‘Pause’ on deporting some still blocked
A federal judge in a late-night ruling Tuesday extended his nationwide block on the Biden administration’s order halting certain deportations for 100 days, a major victory for Texas Attorney General Ken Paxton, who sued over the policy.
In a 105-page ruling, U.S. District Judge Drew Tipton granted a preliminary injunction that blocks the Department of Homeland Security policy, which was issued on Biden’s first day in office. It was part of a broader strategy meant to give the agency time to recalibrate and focus on the “highest enforcement priorities” of securing the southwest border and national security, administration officials have said.
As long as the decision stands, it leaves the Biden administration with no choice but to continue to deport individuals and families prosecuted under Trump administration rules that critics have called xenophobic and overly punitive.
The Trump administration broadened the agency’s deportation targets to include immigrants without serious criminal records, while the new administration is poised to narrow them. The 100day pause did not apply to people considered national security
threats or those who crossed the border illegally after Nov. 1.
Tipton’s ruling extends a previous temporary restraining order he granted — first for 14 days, then extended for two more weeks. The judge has faulted Homeland Security for failing to explain why a pause in deportations was necessary as the department reconsidered its priorities.
Tipton has also found that the policy would unlawfully cause financial harm to Texas by forcing the state to pay to continue to detain people who would otherwise be deported, and to provide public education to unaccompanied migrant children.
“The core failure of DHS lies not in the brevity of the January 20 memorandum or the corresponding administrative record, but instead in its omission of a rational explanation grounded in the facts reviewed and the factors considered,” Tipton wrote. “This failure is fatal, as this defect essentially makes DHS’s determination to institute a 100-day pause on deportations an arbitrary and capricious choice.”
Department of Justice attorneys are likely to appeal the decision, but face an uphill battle as the case heads toward conservative-leaning court after conservative-leaning court. Tipton was a Trump appointee, and an appeal would be heard by the 5th U.S. Circuit Court of Appeals, one of the most conservative in the nation, then the U.S. Supreme Court.
For Paxton, who has faced public scrutiny since the revelation that he took a business trip to Utah while Texas endured a major disaster last week, the judge’s ruling was welcome news.
“HUGE WIN. The first of many against Biden’s unlawful agenda,” Paxton tweeted Wednesday.
Later, Paxton released a more detailed statement: “A freeze on deportations at this scale would undermine federal law, irreparably harm our great state, and directly endanger our citizens. Law and order must be upheld,” he said. “I will continue to defend Texas against those who unlawfully ignore United States law in favor of their own policy preferences.”
Attorneys for the Department of Justice said they disagreed with the decision and were “considering next steps.” An attorney with American Civil Liberties Union, which represents two Texas groups that intervened in the case, similarly said they were reviewing their options.
“This ruling is legally wrong and will seriously harm families and communities around the country,” ACLU attorney Cody Wofsy said. “Texas’ suit is an attempt to deprive the Biden administration of a meaningful opportunity to review and assess immigration enforcement after years of living under lawless Trump policies.”
Tipton said in his order that he understood the agency’s desire to reset priorities as well as address operational challenges posed by COVID-19; however, he disagreed that a 100-day halt on certain deportations was the way to do that.
“Why is a 100-day pause needed to alleviate the problems COVID-19 poses? What basis in the record is there that anything will be different in 100 days on this front?” he asked. “Why does DHS need a 100-day pause on removals to ‘fairly and efficiently’ process immigration and asylum applications at the southwest border? Why is pausing removals essential to redirecting immigration resources?”
Tipton’s order prevents mass stays of deportation orders; however, DHS still retains the ability to make case-by-case decisions.
Geoffrey Hoffman, director of the University of Houston Law Center’s Immigration Clinic, said Biden administration lawyers still have a good chance of having the decision overturned by higher courts, despite their conservative majorities.
“First, the Supreme Court and other federal courts have expressed doubts recently about the legitimacy of nationwide injunctions,” Hoffman said. “Second, there is the substantive problem with the decision impinging on the wide discretion given to presidents in the context of immigration enforcement, which traditionally has been within the almost-exclusive jurisdiction of the federal government.”
Raed Gonzalez, a Houston immigration attorney, said the suit will eventually be moot once the administration sets a more permanent policy beyond these 100 days, which will be up in May. In the meantime, however, he said it will mean more “torn families” and immigrants being forced to face danger in their home countries.
“The Biden administration did not intend to stop all deportations, but some that were not on their priorities,” Gonzalez said. “I trust this will be able to be achieved once the priorities from DHS are formally followed, but in the meantime this is just another partisan lawsuit clearly following Paxton’s xenophobic policies of the prior administration.”