Biden Administration Cannot Ignore Federal Law, Must Remove Illegal Alien Criminals: Court

Biden Administration Cannot Ignore Federal Law, Must Remove Illegal Alien Criminals: Court
Homeland Security Secretary Alejandro Mayorkas in Los Angeles on June 10, 2022. (Patrick T. Fallon/AFP via Getty Images)
Zachary Stieber

President Joe Biden's administration cannot ignore federal law that says authorities must arrest, detain, and remove illegal aliens convicted of certain crimes and/or aliens who are ordered deported, an appeals court has ruled.

Federal law says the attorney general "shall take into custody," "shall detain," and "shall remove" illegal aliens convicted of certain crimes and aliens who are ordered deported. But the Biden administration has attempted to prevent the holding and removal of some illegal immigrants convicted of those crimes.

“The fact an individual is a removable noncitizen therefore should not alone be the basis of an enforcement action against them,” Homeland Security Secretary Alejandro Mayorkas, a Biden appointee, said in a memorandum in September 2021 outlining new guidance that narrowed immigration enforcement priorities.

Mayorkas also said that immigration agents should not "rely on the fact of conviction ... alone" when deciding to take action against an alien.

That has led to a sharp drop in criminal aliens detained by the Department of Homeland Security (DHS), a panel of the U.S. Fifth Circuit Court of Appeals said. The memo and others like it has led to a spike in the rescinding of criminal detainers, or orders to local authorities to detain aliens, court documents show. One hundred and seventy aliens had detainers rescinded in Texas between Jan. 20, 2021, and Feb. 15, 2022, with at least 17 failing to comply with their parole conditions and four committing fresh crimes.

"The data show that the Final Memo 'increases the number of aliens with criminal convictions and aliens with final orders of removal released into the United States,' and Texas has shown by a preponderance of the evidence that the cost of that reality has fallen on it and will continue to do so,'" the panel said in a ruling dated July 6.

DHS is trying "to claim it acts within the bounds of federal law while practically disregarding that law," it added.

The panel upheld an earlier ruling from U.S. District Judge Drew Tipton, a Trump appointee who said the policy had resulted in criminal aliens "roam[ing] free" and ordered the department not to follow the memo.
The Biden administration had appealed, arguing that the lower court order should be overturned because the states lack standing, because they have not suffered any injury, and because any injury that the speculative injury was not traceable to the Mayorkas memo. The appeals court panel disagreed.


Biden "tried to throw out immigration law, saying DHS didn’t have to detain criminal illegals. The court now says he must," Republican Texas Attorney General Ken Paxton, one of the plaintiffs, said in a statement.

“Had the administration won its stay, it would have gone on releasing criminal aliens while its appeal of the district court’s ruling wound through the courts,” added Dale Wilcox, executive director of the Immigration Reform Law Institute, which filed a brief in the case. “We are pleased that didn’t happen, and applaud the Fifth Circuit for denying the administration the extra time it sought to violate the law and endanger Americans.”

The administration is expected to appeal, which could send the case to the full Fifth Circuit or to the Supreme Court, which recently ruled the administration can end the Trump era "Remain in Mexico" policy while explicitly avoiding weighing in on whether the detention requirement outlined in federal law is "subject to principles of law enforcement discretion" and whether the administration's current approach to immigration enforcement violates the provision.

The panel consisted of Judges Edith Jones, a Reagan appointee; Edith Clement, a George W. Bush appointee; and Kurt Engelhardt, a Trump appointee.

Its ruling diverged from an opinion from the U.S. Sixth Circuit Court of Appeals in a similar case brought by the states of Arizona, Montana, and Ohio that in April overturned (pdf) a lower court's nationwide preliminary injunction that blocked the same guidance.

The Fifth Circuit panel said its divergence is explainable by the benefit of bench trial and precedent in other cases brought before the court. "Until there is a contrary ruling from the Supreme Court, we adhere to our precedent and the facts found by the district court," it said.

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