17 states sue Biden over ICE policy deprioritizing detention and deportation for most illegal aliens

President Joe Biden has made it a point to reverse or undo much of what was put in place by his predecessor, particularly with regard to the enforcement policies related to border security and immigration statutes.

Yet, while the federal government under Biden has declined to enforce certain laws, a group of 17 states led by Texas and Louisiana has sought to compel such enforcement by way of the federal courts, Just the News reported.

A district court in Texas had already ruled in favor of the states and the case is now pending before the Fifth Circuit Court of Appeals after the U.S. Supreme Court declined an emergency appeal to overturn the lower court’s ruling.

The memo

At issue is a February “Interim Guidance” memo from the acting director of Immigration and Customs Enforcement (ICE) that laid out the Biden administration’s new policies in terms of “civil immigration enforcement and removal policies.”

The memo substantially narrowed the scope of illegal aliens who were a priority for ICE agents to detain or deport, basically limiting it to those who posed a national security threat, were apprehended in the act of crossing the border, or had been convicted for certain serious “aggravated” felonies or were members of street gangs and transnational criminal organizations.

ICE agents would be required to seek preapproval from superiors in order to detain or deport any other illegal aliens that didn’t fit in those prioritized classes, even if they’d been convicted of a wide assortment of other felony crimes that weren’t necessarily “aggravated.”

Multiple states join

As noted, the case brought by Texas and Louisiana challenging the new ICE prioritization policy is currently before the Fifth Circuit Court of Appeals, and those two states were just joined by 15 others, led by Arizona, in an amicus brief filed Aug. 30.

The filing asserts that the “unlawful actions” of the Biden administration has caused “irreparable harm” to the states, largely by way of increased costs and crime due to the administration releasing illegal aliens into those states instead of detaining or deporting them, as is required by law — a problem that is growing worse by the day in conjunction with the surge of illegal aliens crossing the southern border.

The several states called out the Biden administration for its “brazen defiance of legal requirements” and “escalating pattern of contempt for the rule of law,” both in this case as well as in other areas, such as the eviction moratorium extension, for example.

Furthermore, the states pointed to the administration’s failure to consider the impact its new policies have had on the states and had violated requirements within the Administrative Procedures Act that mandate consultation with states, a cost/benefit analysis of a policy’s impact, and an appropriate notice-and-comment period for new rules.

Words matter

The brief also highlighted how certain pertinent statutes included the word “shall” with respect to the detention and deportation of illegal aliens, and how courts have always agreed that “shall” means the same thing as “must” in statutory language — meaning the administration was blatantly violating immigration laws by not detaining or deporting all illegal aliens.

“The border is in crisis. This Administration is increasingly and alarmingly lawless. And the States continue to suffer escalating irreparable harm as the border slips further and further away from the Administration’s control,” the states’ amici brief concluded in asking the court to deny the administration’s request to block the lower court’s ruling.

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