“For these reasons, we do not see a strong justification for concluding that the (Illegal Immigration Reform and Immigrant Responsibility Act of 1996) detention statutes override the deep-rooted tradition of enforcement discretion when it comes to decisions that occur before detention, such as who should be subject to arrest, detainers, and removal proceedings,” the ruling, written by Judge Gregg Costa, reads.
“That means the United States has shown a likelihood of prevailing on appeal to the extent the preliminary injunction prevents officials from relying on the memos’ enforcement priorities for nondetention decisions,” Costa added.
The panel was made up of two Obama appointees and a George W. Bush appointee.
Last month, Judge Drew Tipton issued a preliminary injunction blocking those enforcement priorities. He ordered the administration to file monthly reports on immigrants who had been released from custody and were not immediately detained by ICE.
An administrative hold had been placed on Tipton’s order as it was reviewed by the 5th Circuit. With the 5th Circuit’s latest move, Tipton’s order will be largely paused while the case plays out on the merits — unless the red states successfully seek an intervention from the full 5th Circuit or the US Supreme Court.
Earlier this month, the 5th Circuit heard arguments in the case. The Justice Department argued that there aren’t sufficient resources to detain the millions of undocumented immigrants in the US, in building the case for a priority system, and that deviating from that would require pulling ICE agents from the US southern border, where they’re assisting authorities.
Texas maintained that the administration’s enforcement memo setting up a priority system was arbitrary and capricious.
Wednesday’s ruling nodded to the strain on resources, reading: “Moreover, eliminating DHS’s ability to prioritize removals poses a number of practical problems given its limited resources.”
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