingly like five active cases in which Texas is suing the Biden administration over its immigration policies.) This means that, for now, the Department of Homeland Security cannot enact any enforcement prioritization whatsoever, despite clear precedent.
What’s happening?
While Supreme Court decisions get the most attention, the court exercises its power in a variety of other ways, including simply not taking cases at all and sending them back to lower courts for resolution, as well as by making decisions on the so-called shadow docket, i.e. procedural orders that have enormous bearing but are unsigned and often very short, with no legal argumentation. The court might, for example, block a lower court policy or let it stand; given that there’s no higher court, these procedural decisions are effectively controlling until there is a full merits decision either by itself or a lower court, which can sometimes take months.
These shadow docket orders not only have significant practical impact, but they often signal the court’s priorities or legal thinking and foreshadow future action. In this case, in a one-paragraph order, the Supreme Court denied a request made by the administration to stay the lower court’s injunction. It provided no rationale but instructed the parties to prepare to brief and argue before the court in its next term. That leaves us in a situation where ICE is legally barred from prioritizing internal enforcement in any way, retaining the Trump-era approach of having everyone in the country without documentation count as an equal priority for arrest and initiation of removal proceedings. SCOTUS hasn’t ruled here, but it has essentially allowed this situation to exist until it does, which will be next year; its refusal to stay the injunction indicates that, at the very least, it doesn’t think the states’ arguments have a chance at succeeding.
Before we get into the legal matters, let’s talk about the procedural history, because it’s a bit complicated. After a couple of interim guidances, Homeland Security Secretary Alejandro Mayorkas late last year issued final directives for prioritization for ICE enforcement. We’ll get into these more below, but very basically, they instruct ICE field officers to prioritize the arrest of undocumented immigrants convicted of certain crimes, who are considered threats to national security, or who have entered the country recently. It deprioritizes everyone else, and specifically tells officers to “evaluate the totality of the facts and circumstances” before taking someone into custody.
It’s worth noting that this isn’t particularly rare or shocking; every iteration of immigration enforcement leadership, and indeed every law enforcement entity in the country, has to make some decisions about when and how to enforce the law, and these are often laid out in departmental policies. As we’ve explored in depth before, immigration enforcement is an area where Congress itself very deliberately granted the executive branch broad discretion, which is partly why it was so malleable to Stephen Miller’s machinations without the need for legislative changes. This discretion can be weaponized to make the system more draconian, but it can also be used to make it more reasonable and humane, which these guidelines were intended to accomplish. The administration has a separate policy in place dealing with prosecutorial, not enforcement, prioritization, which is also on hold.
Once the preliminary guidelines were issued, two very similar lawsuits were filed: one by Texas and Louisiana, the other by Ohio, Montana, and Arizona, both alleging that the prioritization memos violated the law. The former resulted in the first injunction and vacatur against the preliminary guidelines by Texas District Judge Drew B. Tipton, who’s fast becoming the go-to man to frustrate Biden immigration priorities; the latter resulted in a separate injunction from Ohio District Judge Michael J. Newman. In both circumstances, the district judges agreed with arguments that the administration had violated both immigration law itself, which they found to require the detention of certain immigrants, and the Administrative Procedure Act. The administration appealed in both cases; in the Ohio case, the Sixth Circuit stayed the injunction, while in the Texas case, the Fifth Circuit declined a stay, creating a circuit split. It is the Texas case that now has made its way to SCOTUS, which similarly declined a stay.
Our edition after the Newman injunction delved more deeply into the legal arguments, but the gist is that the immigration legal provisions at issue are 8 U.S.C. §§ 1226(c) & 1231(a), which generally direct the government to take into and keep in custody individuals in removal proceedings who meet certain criteria, and to detain people who have received orders of removal, respectively. The administration is ostensibly violating not only these provisions, but the APA by issuing “arbitrary and capricious” guidelines that ignore these supposed responsibilities. The language of these provisions is pretty clear, but in practical terms, as we’ve noted, there has always been prioritization, because it is impossible not to have it.
It’s also rather notable that SCOTUS is happy to let another nationwide injunction against a Biden administration immigration policy stand after expressing steep frustrations with nationwide injunctions blocking Trump-era policies. As legal scholar and analyst Steve Vladeck noted on Twitter, SCOTUS granted eleven out of twelve stays of national injunctions for immigration policies at the request of the Trump administration, even if it later ruled against it on the merits. For Biden, it has granted zero out of two such requests.
Some perceptive readers may have also noticed here that just a few weeks ago we noted that, in the decision allowing the administration to terminate the Remain in Mexico program, the Supreme Court had specifically ruled that lower courts could not issue injunctions limiting the executive branch’s ability to execute a number of statutory border and immigration management functions, which would very much include internal enforcement. Specifically, SCOTUS had ruled that 8 U.S.C. § 1252(f)(1) unequivocally gives only itself the “jurisdiction or authority to enjoin or restrain the operation” of these provisions. So it’s a bit of a head scratcher for the court, less than a month later, to let stand a district court injunction that does precisely this.
