Thu, 25 Feb 2021

WASHINGTON - The Biden administration's push to undo former President Donald Trump's restrictive and enforcement-focused immigration policies hit its first speed bump this week as a federal judge temporarily blocked a 100-day deportation moratorium.

U.S. District Judge Drew Tipton issued a temporary restraining order Tuesday after the Texas governor and attorney general challenged a U.S. Department of Homeland Security (DHS) memo directing immigration agencies to halt most deportations of undocumented immigrants.

The court said the Biden administration had failed "to provide any concrete, reasonable justification for a 100-day pause on deportations."

Tipton, a Republican appointed by Trump, paused the policy for at least 14 days while he considered the lawsuit for a preliminary injunction.

Why did Texas state officials sue?

The 100-day moratorium, which went into effect January 22, was signed by Acting Homeland Security Secretary David Pekoske and applied to most individuals who entered the United States without authorization before November 2020.

President Joe Biden directed the DHS to focus on public safety threats, national security and anyone apprehended while illegally entering the U.S. after November 1.

Texas Attorney General Ken Paxton argued the memo violated both federal law and an agreement Texas signed with the Trump administration days before Biden's inauguration.

The agreement required DHS to provide notice about any immigration changes with Texas and other border states and jurisdictions before making any changes that could "reduce, redirect, reprioritize, relax, or in any way modify immigration enforcement."

Tipton's order, however, did not address the agreement, and the Biden administration does not recognize it as legally binding, arguing a previous administration cannot tie the hands of a current one on matters of federal policy.

As a general matter, the federal government has broad discretion when deciding whether or not to deport a person. But Texas argued the deportation pause was "arbitrary and capricious" and did not follow established procedure.

"The Court agrees with Texas," Tipton said. "Federal administrative agencies are required to engage in 'reasoned decision-making.'"

FILE - Activists rally at the U.S. Supreme Court as justices hear arguments in a challenge to then-President Barack Obama's executive action to defer deportation of certain undocumented children and parents, in Washington, April 18, 2016. FILE - Activists rally at the U.S. Supreme Court as justices hear arguments in a challenge to then-President Barack Obama's executive action to defer deportation of certain undocumented children and parents, in Washington, April 18, 2016.

Who was Biden's order expected to cover?

According to a spokesperson from the U.S. Immigration and Customs Enforcement (ICE), the pause on deportations applied to those present in the United States with a final order of removal but contained exceptions.

The pause did not apply to people suspected of terrorism or espionage, who had been incarcerated within federal, state, and local prisons, or who had been convicted of an "aggravated felony."

"The pause on removals does not apply to individuals who entered the United States on or after November 1, 2020," the ICE spokesperson said.

The DHS memo also did not "prohibit" the apprehension or detention of people unlawfully present in the United States.

Tipton directed ICE to return to its previous operational settings, effectively directing the agency to resume deportations. Under the Trump administration, anyone in the U.S. illegally was deemed a priority for deportation.

Backing the court order

U.S. Congressman Chip Roy, a Texas Republican, described the pause in deportations as "an illegal executive overreach that usurps the power of Congress to rewrite federal law. ... I'm glad to see that the Texas Office of the Attorney General pushed back against this lawless approach to immigration policy."

Paxton called Tipton's decision a victory. Texas's challenge to the DHS memo continues the state's tradition of challenging policies and initiatives of Democratic administrations. Texas frequently sued the federal government during the Obama administration.

Paxton, a Trump supporter, is currently being investigated by the FBI over allegations of bribery and abuse of office. The state attorney general supported a failed lawsuit contesting Biden's victory over Trump in the 2020 election.

In a tweet, Paxton called Biden's deportation pause "a seditious left-wing insurrection," employing words that have been used to describe the January 6 assault on the U.S. Capitol by Trump supporters.

Backing a pause on deportations

The American Civil Liberties Union (ACLU) filed an amicus brief supporting Biden's moratorium, asked the court to deny Texas's request and argued that the federal government is legally allowed to pause deportations.

"This lawsuit should not be allowed to proceed. Paxton sought to overturn the results of the 2020 presidential election by attempting to baselessly suppress votes; now he is attempting to force the Biden administration to follow Trump's xenophobic policies. The administration's pause on deportations is not only lawful but necessary to ensure that families are not separated, and people are not returned to danger needlessly while the new administration reviews past actions," Kate Huddleston, attorney for the ACLU of Texas, said in a statement.

Gilberto Hinojosa, chair of the Texas Democratic Party, said Paxton and Texas Gov. Greg Abbott "think they somehow have a say on immigration matters, when we all know this is a federal process."

What comes next?

Tipton's order remains in effect for 14 days and may be extended another 14 days. To keep the policy blocked after that, Texas would need to seek an injunction.

The order also does not change Biden's broader immigration directives, including a recalibration of enforcement priorities due to go into effect February 1.

VOA asked DHS for comment, but agency officials directed questions to the White House. The White House did not immediately comment on the matter.

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