The Fifth Circuit Court of Appeals ruled on September 15
that the Biden administration’s initiatives to reduce Immigration and Customs
Enforcement’s (ICE) effectiveness are legal, overturning a lower judge’s ruling
that prevented the directives from going into effect.

In Texas v. United States (21-401618), the states of Texas and Louisiana sued the federal government over two ICE initiatives that altered which aliens were a priority for detention and removal. The Department of Homeland Security (DHS) issued a memorandum on the first day of the Biden administration’s tenure explaining that DHS did not have the capacity to remove every illegal alien present in the United States.

DHS issued a second – and more important – “Interim Guidance: Civil Enforcement and Removal Priorities” memorandum on February 18, 2021. This document outlined which aliens ICE agents should prioritize for arrest, detention, and removal. The document ordered ICE agents to focus only on extreme national security risks, aggressive felons, and anyone illegally entering the United States after November 1, 2020. Under this order, ICE could not detain any illegal aliens who were present in the country before November 1.

Texas and Louisiana argued that the effects of this order forced them to use state resources to arrest criminal aliens because they could not rely on the federal government to do its job. In August, Judge Drew Tipton issued a nationwide injunction blocking the Biden administration’s ICE guidance, citing sections 1231 and 1226 of the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 (IIRIRA).

The Fifth Circuit overruled Judge Tipton’s order and questioned his reasoning. In the Fifth Circuit’s ruling, the three-judge panel wrote that “we believe these IIRIRA provisions do not eliminate immigration officials’ ‘broad discretion’ to decide who should face enforcement action in the first place. They address a separate question: the custodial status of individuals who are facing removal proceedings or who have been removed.” The court’s three-judge panel comprised of Leslie Southwick, James Graves Jr., and Gregg Costa. Judge Southwick is a George W. Bush appointee, whereas Judges Graves Jr. and Costa are Barack Obama appointees.

Following this ruling, ICE agents now must abide by the directive’s guidance. This means that they will have to all but ignore any illegal alien they encounter so long as they are not a terrorist, a convicted violent felon, or a recent arrival. The ICE guidance handcuffs agents and prevents them from doing their Congressionally-mandated job. The Biden administration’s deleterious effect on ICE’s effectiveness is already clear. ICE has averaged during the Biden administration only one arrest every two months, even in the midst of an unprecedented border crisis.  

This is yet another sad example of the Biden administration’s abandonment of immigration enforcement. Rather than handcuffing ICE, the Biden administration should use agency to its full potential (and fully fund it too) and allow its agents and employees to do their jobs without political interference from the White House and its political appointees.

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