Supreme Court to hear challenge to Biden rules narrowing ICE immigration arrests

The Supreme Court on Tuesday is hearing oral arguments in a case that could have major implications on the power of the executive branch to issue rules governing the enforcement of U.S. immigration laws, as well as the ability of states and organizations to challenge those directives.

At the center of the court case, known as U.S. v. Texas, is a directive issued by Homeland Security Secretary Alejandro Mayorkas in September 2021 that instructed Immigration and Customs Enforcement (ICE) agents to prioritize the arrest of migrants who recently entered the U.S. illegally as well as immigrants deemed to pose a threat to national security or public safety, while effectively exempting other unauthorized immigrants without serious criminal records from enforcement.   

The Biden administration argued the directive allowed ICE to concentrate its finite resources — and 6,000 deportation agents — on efforts to arrest and deport unauthorized immigrants deemed to be law enforcement priorities. The administration said the government does not have the resources nor personnel to arrest and deport the millions of immigrants estimated to be living in the U.S. without legal permission. 

Republican officials in Texas and Louisiana filed a lawsuit against Mayorkas’ memo, arguing it prevented ICE agents from fully enforcing U.S. immigration laws. In June, a federal judge in Texas agreed with the state officials, declaring the Biden administration rules unlawful and blocking ICE agents from enforcing them.

The Biden administration then asked the Supreme Court to intervene. In July, the high court declined to lift the block on Mayorkas’ memo, but agreed to hear the merits of the case.

Following Tuesday’s oral arguments, the Supreme Court will be tasked with deciding three questions: whether Texas and Louisiana had legal standing to sue the Biden administration, whether Mayorkas’ memo is lawful and whether federal courts can set aside policies governing immigration enforcement.

While Customs and Border Protection (CBP) is charged with intercepting unauthorized migrants and illicit drugs along U.S. borders, ICE is responsible for arresting, detaining and deporting immigrants within the U.S. who have committed immigration violations.

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ICE agents prepare to board detainees onto a flight at McCormick Air Center on Feb. 18, 2020, in Yakima, Washington.

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For decades, including before ICE’s creation in 2003, U.S. deportation agents have been instructed to exercise the long-standing law enforcement authority known as “prosecutorial discretion” to determine whether filing a charge or making an arrest is appropriate and advances the interest of justice.

Amid progressive criticism of large-scale deportations, the Obama administration issued several memos directing ICE agents to focus on arresting certain classes of deportable immigrants, including recent border-crossers and those found to threaten public safety or national security. It also discontinued mass ICE arrests at work sites, which had garnered outcry among advocates during the George W. Bush administration.  

The Trump administration rescinded the Obama memos, dramatically expanding the number of unauthorized immigrants ICE agents could arrest. Soon after President Biden took office, his administration revoked the Trump directives and issued a memo that again instructed ICE to focus on arresting immigrants deemed to pose threats to national security, public safety or border security. 

In his September 2021 memo, Mayorkas included the same three priority groups for arrest, but eliminated a categorical definition for the public safety category. Instead, he instructed agents to weigh “aggravating factors,” such as the gravity of crimes and previous convictions, as well as “mitigating factors” like an immigrant’s age, the time they have lived in the U.S. and military service when deciding whether to make an arrest.

Mayorkas’ directive is part of a Biden administration effort to overhaul ICE. The administration has also instructed the agency to discontinue mass work-site arrests and the long-term detention of families with minor children, and to refrain from arresting pregnant women, victims of serious crimes and military veterans.

Together with operational limits caused by the COVID-19 pandemic, the Biden administration rules have led to a sharp decrease in ICE arrests and deportations in the U.S. interior. ICE carried out 59,011 deportations in fiscal year 2021, the lowest tally on record. In fiscal year 2022, which ended on Sept. 30, the number of ICE deportations increased to 69,019, according to government data.

Republican lawmakers have strongly criticized the historically low number of deportations, accusing the Biden administration of not fully enforcing U.S. immigration laws amid record levels of migrant apprehensions along the U.S.-Mexico border.

During the pandemic, U.S. border officials have relied on a public health authority known as Title 42 to swiftly turn back a significant number of the migrants they encounter. Because Title 42 is a public health authority, expulsions under the policy are not counted as formal deportations.

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