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A Judge Has Blocked Biden's 100-Day Pause On Deportations

The judge's order represents an initial setback for the Biden administration, which has vowed to reform agencies like ICE.

Posted on January 26, 2021, at 3:46 p.m. ET

David J. Phillip / AP

Immigrants are deported by ICE on a flight to El Salvador in 2018.

A federal judge in Texas temporarily blocked the Biden administration from moving forward with a 100-day pause on many deportations across the US, saying Tuesday that it was not adequately reasoned or explained to the public.

The temporary restraining order represents an initial setback for the Biden administration, which has vowed to reform agencies like Immigration and Customs Enforcement (ICE) by restricting who is arrested and deported.

“This is a frustrating loss for an administration that was trying to set a different tone than the chaos and rapid changes of the prior four years,” said Sarah Pierce, an analyst at the Migration Policy Institute. "The order makes it clear that the moratorium may face significant legal hurdles."

Judge Drew Tipton, who was appointed by former president Donald Trump, ordered the Biden administration to immediately stop enforcing its moratorium on many deportations, which had gone into effect on Friday before Texas sued. The temporary restraining order is in effect for 14 days as the case proceeds.

On Jan. 20, the Biden administration issued a pause on deportations for many undocumented immigrants who have final orders of removal. The memo states that the 100-day pause applies to all noncitizens with final deportation orders except those who have engaged in a suspected act of terrorism, people not in the US before Nov. 1, 2020, or those who have voluntarily agreed to waive any right to remain in the US.

But Tipton said the memo issued by David Pekoske, acting secretary of the Department of Homeland Security, appeared likely to violate the Administrative Procedures Act and that it was not adequately reasoned or explained.

“Here, the January 20 Memorandum not only fails to consider potential policies more limited in scope and time, but it also fails to provide any concrete, reasonable justification for a 100-day pause on deportations,” he wrote, while adding that Texas had shown evidence it would suffer if Biden’s moratorium was not blocked.

Tipton said Texas had demonstrated “that it pays millions of dollars annually to provide social services and uncompensated healthcare expenses and other state-provided benefits to illegal aliens such as the Emergency Medicaid program, the Family Violence Program, and the Texas Children’s Health Insurance Program.”

The state claimed that those costs would rise if the moratorium continued.

But Pratheepan Gulasekaram, an immigration law professor at Santa Clara University Law School, said the decision appeared to be vulnerable to an appeal.

“Federal administrations can and should be able to set their own enforcement policy as long as it is not forbidden by federal law. This allows a state to stop the federal government from reassigning resources and personnel and deciding the optimal level of enforcement,” he said. “This is not the way our federalism in the constitution is structured. States don’t have veto ability.”

Texas Attorney General Ken Paxton celebrated the judge’s decision on Twitter.

“Texas is the FIRST state in the nation to bring a lawsuit against the Biden Admin. AND WE WON. Within 6 days of Biden’s inauguration, Texas has HALTED his illegal deportation freeze. *This* was a seditious left-wing insurrection. And my team and I stopped it,” he tweeted.

Kate Huddleston, an attorney for the ACLU of Texas, slammed the lawsuit on Tuesday, saying Paxton "is attempting to force the Biden administration to follow Trump's xenophobic policies."

"The administration’s pause on deportations is not only lawful but necessary to ensure that families are not separated and people are not returned to danger needlessly while the new administration reviews past actions," Huddleston added.

Tipton did not rule on the state’s claim that the Department of Homeland Security violated the terms of an unusual agreement with the Trump administration that guaranteed Texas a chance to weigh in on immigration policies.

The state of Texas previously led the charge in federal court to block the Deferred Action for Childhood Arrivals program, which shields undocumented immigrants who were brought to the country at a young age from deportation. That lawsuit is still pending in federal court.

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.

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