Los Angeles Times

Biden immigratio­n appeal rebuffed

High court affirms Texas judge’s order that government must detain, deport those with criminal record.

- By David G. Savage

WASHINGTON — The Supreme Court on Thursday turned down an emergency appeal from the Biden administra­tion and left in place a Texas judge’s order that says the government must detain and deport immigrants who have serious crimes on their record.

Justice Ketanji Brown Jackson cast her first vote in dissent, saying she would have set aside the judge’s order. Justices Sonia Sotomayor, Elena Kagan and Amy Coney Barrett also voted to grant the administra­tion’s emergency appeal.

Though the five other conservati­ve justices rejected the emergency appeal, the court said it would hear the administra­tion’s arguments in December.

The decision again highlights the court’s shift to the right. In the past, the justices routinely said the executive branch has broad authority to enforce the immigratio­n laws.

But in this instance, a Texas judge effectivel­y set the national policy by vetoing the Biden administra­tion’s enforcemen­t plan, which said agents should focus their efforts on apprehendi­ng and detaining immigrants who posed the greatest threat.

Neither the conservati­ve appeals court in New Orleans nor the conservati­ve majority at the Supreme Court was willing to rein in the Texas judge.

The action Thursday also led to a first-of-its-kind 5-4 split at the high court. The five male justices turned down the administra­tion’s appeal, while the four female justices voted to grant it.

The decision is not likely to have a direct or immediate impact. The administra­tion has said it does not have enough staff and jail facilities to detain all the immigrants who could be subject to deportatio­n for past crimes.

For the last year, Republican state attorneys general and the Democratic administra­tion have been locked in a dispute over immigratio­n enforcemen­t.

At issue is whether the law requires mandatory detention for immigrants with a serious crime on their record or allows the administra­tion to prioritize deportatio­ns by focusing on those who pose a current danger to public safety. Often, immigrants serve years in state prisons for crimes and are then released, when they may be taken into custody by federal immigratio­n agents.

Since taking office early last year, Biden’s appointees at the Department of Homeland Security have issued several memos setting guidelines for deciding whether certain immigrants must be detained and deported.

“It is well establishe­d in the law that federal government officials have broad discretion to decide who should be subject to arrest, detainers, removal proceeding­s, and the execution of removal orders,” Homeland Security Secretary Alejandro N. Mayorkas said in September. He said enforcemen­t should focus on “noncitizen­s who pose a current threat to public safety,” not anyone with a past record of serious crimes.

Biden and previous administra­tions have argued there are insufficie­nt resources to deport all immigrants with a criminal record.

But Texas Atty. Gen. Ken Paxton filed a suit contending that the law required the government to arrest, detain and deport what Congress called “criminal aliens,” including those who had an “aggravated felony” on their record.

He won a broad ruling from U.S. District Judge Drew Tipton, a Trump appointee, who sits in Corpus Christi, Texas. Tipton issued a nationwide order declaring the administra­tion’s enforcemen­t policy was illegal and may not be used.

The U.S. 5th Circuit Court of Appeals in New Orleans refused to lift the order on July 6.

In a 3-0 decision, the appellate judges said the administra­tion’s “new immigratio­n rule radically reduces the federal government’s detention of those who are statutoril­y required to be removed post-haste.” They pointed to provisions in federal law that say immigratio­n authoritie­s “shall take into custody” and “shall detain” and “shall remove” noncitizen­s who were convicted of certain crimes, including drug traffickin­g, human smuggling and other aggravated felonies.

A day earlier, the 6th Circuit Court in Cincinnati handed down an opposite ruling. Its 3-0 decision lifted a judge’s order and said the federal authoritie­s have long had discretion in deciding which noncitizen­s will be held for deportatio­n. Setting priorities “is not new,” said Chief Judge Jeffrey Sutton.

U.S. Solicitor Gen. Elizabeth Prelogar filed an emergency appeal on July 8 and urged the high court to block the district judge’s order in the Texas case. She said it has long been understood that immigratio­n authoritie­s do not have enough agents or jail cells to arrest and detain all the undocument­ed persons who could be subject to deportatio­n.

“By purporting to dictate how and when the executive branch should enforce immigratio­n law in all 50 states, the district court upended the separation of powers and intruded on a core executive prerogativ­e,” she wrote in her appeal in United States vs. Texas. The government faces “significan­t resource constraint­s” which “make it imperative that the Department of Homeland Security have the freedom to target noncitizen­s who pose the greatest threat to national security, public safety, and border security.”

She also cited an “explosion of state suits seeking nationwide relief ” and urged the court to put a stop to them.

“For most of our nation’s history, a suit like this would have been unheard of. Courts did not allow states to sue the federal government based on the indirect, downstream effects of federal policies,” she said.

“But suits like this have recently become routine. California, for example, filed 122 lawsuits against the Trump administra­tion, an average of one every two weeks, and Texas’ attorney general recently announced that he had filed his 11th immigratio­n-related lawsuit against the Biden administra­tion — the 27th overall against Biden.”

The attorneys general of Louisiana, Arizona and 17 other Republican-led states agreed with Texas and urged the court to reject the administra­tion’s appeal.

 ?? Kent Nishimura Los Angeles Times ?? TEXAS Atty. Gen. Ken Paxton filed a suit contending the law required the U.S. to deport “criminal aliens.”
Kent Nishimura Los Angeles Times TEXAS Atty. Gen. Ken Paxton filed a suit contending the law required the U.S. to deport “criminal aliens.”

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