Judge Blocks DHS Guidance On Discretion in Deportation Decisions
This case law update was written by James P. Garay Heelan, an attorney at the law firm of Shaw Bransford & Roth, where he has practiced federal personnel and employment law since 2012. Mr. Heelan represents federal personnel across the Executive Branch, including career senior executives, law enforcement officers, foreign service officers, intelligence officers, and agencies in matters of federal personnel and employment law.
A federal judge in Ohio this week enjoined the Department of Homeland Security (DHS) from enforcing a directive that instructed Immigration and Customs Enforcement (ICE) officers to prioritize certain noncitizen groups for arrest and deportation. The judge then denied DHS’s emergency motion to temporarily stay the injunction, while DHS considered whether to ask for a longer stay pending its appeal to the Sixth Circuit.
Congress charged DHS with implementing laws governing the removal of noncitizens from the United States. Federal statute requires DHS to detain certain noncitizens with criminal convictions pending their deportation proceedings. The statute only allows DHS to release those noncitizens when it is “necessary” for witness protection purposes and the noncitizen “will not pose a danger to the safety of other persons or of property and is likely to appear for any scheduled proceeding.”
On September 30, 2021, DHS Secretary Alejandro Mayorkas issued new “permanent guidance” implementing the removal statutes. That “permanent guidance” instructed ICE Enforcement and Removal Operations personnel to not “rely on the fact of conviction…alone” when making enforcement decisions. The guidance required those personnel to “evaluate the individual and the totality of the facts and circumstances” and to exercise their “discretion.”
Arizona, Montana, and Ohio sued in the U.S. District Court for the Southern District of Ohio, for an injunction on the DHS Secretary’s guidance. They argue the guidance skirts Congress’s immigration enforcement mandates by prioritizing certain high-risk noncitizens for apprehension and removal. The States presented evidence that under the Secretary’s new guidance, DHS detained fewer noncitizens with criminal convictions compared to prior year. If that trend were to continue, the states argued they, would incur the costs of increased spending on public safety, health care, and education.
DHS disagreed and moved to dismiss the lawsuit, arguing that seemingly mandatory statutes must be read flexibly to permit efficient law enforcement. DHS presented evidence that arrest of noncitizens with aggravated felonies increased between February and August 2021. On that evidence, DHS argued a targeted enforcement approach will save the States money in the long run because it increases the odds the worst offenders will be taken into DHS custody.
On Tuesday, March 22, Judge Michael Newman issued a 79-page decision denying the DHS motion to dismiss and granting the States’ request to enjoin much of the Secretary’s September 30, 2021, permanent guidance.
Judge Newman acknowledged that federal officials have discretion when enforcing immigration laws, writing that the "balancing analysis is acceptable at certain points in the removal process." But the DHS went too far, Judge Newman held, by giving ICE more discretion than Congress intended them to have.
He wrote that Congress mandated the detention of immigrants with certain criminal convictions and those with final orders of deportation, and the DHS guidance “displaces the custody and removal factors Congress intended DHS officials to consider for its extra-textual totality-of-the-circumstances analysis.”
Judge Newman’s nationwide injunction prohibits federal agents from relying on the Secretary’s permanent guidance to make "custody decisions" about immigrants subject to mandatory detention. He also blocked the use of the permanent guidance to release or delay the deportation of immigrants with final orders of deportation.
Almost immediately, DHS filed an emergency motion asking Judge Newman to for a 14-day “administrative stay” on the injunction to allow DHS time to decide whether to seek a stay pending its appeal of the injunction to the U.S. Court of Appeals for the Sixth Circuit. Judge Newman denied the request on technical grounds and left the door open to consider a stay pending appeal if DHS filed one.
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