This Week’s Important Immigration Rulings
FAIR Take | June 2022
Advocates for immigration enforcement saw two big victories within the judicial branch this week, followed by a setback from the U.S. Supreme Court. First, a Texas federal court vacated the Department of Homeland Security (“DHS”)’s policy that imposed narrow enforcement priorities and limited officers’ ability to initiate immigration enforcement. The court found that the policy, issued by DHS Secretary Alejandro Mayorkas through an internal memorandum, both violated substantive immigration law and was arbitrary and capricious.
Despite DHS’s language in the memorandum that disclaimed the policy “does not compel an action to be taken or not taken,” the court determined that many officers nevertheless perceived the policy as “substantially limiting if not eliminating their discretion to make detention decisions,” and that the “ostensibly permissive” policy was “effectively mandatory” to officers tasked with enforcing the law.
In explaining its decision, the court referenced DHS data that shows severe declines in the detention and removal of criminal aliens since its issuance, as well as an increase in rescinded detainer requests for criminal aliens in state or local law enforcement custody. Federal law, however, requires DHS officers to detain and deport aliens convicted of certain serious crimes and offenses.
The Immigration and Nationality Act (“INA”) instructs the government to remove such aliens within a period of 90 days, and clarifies that “under no circumstances during the removal period shall [the government] release an alien who has been found inadmissible… or deportable” under the provisions in the INA covering such criminal conduct. As a result, the district court held that DHS’s policy “displaces” the INA’s “statutory language in favor of current policy consideration,” and was a legislative rule that was issued in violation of federal law.
The U.S. Supreme Court’s decisions in Garland v. Gonzalez, No. 20-322, and companion case Johnson v. Artega-Martinez, No. 190896, on Monday, June 13, provided enforcement advocates their second win this week. In these cases, the Court ruled that aliens who DHS determines are flight risks do not have a right to bond hearings and that federal district courts lack the authority to provide hearings on a class-wide basis. “On its face, the statute says nothing about bond hearings before immigration judges or burdens of proof, nor does it provide any other indication that such procedures are required,” wrote Justice Sonia Sotomayor for the eight-justice majority in Johnson v. Artega-Martinez.
With regard to the final important ruling of the week, the Supreme Court barred a handful of state from intervening in a lawsuit to defend the Trump administration’s “public charge” regulation. The Biden administration plans to finalize its own “public charge” regulation this year, which rescinds nearly all of the reforms made by the 2019 rule and expands the types and quantity of public benefits aliens may receive without invoking the “public charge ground of inadmissibility,” mandated by federal law. This case is Arizona et al. v. City and County of San Francisco, California, et al., No. 20-1775.