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The Biden administration must revamp its deportation policies, a Trump-appointed judge ruled Friday, finding they conflict with immigration statutes by making optional the detention of noncitizens convicted of aggravated felonies and other serious crimes.
“The core of the dispute is whether the executive branch may require its officials to act in a manner that conflicts with a statutory mandate imposed by Congress. It may not,” U.S. District Judge Drew Tipton wrote in the first lines of his ruling.
Tipton struck down a memo from U.S. Department of Homeland Security Secretary Alejandro Mayorkas that took effect in November and established guidelines detailing when U.S. Immigration and Customs Enforcement officers should take undocumented immigrants into custody for deportation.
Here's the actual memo:
And from the judge's opinion:
That brings us to the relevant immigration statutes. This case is not about aliens in general, or even aliens who are in the United States illegally. Sections 1226(c) and 1231(a)(2) of Title 8 of the United States Code state that the Executive Branch “shall” detain aliens convicted of specific types of crimes or who have final orders of removal. The Federal Government acknowledges that some immigration statutes mandate detention. But it disputes that Sections 1226(c) and 1231(a)(2) are among those statutes. In support, the Federal Government offers an implausible construction of federal law that flies in the face of the limitations imposed by Congress. It also invokes discretion and prioritization in an effort to evade meaningful judicial review.
True, the Executive Branch has case-by-case discretion to abandon immigration enforcement as to a particular individual. 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.
It is also true that the Executive Branch may prioritize its resources. But it must do so within the bounds set by Congress. Whatever the outer limits of its authority, the Executive Branch does not have the authority to change the law.
Using the words “discretion” and “prioritization,” the Executive Branch claims the authority to suspend statutory mandates. The law does not sanction this approach. Accepting the Executive Branch’s position would have profound consequences for the separation of powers.