- The Washington Times
Tuesday, March 22, 2022

Homeland Security Secretary Alejandro Mayorkas broke the law when he wrote rules limiting which illegal immigrants can be detained or deported, a federal judge ruled Tuesday, slapping an injunction on ICE that will limit its ability to pick and choose whom to target.

Judge Michael J. Newman’s decision is a serious blow to the Biden administration. From its first days in office, the administration has tried to narrow the pool of illegal immigrants in danger of deportation by U.S. Immigration and Customs Enforcement.


Judge Newman said Congress was clear in setting out classes of illegal immigrants who it thought should be mandatory targets and Mr. Mayorkas can’t unilaterally change those.

“DHS contends that seemingly mandatory statutes must be read flexibly to permit efficient law enforcement. At bottom, that is what this dispute is about: can the executive displace clear congressional command in the name of resource allocation and enforcement goals? Here, the answer is no,” wrote the judge, a Trump appointee to a federal court in Ohio.

His temporary injunction blocks ICE from delaying deportation or refusing to detain targets based on Mr. Mayorkas’ guidance.

The Homeland Security Department didn’t respond to a request for comment.

Mr. Mayorkas cast his rules as “priorities” that he ordered ICE to follow. He said the money Congress allocated to him for immigration enforcement was limited and he wanted to spend it on the highest-value targets.

He said merely being in the country illegally was no longer a reason to be deported. There must be an aggravating circumstance, such as a serious crime or a recent illegal border crossing, to deserve arrest or deportation.

Even then, he said, ICE officers needed to search for mitigating factors, such as family that depended on an illegal immigrant’s income, in deciding targets.

The problem, said Judge Newman, is that the law lays out specific cases where enforcement is necessary and Mr. Mayorkas’ rules didn’t align with the law.

Arizona, Ohio and Montana sued to stop Mr. Mayorkas’ rules. A separate challenge is pending in Texas.

Arizona Attorney General Mark Brnovich, the lead plaintiff in the case, pronounced the ruling a “victory,” and Stephen Miller, an architect of the Trump administration’s immigration policy and president of America First Legal, which worked with the states on the lawsuit, called the ruling a “colossal win.”

“Today’s decision reaffirms that Joe Biden does not have the authority to abolish ICE by memorandum, to mass release criminal illegal aliens near our homes and loved ones, or to suspend our immigration laws, our borders, our sovereignty, and our nationhood,” Mr. Miller said in a statement.

He pointed to reports in The Washington Times that showed ICE arrests and deportations of convicts have plummeted and releases of serious criminals have risen under the Biden administration.

According to secret data ICE has yet to release, its enforcement and removal operations division recorded 48% fewer arrests of convicted criminals in 2021 than in 2020 and deported 63% fewer criminals.

ICE issued 46% fewer “detainer” requests asking state and local police to hold someone for pickup by deportation officers.

That data undercuts Mr. Mayorkas’ argument that his guidance is pushing ICE to focus on the most important cases.

The Biden administration sought from its first days in office to curtail ICE enforcement, bowing to pressure from immigrant rights advocates who said too many people were being arrested and deported.

On Inauguration Day, then-acting Homeland Security Secretary David Pekoske issued a full deportation halt, but it was blocked by a judge.

In February, acting ICE Director Tae Johnson issued an update, and Mr. Mayorkas followed with what he called “permanent” guidance in late September.

Tuesday’s ruling dealt with that Mayorkas policy.

Judge Newman imposed a nationwide injunction on ICE, ruling that it cannot follow through on key parts of Mr. Mayorkas’ guidance.

What that means in practice remains to be seen.

Biden administration officials have said that given the money Congress makes available to ICE, it’s impossible to arrest, detain and deport all illegal immigrants whom the law considers to be enforcement targets.

The administration says that means there must be priorities and the ones Mr. Mayorkas has set are defendable.

Judge Newman disagreed. He said the administration could return to the rates of arrests and deportations that existed before or issue new guidelines that are less restrictive on officers.

Jon Feere, a chief of staff at ICE in the Trump years, said there is plenty of room to boost ICE enforcement.

“It’s ridiculous for them to be complaining about a lack of resources while not working to expand those resources,” he said. “But even with the resources they have, they obviously could do much, much more. And now, after this ruling, perhaps they have to.”

• Stephen Dinan can be reached at sdinan@washingtontimes.com.


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