It doesn’t go unaddressed in the short order, with the court writing that among the issues it will consider is “Whether 8 U.S.C. §1252(f)(1) prevents the entry of an order to ‘hold unlawful and set aside’ the Guidelines under 5 U.S.C. §706(2),” a reference to the Administrative Procedure Act. Yet, it seems plainly clear that, under SCOTUS’ own interpretation of that provision from less than a month ago, the injunction wouldn’t pass muster. This all represents further evidence that SCOTUS is content to jettison its own pattern and precedent to go in the direction that members ideologically want.
How we got here
On Biden’s first day in office, his administration announced that it would pause most deportations for 100 days while it analyzed and reevaluated ICE’s enforcement priorities. Judge Drew Tipton of Texas’s Southern District blocked the deportation moratorium after a legal challenge from—you guessed it—Texas, claiming the administration had violated both federal immigration law and the Administrative Procedure Act. Though deportations continued, DHS released its new enforcement priorities last October.
The new enforcement priorities emphasized individual ICE agent’s discretion, instructing agents to weigh a variety of factors when determining whether to arrest someone. As we explained in October, the formula essentially looks like this:
Prioritization tier + (aggravating factors - mitigating factors) = enforcement determination
In plain English, this means that under these new priorities, someone’s past criminal record wouldn’t automatically trigger an arrest, especially if there were other mitigating factors present, such as being a longtime resident or the head of a household. Under the new priorities, people who posed a threat to public safety or national security, as well as people who crossed the border after November 2020, would be prioritized for arrests and deportation. The new priorities also instructed officers to look out for employers and landlords who threatened organizers, employees, or tenants with deportation, and explicitly prohibited ICE from arresting anyone as retaliation for protesting or political speech—something the agency has been accused of doing in the past.
The idea of discretion and prioritization didn’t begin with Biden; every presidential administration has set its own enforcement priorities, and most have erred on the side of discretion to some degree. Not until Trump’s ICE director instructed officers to arrest “all removable aliens” encountered in the course of their duties was the idea of arresting every unauthorized immigrant in the U.S. thought of as a possibility. Even then, ICE did not have the resources to actually do so. Discretion with regards to immigration enforcement has never been a humanitarian tool; it’s primarily a way of acknowledging that there is no way to actually arrest every person in the country without authorization.
The entangling of the immigration and criminal punishment systems over the past three decades have expanded the list of who is “deportable.” The 1996 Illegal Immigration and Immigrant Responsibility Act, signed into law by President Bill Clinton, lengthened the list of crimes that make noncitizens subject to deportation. Another 1996 law, the Antiterrorism and Effective Death Penalty Act, broadened the list of so-called “aggravated felonies,” crimes that are grounds for deportation. (Despite the categorization, not all aggravated felonies are actual felonies.) While these laws made more people subject to deportation, the fact is that immigration enforcement remains highly discretionary; the mere fact that someone is deportable doesn’t mean that the government must deport them, just that it can.
Under George W. Bush, two types of immigrants were prioritized for arrest and deportation: people arrested at large-scale workplace raids, which became a hallmark of the Bush administration, and people who had come into contact with police either through 287(g) or Secure Communities. The former program, created in 1996 as part of IIRIRA, allowed local police departments and sheriff’s offices to enforce some aspects of immigration law through federal partnerships with ICE. Under the “task force model,” local law enforcement could ask people they encountered in the course of their duties about their immigration status. (In at least one instance, a sheriff’s office in Arizona had its 287(g) status revoked because its deputies were racially profiling Latinos. The Obama administration scrapped the task force model altogether due to allegations of civil rights abuses.) Under “jail model,” law enforcement officers are able to question people about their immigration status after they’ve been arrested for other crimes, and can then alert ICE that they have a non-citizen in custody who may be subject to deportation.
Meanwhile, under Secure Communities—first piloted in 2008 at the tail end of the Bush administration—anyone who is booked into jails or prisons automatically has their biometric information forwarded to DHS. The goal is to let ICE request detainers for people it wants to deport, meaning that the local law enforcement facility would hold them for up to 48 hours after they’re supposed to be released so they can instead be transferred to ICE custody. Obama dramatically expanded Secure Communities during his first term and made it mandatory for all states. At the same time, the Obama administration published its own set of enforcement priorities. In a memo, ICE’s then-deputy assistant secretary said the agency should focus its “limited enforcement resources” on people who had recently entered the country, those who posed a national security or public safety threat, and people who had already been ordered deported or had obtained their status by fraud.
The Obama administration scrapped Secure Communities in 2014 and replaced it with the Priority Enforcement Program (PEP). The new program was intended to rein in ICE’s use of detainers and, once again, prioritize the arrests and deportations of people who posed public safety or national security threats. Still, a 2016 Marshall Project analysis found that of the 300,000 deportations that occurred between 2014 and 2016, roughly 60 percent involved people whose only conviction was immigration-related or who had no criminal conviction whatsoever.
