Federal Judge Stays Biden’s Dangerous 100-Day Memo
Government Relations Staff Member | FAIR Take | January 2021
A federal judge in Texas issued a temporary restraining order (TRO), this week, provisionally stopping a dangerous Department of Homeland Security memorandum issued on January 20, 2021 that directed Immigration and Customs Enforcement (ICE) officers to halt deportations for almost all aliens with removal orders from the country for 100 days. Acting DHS Secretary David Pekoske signed the memorandum on inauguration day, but it appears to have been ghost written by Esther Olavarria, an anti-immigration enforcement advocate who was recently appointed to the Biden Administration.
The memorandum included very few exceptions and defended that the pause would allow for sufficient staffing at the southwest border, help DHS comply with pandemic protocols, and to ensure that its resources were being directed toward the DHS’s highest enforcement priorities. While the policy memorandum allows ICE to remove aliens involved with terrorism or aliens who agreed to removal, it makes no exception for serious criminals, including rapists, murderers, or aggravated felons, so long as an alien entered the United States before November 1, 2020.
District Court Judge Drew B. Tipton of the U.S. District Court for the Southern District of Texas issued the court order after the State of Texas filed a legal challenge against the policy. In its complaint, the Texas asserted that the policy violates section 241(a)(1)(A) of the Immigration and Nationality Act, was an unlawfully arbitrary and capricious decision, and violates government’s contractual obligations with the state. DHS entered into enforcement agreements last year with the State of Texas and a handful of other states and localities which requires the department “to provide notice of immigration policy changes and allow the jurisdictions six months to review and submit comments before the agency moves forward with any of the proposed changes.”
The court granted Texas’ request for a TRO because it determined that the state was likely to prevail on its arguments, but will still need to decide the case on its merits. If the court invalidates the Biden memorandum, the administration may appeal to the United States Court of Appeals for the Fifth Circuit for further consideration.