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Immigration enforcement policy fight reaches Supreme Court

Lower court rulings are thwarting Department of Homeland Security efforts to focus its limited resources, the Biden administration argues

Trucks and cars cross over the Rio Grande and U.S.-Mexico border on the Bridge of the Americas in El Paso, Texas, in 2021.
Trucks and cars cross over the Rio Grande and U.S.-Mexico border on the Bridge of the Americas in El Paso, Texas, in 2021. (Bill Clark/CQ Roll Call file photo)

The Biden administration asked the Supreme Court on Friday to let immigration agencies implement a policy that sets enforcement priorities, after lower courts blocked it as part of a legal challenge brought by officials from Texas and Louisiana.

The policy, issued by Homeland Security Secretary Alejandro Mayorkas in a September memo, instructs agents to prioritize three categories of immigrants for arrest and detention: recent border crossers, national security threats and those with certain serious criminal convictions who pose a threat to public safety.

But Judge Drew Tipton of the U.S. District Court for the Southern District of Texas, a Donald Trump appointee, stopped the immigration enforcement guidance last month. And a federal appeals court on Wednesday declined to reverse that ruling.

The Justice Department on Friday asked the justices to temporarily lift Tipton’s ruling in full, or “at a minimum,” to limit the ruling’s effect to only within Texas and Louisiana.

The ruling has required the Department of Homeland Security to “halt all implementation” of the internal guidance and “instruct employees to disregard their training,” which will lead to “disparate prioritization across the country and a lack of consistency in enforcement actions,” the DOJ argued in the filing.

“That judgment is thwarting the Secretary’s direction of the Department he leads and disrupting DHS’s efforts to focus its limited resources on the noncitizens who pose the gravest threat to national security, public safety, and the integrity of our Nation’s borders,” the filing states.

Further, Tipton’s ruling “exemplifies a troubling trend” of lower court judges blocking federal policies nationwide following lawsuits by states. According to the court filing, California filed 122 lawsuits against the Trump administration, and now Texas has filed more than two dozen against the Biden administration — including 11 on immigration policies alone.

“Those suits enmesh the Judiciary in policy disputes between States and the federal government that should be — and, until recently, were — resolved through the democratic process,” the government argued. “And they allow single district judges to dictate national policy, nullifying decisions by other courts and forcing agencies to abruptly reverse course while seeking review of novel and contestable holdings.”

The federal government also asked the Supreme Court to consider the request as an appeal and schedule oral argument in the case for the fall.

On Wednesday, a three-judge panel for the U.S. Court of Appeals for the 5th Circuit concluded that the immigration guidance conflicts with federal laws mandating detention for certain groups.

And as a result, DHS “simply lacks the authority to make that choice when the statutes plainly mandate such categorical treatment,” the panel said.

The 5th Circuit’s decision created a split with the U.S. Court of Appeals for the 6th Circuit, which had recently sided with the administration in a similar lawsuit against the immigration enforcement guidance.

The case marks the latest major immigration dispute to hit the high court’s docket. In June, the Supreme Court ruled in favor of the Biden administration to find that it was not required by law to reinstate a Trump-era policy requiring migrants to be returned to Mexico while they await decisions in their asylum cases.

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