Although every administration has had its own enforcement priorities, and although Obama and his predecessors have acknowledged that it’s impossible to deport each and every one of the millions of undocumented immigrants in the country, it’s erroneous to think about these tools as “limited.” There were more than 3 million deportations under Obama alone—more so than under any other presidential administration—despite ICE’s enforcement priorities. Deportations lagged under Trump, not because of a lack of will but because ICE was conducting so many arrests that the backlog of pending immigration cases more than doubled during his four years in office, and many jurisdictions severely limited their own cooperation. (An increase in arrests was by no means the only factor here; a rise in new arrivals at the border, coupled with the Trump administration’s decision to prohibit immigration judges from administratively closing immigration cases, also contributed.)
All of this is to say that any claim that Biden’s enforcement priorities amount to an “open borders” policy is ridiculous on its face. If past enforcement directives are any indication, a more limited and targeted approach to immigration arrests would still lead to hundreds of thousands of deportations each year.
What’s next?
Since SCOTUS has already agreed to hear the Texas and Louisiana case, it won’t be hearing the Ohio, Montana, and Arizona one (though it’s possible it could move to consolidate the cases given the similar questions of law at issue). Since SCOTUS is of course the highest court, its decision to let the order stand is the final word on that until there are merits decisions, meaning that ICE will continue not to have prioritization standards. The practical results of this are becoming apparent nationwide as immigrants who would not ordinarily be considered priorities for arrest and removal.
In one case detailed by the San Diego Union Tribune’s Kate Morrissey, a Mexican man who had been in the United States for over twenty years, has two U.S. citizen children, and suffers from a chronic disease for which he needs specific medication was detained at one of his regular ICE check-ins and swiftly deported without his lawyers even being notified. He had a prior order of removal but had filed to reopen his case based on changed circumstances and was seeking cancellation of removal; however, under the injunction, ICE is practically barred from granting any differences.
While the status quo remains in place, more such longtime residents will be targeted. State and local sanctuary policies adopted en masse under the Trump administration will somewhat shield the undocumented in these places from the dragnet, but these protections aren’t absolute and of course the folks in less friendly states will be mucb more exposed. In the meantime, the ruling is also being interpreted by the administration as axing the memo that had been issued to ICE prosecutors directing them to not pursue or drop certain cases in immigration court, as that in itself would be deterministic as to enforcement outcomes in a way that could violate the order.
It’s not clear when exactly SCOTUS will take action here but it notes that “the case will be set for argument in the first week of the December 2022 argument session.” That means a decision would probably come sometime around mid-next year.
Under the Radar
Criminal prosecutions of migrants at the border increase
The Biden administration is arresting more migrants for crossing the border without authorization, according to federal data analyzed by the National Immigrant Justice Center. These criminal prosecutions are different from—but not unrelated to—immigration arrests. When someone crosses the border between ports of entry, they are typically arrested by Border Patrol and put in deportation proceedings overseen by the Executive Office for Immigration Review, an agency within the Department of Justice. That entire process, from the initial arrest to the deportation, if one occurs, is a civil matter. People who cross between ports of entry can also receive criminal charges for unlawful entry under 8 U.S.C. § 1325, or for unlawful reentry under 8 U.S.C. § 1326, which is what is increasingly happening now.
According to the data, 1,496 people have been charged with unlawful entry and 6,965 have been charged with unlawful reentry since the beginning of this year. The majority of people apprehended at the border are not referred for criminal prosecution, but the fact that this figure is on the rise is still noteworthy. As the National Immigrant Justice Center report notes, these arrests don’t have any significant deterrent effect. Moreover, unlawful entry prosecutions were used as a pretext for the Trump administration’s “zero tolerance” family separation policy in 2018.
Next Destination
New guidelines to ensure parental rights of ICE detainees
ICE published a new directive this week intended to protect the parental rights of immigrant detainees with underage children, CBS News reports. Under the new guidelines, ICE agents are supposed to ask the people they’re arresting whether they have any underage children or children who are incapacitated. If so, agents must determine whether the parents can arrange for someone else—a relative or family friend—to take care of the children. If the children can’t be placed with anyone the parent knows, then ICE must ensure that the children are transferred either to a local law enforcement agency or to a child welfare agency.
Once the parent is in ICE custody, the agency must refrain from detaining them far from where their children live, must give them access to “regular visitation” from their children, and has to allow them to attend family court or child welfare hearings. In the event that a parent is ordered deported, ICE should either allow for them to arrange for someone to care for their children in the U.S. or help get their children to the country the parent will be deported to. Parents who haven’t undergone child custody proceedings and are set to be deported may now have their deportations halted under the new directive, depending on their criminal history and chance of regaining custody.
Like other enforcement directives, this all comes down to discretion. There are plenty of open questions regarding when and how agents will adhere to the new rules, and whether the directive can prevent arrests of parents with minor children altogether. Instead of prohibiting or limiting these arrests, ICE is seemingly trying to mitigate the consequences of them.