Federal Judge Is Right to Enjoin Biden’s Plan to Halt Deportations

COMMENTARY Immigration

Federal Judge Is Right to Enjoin Biden’s Plan to Halt Deportations

Jan 29th, 2021 4 min read

Commentary By

Lora Ries @lora_ries

Director, Center for Technology Policy

Michael Sutherland

Spring 2021 member of the Young Leaders Program at The Heritage Foundation

A federal judge has enjoined President Joe Biden's memorandum that would have suspended the deportation of illegal immigrants with final orders of removal for 100 days. JIM WATSON / Contributor / Getty Images

Key Takeaways

President Joe Biden has issued a flurry of executive orders and memorandums. And according to one federal judge, not all of them are lawful.

The judge’s principle was clear: The president cannot order law enforcement officers to defy the clear language of the law as written by Congress. 

Being unable to deport illegal aliens with final orders of removal leaves DHS with two choices, neither of which is good. 

In his first few days in office, President Joe Biden has issued a flurry of executive orders and memorandums. And according to one federal judge, not all of them are lawful.

Judge Drew Tipton of the U.S. District Court for the Southern District of Texas has enjoined the Biden administration’s Jan. 20 memorandum that would have suspended the deportation of illegal immigrants with final orders of removal for 100 days.

Tipton granted Texas’ request for a temporary restraining order and ruled that the Biden administration failed to follow proper administrative procedures in issuing its edict.

The judge’s principle was clear: The president cannot order law enforcement officers to defy the clear language of the law as written by Congress. 

The case will now proceed to a trial where the judge, after taking evidence and hearing the arguments of counsel, will decide whether to issue a permanent injunction. The loser, no doubt, will appeal the case.

Suspending deportations subverts our nation’s immigration laws, knowingly makes Immigration and Customs Enforcement’s job much more difficult, and is a negligent waste of current and future resources. 

It would create an enforcement backlog for ICE, just when large immigrant caravans have resumed the journey from Central America to our southern border. Our immigration enforcement capabilities would be overwhelmed by the strain of having to keep track of illegal aliens who would have already been deported while also securing the border against incoming illegal aliens. 

In its suspension memo, the Department of Homeland Security acting Secretary David Pekoske stated deportations would be halted to prioritize limited resources. In reality, this order would cause a greater strain on DHS resources.

Being unable to deport illegal aliens with final orders of removal leaves DHS with two choices, neither of which is good. DHS could either detain the individuals who were supposed to be removed, tying up limited detention space and DHS resources that the department is allegedly trying to preserve, or, it could release the individuals awaiting deportation.

Individuals who know they will be deported are not going to turn themselves in when deportations resume, especially with President Joe Biden seeking to legalize millions of illegal aliens.

Instead, they will scatter across the country and flee to sanctuary cities or other places that refuse to enforce federal immigration law. ICE would have to find and detain them again, if that is even possible, wasting even more of DHS’ resources. 

In the recently released “Enforcement Lifecycle Report,” DHS found that individuals who are released from detention are least likely to be repatriated. 

From fiscal years 2013-18, illegal aliens who had been partially detained and had a final order of removal were more than 45 times greater to have no confirmed departure than those who had final orders but had been continuously detained.   

Suspending deportations of individuals who have a final order of removal sends exactly the wrong message to illegal immigrants. It tells them that if they can make it to the United States, there will be no consequences for breaking the law. Remaining in the U.S. illegally is made easier because it takes years before immigration proceedings reach a final outcome. 

The “Enforcement Lifecycle Report” found that of the immigrants from Central America who illegally entered the U.S. in fiscal year 2019, more than 68% still had not received a final outcome.

It is not much better for previous years. Of those who arrived in fiscal year 2018, more than half still await a final result, and for fiscal year 2017 arrivals, 46% still do not have a final outcome.

Suspending deportations tells future arrivals they too will remain in the U.S. with overt government approval—which is amnesty by itself—before eventually becoming eligible for a green card under the Biden administration’s legalization aspirations.

The Immigration and Nationality Act, as written by Congress, states that “when an alien is ordered removed, the [secretary of homeland security] shall remove the alien from the United States.”

As Tipton noted in his injunction order, “shall means must.” By enjoining the Biden administration’s suspension of deportation, Tipton is doing what the Biden administration is not—he is ensuring that the law is enforced.

In addition to its duty to uphold the law, the Biden administration has the obligation to set policies that are consistent with the law and to responsibly administer resources. Allowing illegal aliens who have final removal orders to remain in the U.S. indefinitely is wholly inconsistent with U.S. immigration law, handcuffs immigration enforcement officers, and encourages more law-breaking by future immigrants.

Furthermore, it shows a weakness of resolve to secure the borders of the country the president swore to protect.

During his presidential transition, Biden decelerated how quickly he would roll back the Trump administration’s “Remain in Mexico” program and related asylum programs from his first day in office to six months, stating he did not want 2 million people on our border. Regrettably, his deportation suspension order and other immigration actions he has taken his first week in office have the U.S. on that very trajectory.

The case now proceeds to the merits, where the parties will introduce evidence, and the U.S. District Court for the Southern District of Texas will decide whether to issue a permanent injunction. Regardless of what happens at the district court level, the loser will no doubt appeal the case, so this issue is far from being settled.

This piece originally appeared in The Daily Signal

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