Biden’s Plan for a Deportation Moratorium Hits a Texas Roadblock
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On day one, U.S. President Joe Biden rolled back a handful of Trump-era measures targeting undocumented immigrants. But less than a week later, a lawsuit brought by Texas Attorney General Ken Paxton has temporarily hamstrung a key piece of the new administration’s immigration agenda: its 100-day moratorium on deportations.
On Tuesday, Drew Tipton, a judge appointed by former president Donald Trump, granted a request by Texas to halt Biden’s moratorium for at least 14 days, eliciting cheers from Paxton and strong rebuke from immigration and civil rights advocates.
“The voters rejected the Trump administration’s disastrous immigration policies, but Texas is now seeking to keep the Biden administration from turning the page,” said Cody Wofsy, staff attorney with the American Civil Liberties Union’s Immigrants’ Rights Project. The ACLU had submitted an amicus brief in support of the Biden administration in the lawsuit. “This initial, tentative, and hasty decision is incorrect, and we are confident it will be set aside as the case proceeds.”
The lawsuit is an early indicator that a tug-of-war on immigration issues will continue under Biden — and remain an area where federal and local governments with contrasting political leanings often come to blows. These legal fights have taken different forms, with winners and losers on each side. States and local governmentsalmost always won in lawsuits over so-called sanctuary cities on the principle of federalism, arguing that the federal government could not force them into helping with immigration enforcement; the federal government has often come out on top when challenged over federal immigration moves, like version three of Trump’s travel ban against majority-Muslim countries.
“This is still early in the term, but I think we see a roadmap for the next four years — red state attorneys general are going play an active role in challenging Biden administration actions,” much like blue states challenged Trump’s policies, says Rick Su, professor of law at the University of North Carolina School of Law.
Biden’s immigration actions
Biden’s executive orders canceled Trump-era policies that had facilitated further local-federal collaboration on enforcement and made everyone in the U.S. without papers fair game for deportation. The second significant move Biden’s administration made that day was one that advocates had been pushing for: The acting secretary for the Department of Homeland Security issued a memo asking for a 100-day moratorium on certain deportations starting no later than Jan. 22. This was meant to be a pause that would allow authorities to review enforcement policies, according to the memo. It would also not stop Immigration and Customs Enforcement from arresting and detaining these people — the agency just wouldn’t remove them.
Based on Biden’s orders, the current head of Homeland Security issued interim enforcement priorities that appeared similar to, but narrower than, what was implemented under President Barack Obama’s second term: At least on paper, ICE would now only go after people the agency considered significant public safety risks. The proverbial “shackles” on ICE that had come off during the Trump administration were being put back on.
The new directions also noted exceptions to the 100-day moratorium: It would not apply to people who came to the country after Nov. 1, 2020, those deemed dangers to U.S. national security, those who voluntarily agreed to be deported or those whose removal was deemed mandatory by ICE officials.
Some advocates hailed these moves as bold steps in the right direction, but others expressed concern about the categories of immigrants left out. The moratorium, for example, would not apply to people who have been waiting for months in Mexico to re-enter the U.S. and plead their cases in immigration courts. Those caught in the clutches of a discriminatory criminal justice system would also not be covered, they noted.
“To further punish our neighbors who have already suffered in a criminal system based in racism a second time simply does not reflect our values,” read a press statement released by Immigrant Justice Network, a consortium of immigrants’ rights groups.
During the few days the moratorium was in effect, advocates also reported that some clients were still being staged for deportation, raising concerns that some ICE officers were not complying with the new priorities set at the top. A spokesperson for ICE declined to answer questions regarding this practice.
The states strike back
On Jan. 22, the Friday the moratorium went into effect, Texas sued to get it blocked. The lawsuit cited agreements the Trump administration had signed with conservative states in its final week that required the federal government to give six months notice and consult state governments before taking any significant immigration actions. Texas also argued that it would cost the state “millions” in health care and other services for noncitizens should the moratorium go into effect.
On Tuesday, several immigrant organizers from Texas denounced the lawsuit in a press call.
Damaris Gonzalez, an organizer with the Texas Organizing Project in Houston, mentioned the case of Angelica Medina, an undocumented woman with a condition that makes her vulnerable to dangerous blood clots. Medina was taken into ICE custody after a traffic stop and issued a deportation order last week.
“She made the tough decision to migrate to Houston and leave her family behind with the hope to find a better job to save money to pay for an advanced surgery that she desperately needs,” Gonzalez said. “With this moratorium, Angelica had an opportunity to fight her case and be able to find medical care she needs to save her life. But Ken Paxton viciously wants to take that away from her.”
Later in the afternoon, Judge Tipton issued his order granting Texas’s request to halt the moratorium. In it, he wrote that he had not based it on the Trump administration’s agreements with the states, but on the conclusion that the Biden administration failed to provide “any concrete, reasonable justification” for the moratorium as required by federal procedural law. Tipton also reasoned that Texas sufficiently demonstrated that it would likely suffer irreparable harm and agreed with Texas’s argument that the moratorium contravened a statutory mandate to remove people with final deportation orders within 90 days.
Experts were abuzz with skepticism on this legal reasoning, with many pointing out that deportations are at the discretion of the executive branch of the federal government.
Law professor Su sees the issues the judge brought up as ones that have easy fixes — a second memo addressing the reasoning behind the moratorium in more detail could conceivably render Tuesday’s decision moot, he says. Where the lawsuit did succeed is in stopping a moratorium — for now.
Politically, “the goal is just to pause and push back against changes in immigration policy,” Su says. “The fact is that a judge issued a temporary restraining order, and may later issue a preliminary injunction, all before we actually decide the case.”
Allen Orr, president-elect at the American Immigration Lawyers Association, notes that the court order applies only to the moratorium, while Biden’s broader directives — a review of all enforcement policies and the new deportation priorities — are still in place. If properly implemented, these could have a similar practical effect to a deportation moratorium. BuzzFeed News reported this week on guidance sent to field officers that would require them to seek permission before arresting anyone outside of the newly set priorities. One question is: Will rank-and-file ICE officers actually follow these new policies across the board?
“There are some ICE officials who agreed with the Trump policies, who were saying they weren’t going to enforce that new memorandum, who are still pressing forward with the deportation,” he said, “and the judge just sort of gave them a legal document to point to and say, ‘I’m an officer in Texas, I want to deport you.’”
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