Texas judge blocks agents from use of discretion in deportation arrests

A Biden administration policy that prioritized the arrest of immigrants living in the country illegally who are considered a threat to public safety and national security has been suspended as of Saturday, rendering millions of people vulnerable to deportation.

A federal judge in Texas had ruled the prioritization policy illegal June 10, a ruling that took effect late Friday after a federal appeals court failed to issue any decision blocking it. The Department of Homeland Security said it effectively had no discretion under the ruling to set priorities for how its agents enforced the nation’s immigrant removal laws.

“While the department strongly disagrees with the Southern District of Texas’ court decision to vacate the guidelines, DHS will abide by the court’s order as it continues to appeal it,” the department said in a statement.

It said Immigration and Customs Enforcement agents would make enforcement decisions on a case-by-case basis “in a professional and responsible manner, informed by their experience as law enforcement officials and in a way that best protects against the greatest threats to the homeland.”

The court order leaves the government in an unusual situation. Recent administrations have set at least some priorities establishing which immigrants living in the country without legal permission should be targeted for removal, in most cases trying to identify people who have committed crimes or who pose some other threat before moving on to others. The Trump administration significantly broadened the range of immigrants identified for deportation, but even then, there was some guidance to target criminals, legal experts said.

The removal of the guidelines is likely to renew some of the fears that plagued immigrant communities during Donald Trump’s presidency, when nearly anyone without legal residence was subject to arrest, although the Biden administration has pledged to take a measured approach to enforcement even without a prioritization policy.

In a policy memo to immigration agents last year, the Department of Homeland Security secretary, Alejandro Mayorkas, had directed agents not only to prioritize immigrants involved in crimes and security threats but also to take into consideration other factors — such as whether they had lived in the United States for many years, were of advanced age or had U.S.-born children.

This leaves nearly all of the estimated 11 million immigrants living in the country without legal permission theoretically open to arrest and deportation, although exactly who would be targeted and how is unclear.

“The problem with moving away from priorities is, there is no standardization, no rhyme or reason,” said Karen Tumlin, founder of Justice Action Center, an immigrant rights group.