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Federal judge strikes down Biden admin’s narrowing of ICE arrest, deportation priorities

A federal judge on Friday struck down the Biden administration’s restrictions on Immigration and Customs Enforcement (ICE) which dramatically limits which illegal immigrants the agency can arrest and deport — marking the latest legal defeat for the Biden administration on immigration policy.

Texas Judge Drew Tipton, responding to a lawsuit filed by Texas and Louisiana which said the rules violated federal law, shut down the policy but stayed the implementation of the ruling for seven days to give the Biden administration time to appeal.


The administration in September issued a memorandum that made official prior guidance that limited ICE agents to focusing on three groups of illegal immigrants: Recent border crossers, threats to national security and threats to public safety. The agency has also told agents to consider factors like military service.

Homeland Security Secretary Alejandro Mayorkas said in his memo that it meant that just being in the country illegally was not enough to get arrested or deported by ICE — part of a dramatic overhauling of immigration policy by the Biden administration.

“We have fundamentally changed immigration enforcement in the interior,” Mayorkas declared in an interview with CBS News in January. “For the first time ever, our policy explicitly states that a non-citizen’s unlawful presence in the United States will not, by itself, be a basis for the initiation of an enforcement action.

Tipton, in his ruling, said that the government fell short in reconciling the guidance with federal law, which demands the detention in certain situations. He said the government “offers an implausible construction of federal law that flies in the face of the limitations imposed by Congress.”

“True, the Executive Branch has case-by-case discretion to abandon immigration enforcement as to a particular individual, he said. “This case, however, does not involve individualized decisionmaking. Instead, this case is about a rule that binds Department of Homeland Security officials in a generalized, prospective manner—all in contravention of Congress’s detention mandate.” 


Under the policy, arrests and deportations have plummeted. In FY 2021, which included the final months of the Trump administration,  ICE arrested 74,082 noncitizens in FY 2021, and deported 59,011. Of the 74,082 arrests between October 2020 and October 2021, only 47,755 took place after Feb. 18 when the new priorities were implemented. Of removals, just 28,677 of the 59,011 deportations took place after Feb. 18. 

In FY 2020, there were 103,603 arrests and 185,884 removals. In FY 2019 the agency arrested 143,099 illegal immigrants and deported 267,258.

The administration has said that due to limited resources, the policies allow for the government to focus on the most pressing threats to the country. An ICE report released earlier this year said that the agency arrested 12,025 illegal immigrants with aggravated felony convictions, nearly double the 6,815 arrested in FY 2020. Prior reports do not use the term “aggravated felon” and senior ICE officials have conceded that the definition of the term generally refers to more serious felons, but also differs in different jurisdictions.


Tipton said the government’s regulations were not just offering guidance to agents, as the government claimed, but instead “provides a new basis on which aliens may avoid being subject to the enforcement of immigration law.” It is therefore a rule and subject also to the Administrative Procedures Act (APA) and therefore subject to certain conditions, like a notice-and-comment period.

The court ruling marks the latest defeat for the Biden administration on issues of immigration. Tipton himself has previously blocked a proposed 100-day moratorium on deportations, and earlier ICE rules last year.

Similarly, the Biden administration was recently dealt a blow when a federal court in Louisana struck down its attempts to end Title 42 — a public health order put in place at the start of the COVID-19 pandemic which has been used to expel a majority of migrants at the border. The administration last year was also ordered to re-implement the Trump-era Migrant Protection Protocols (MPP), which it was found to have ended unlawfully.

Texas Attorney General Ken Paxton called the ruling a “massive defeat for the Biden administration.”

“He tried to throw out immigration law, saying DHS didn’t have to detain criminal illegals. The court now says he must,” he tweeted. “I will always hold the line with the Dems and the rule of law.”

“Judge Tipton confirmed what we have argued all along: law and order must prevail,” Louisiana Attorney General Jeff Landry said in a statement. “The Biden Administration can no longer allow dangerous and violent criminal aliens to roam free in our communities.”

Tipton’s order delays implementation by seven days to allow for an appeal by the Biden administration. A DHS spokesperson told Fox News Digital that it is “currently assessing the court order and considering next steps.”

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