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A Judge Said The Biden Administration Can’t Choose Which Immigrants To Prioritize For Arrest

It’s the latest setback in the courts for the Biden administration’s immigration policy.

Posted on August 19, 2021, at 4:06 p.m. ET

Melina Mara / Washington Post via Getty Images

Officers with the Northern Virginia Gang Task Force partner with ICE to arrest a man in Virginia on Aug. 10, 2017.

A federal judge in Texas on Thursday temporarily blocked Immigration and Customs Enforcement from enforcing priorities constructed by the Biden administration to limit arrests of immigrants in the US to public safety and national security threats, along with those who recently crossed the border without authorization.

Judge Drew Tipton previously blocked the Biden administration from continuing with a 100-day moratorium on most deportations. On Thursday, Tipton, a Trump appointee, struck down the administration’s attempt to limit deportations, which had been challenged by Texas and Louisiana. The judge said the policy violated the Administrative Procedure Act and that the decision to arrest and detain someone cannot be made through agency discretion. He agreed to issue a preliminary injunction stopping the prioritization policy.

Tipton said that “by prioritizing the detention of some aliens over others, the Government has effectively conferred upon itself discretion as to the timing of detention—discretion it does not have. Put differently, the Government has assumed a discretionary power that Congress has explicitly foreclosed. Such a maneuver is impermissible.”

The ruling is the latest legal setback for the Biden administration, which, in addition to having its deportation moratorium blocked, has had courts narrow the Deferred Action for Childhood Arrivals (DACA) program, and, in recent days, instruct it to restart a controversial policy keeping asylum-seekers in Mexico for the duration of their US-based claims.

Unlike the Trump administration, which treated every undocumented immigrant as a priority for arrest and removal, Biden wants to target certain types of undocumented immigrants, primarily those with past convictions for certain crimes. Conservative critics say officers have been hamstrung and effectively told not to do their jobs.

“ICE’s goal isn’t to try to rack up numbers. It is to protect public safety and protect national security,” a senior ICE official who spoke on the condition of anonymity told BuzzFeed News in May.

The priorities issued by the Biden administration outlined that the groups of people ICE officers will focus on include those suspected of being a national security threat, recent border crossers, and those who are considered a public safety threat. The agency said that means people who were “convicted of an aggravated felony or engaged in certain activity as part of a criminal gang or transnational criminal organization and there is reason to believe they currently pose a threat.”

The original Biden administration guidelines lay out how ICE is working with limited resources and other constraints, like ongoing lawsuits, the health of officers and immigrant detainees during the pandemic, and the “responsibility” to ensure that people who are eligible for relief through the immigration courts can obtain it.

ICE officers, under the Biden guidelines, also needed preapproval from their local superiors in deciding whether to arrest or deport people who are not a priority; they will be required to justify the action through a written request. The memo also blocks officers from making so-called collateral arrests if the person is not a priority listed by the administration.

The judge on Thursday also required the government to report back by Sept. 3 on changes to immigration enforcement in light of his ruling.

A BuzzFeed News investigation, in partnership with the International Consortium of Investigative Journalists, based on thousands of documents the government didn't want you to see.