Biden faced his first judicial loss as President earlier this week when a federal judge in Texas blocked the administration’s attempt to halt most deportations for 100 days.
As part of Biden’s Day 1 stack of 17 executive actions, more than any recent administration, the President ordered state and federal law enforcement to suspend the deportation of most illegal immigrants. However, recent arrivals and unlawful immigrants accused of terrorism can still be removed. According to CNN, “the Biden moratorium covers most deportations but excludes individuals who came to the US after November 1, are suspected of terrorism or espionage or pose a danger to national security, have waived rights to remain in the US or who’ve been determined removable by the acting director, according to an agency memo.”
A DHS news release claimed the cessation of deportations was made “to ensure we have a fair and effective immigration enforcement system focused on protecting national security, border security, and public safety.”
Within days, the Texas attorney general Ken Paxton filed suit in a Southern Texas district court asking for an injunction against the order. “On its first day in office, the Biden Administration cast aside congressionally enacted immigration laws and suspended the removal of illegal aliens whose removal is compelled by those very laws. In doing so, it ignored basic constitutional principles and violated its written pledge to work cooperatively with the State of Texas to address shared immigration enforcement concerns,” the Paxton stated.
In the Trump administration’s final days, Texas and the DHS came to an agreement where the DHS will consult with Texas on any future changes to immigration enforcement. Texas primarily sued on those grounds.
On Tuesday Judge Drew Tipton, a Trump appointee, ordered a 14-day delay of implementation for Biden’s controversial executive order.
Tipton did not rule on Texas’ agreement with the DHS as it’s “of such gravity and constitutional import that they require further development of the record and briefing prior to deciding their merits,” rather he issued a temporary restraining order against the administration under the “Administrative Procedural Act.” The same act used by Justice Roberts to strike down Trump’s attempt to end DACA.
“Paxton argued the state would face financial harm if undocumented immigrants were released into the state because of costs associated with health care and education, and said the moratorium would also lure others to come to Texas,” according to the Texas Tribune.
According to Tipton, plaintiffs are entitled to such relief when their case is likely to prevail in court, and when there’s a “substantial threat of irreputable harm” to the plaintiff. The harm must outweigh any harm to the defendant and the TRO cannot disserve the public interest.
“Texas argues that ‘the categorical refusal to remove aliens ordered removable will encourage additional illegal immigration into Texas,’ thereby exacerbating its public service costs. Such injury is not, as a legal matter, purely speculative,” Tipton added. “The Court finds that the foregoing establishes a substantial risk of imminent and irreparable harm to Texas.”
Outraged over the ruling, Kate Huddleston, an attorney for the ACLU of Texas, who filed a brief siding with the administration, said “Paxton sought to overturn the results of the 2020 presidential election by attempting to baselessly suppress votes; now he 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.”
Internal emails circulating through Houston’s ICE office show officials were initially confused over the executive order’s extent and intent. In one email thread, officers were ordered to “release them all, immediately. No sponsor available is not acceptable any longer.”
That command was retracted the following day, stating “high risk detainees” are still subject to deportation.